150 So. 110 | La. Ct. App. | 1933
There was judgment in favor of the plaintiff as prayed for, and defendant has appealed.
The case was referred to the court en banc, upon request of the attorney for both parties because, counsel for defendant contends, that there was a conflict between the decisions of this court with reference to the application of Act No.
The case was tried on the following statement of facts:
"The policy sued on was issued by the defendant to George McBride on September 19, 1932.
"The total premiums paid on the policy amounted to $2.10 which paid it up to November 1st, 1932.
"George McBride was admitted to the Charity Hospital on November 3rd, 1932, and discharged November 9, 1932. His complaint was diagnosed as cancer of the stomach.
"George McBride was re-admitted to the Charity Hospital on November 11, 1932; he was operated on November 18, 1932, and died at 12:45 a. m. November 19, 1932, of carcinoma of stomach.
"It is admitted that Dr. Faris testified that the cancer of which George McBride died was of more than three months duration.
"It is admitted that George McBride may not have known that he had a cancer.
"It is admitted that George McBride was not examined by a physician on behalf of the defendant prior to the issuance of the policy.
"It is admitted that no copy of the application signed by George McBride was attached to the policy.
"The foregoing is subject to legal objections as to admissibility, and the right is reserved to object to the admissibility of the hospital record and of the application signed by George McBride."
Counsel for plaintiff, in accordance with his reservation, objected to the introduction of any evidence tending to show that deceased made a statement that he was in good health, first, because the application is not annexed to the policy, and, second, because the insured was not examined by a physician prior to the issuance of the policy, relying on the provisions of Act No.
Counsel for defendant counters by saying that under the provisions of section 7 of Act No.
While this argument is interesting and not lacking in persuasion, we believe it sufficient to say that the Supreme Court and the Courts of Appeal of this state have in a great many cases applied the acts in question to suits on Industrial Life Insurance policies, and in the two cases under attack we gave a full and complete explanation of the law with reference to the subject. We, therefore, adhere to our original views. Whitmeyer v. Liberty Industrial Life Ins. Co., Inc.,
For the reasons assigned the judgment appealed from is affirmed.
Affirmed.