| Ark. | Nov 19, 1923
This is an appeal from a judgment obtained in the circuit court of Prairie County, Southern District, by appellee against appellant for $3,000, upon a life insurance policy issued by appellant to appellee’s husband, Charles A. Witt, on the twelfth day of October, 1921, including a twelve per cent, penalty and attorney’s fee of $500. The insured died on the twelfth day of March, 1922, and when proof of death was made, appellant refused to pay the policy, whereupon the beneficiary instituted this suit to recover thereon. Appellant interposed the defense that the insured made false answers to the questions propounded to him in the written application for the insurance.
The policy sued upon contained the following paragraph :
“Entire Contract. This policy and the application therefor constitute the entire contract. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy, unless it is contained in the written application therefor.”
The application referred to in the paragraph quoted contained the following statement, questions and answers, over the signature of the insured:
“I agree, on behalf of myself and of any person who may have or claim any interest in any policy issued hereon:
“(d.) That all statements and answers written herein, as well as those made and to be made, to the medical examiner in part II of this application, are full, true and complete.
“(5) Detail all illness, disease, operations, accidents or injuries you have had since childhood. (Give clinical history below).
Operation: appendicitis. Date: year, 1917; month, July. Duration: 2 weeks. Complications: none. Results: good. Name of medical attendant: Dr. J. P. Runyan, Little Rock, Arkansas.
“(6) (d) Has any physician ever expressed an opinion that your urine contained sugar or albumen or casts ? (Give details).
“ (6) (d) No.
“ (8) Are you now in good health? If not, what is the cause?
“(8) Yes.
“I certify that the above answers are full, correct and true, and agree that all of the above shall constitute part II of my application.”
Appellant contends for a reversal of the judgment upon three grounds: first, that the answers made by the insured in his application avoided the policy; second1, that the court erred in excluding a sworn statement made by the-insured to the Business Men’s Assurance Company on June 8, 1922, relative to his physical condition from November 22, 1921, to January 8, 1922; -and third, that the court erred in telling the jury that the burden was upon appellant to show that the representations made in the application were wilfully made with intent to defraud it.
(1) It is claimed that the testimony reflects that the answers made in the application were not full, correct and true, because appellant concealed the fact that he was confined to the house for over thirteen' weeks on account of sickness in 1918; that he was totally'disabled for fourteen weeks in 1920 on account of a fall from -a tree; that he had high blood pressure in February, 1921, and was under medical treatment on that account until the policy was issued; that he had nephritis and arteriosclerosis.
Concerning the illness in 1918, it appears from the testimony that it was the result of a malarial condition followed by an operation for appendicitis and adhesions. This operation was divulged to the company in the answer made, and the name of the attending physician was given, so the company had an opportunity to investigate- and satisfy itself whether the operation and the illness incident thereto had materially affected his health and longevity. It is the law that the insured, in answering such a question as that propounded1, is only required to detail such illnesses, diseases, operations, accidents or injuries which had materially affected his health or longevity. National Annuity Assn. v. Carter, 96 Ark. 495" date_filed="1910-11-21" court="Ark." case_name="National Annuity Ass'n v. Carter">96 Ark. 495.
Concerning the illness in 1920, it appears that it was occasioned by a fall from a tree. The record does not disclose that any ill effects resulted from the fall. His recovery was complete. The burden was upon appellant to show that it had materially affected his health and longevity. No such showing was made.
Concerning the claim that the insured concealed the fact that he had kidney trouble and hardening of the arteries, it appears that he was ignorant of the fact, if it was a fact, that he had nephritis and arterio-selerosis. Dr. Murphy, who testified that he discovered the insured had this disease some time between February and October, 1921, was unable to say whether he ever imparted this information to him. This court is committed to the doctrine that “where answers in an application for insurance constitute merely representations, a misrepresentation will not avoid the policy unless wilfully or knowingly made with intent to deceive.” Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101" date_filed="1912-10-14" court="Ark." case_name="Metropolitan Life Insurance v. Johnson">105 Ark. 101.
Concerning the high blood pressure, Dr. Murphy testified that he examined the insured in February, 1921, and discovered that his blood pressure was 250; that he informed him of this fact, and advised him to refrain from any exertion of any kind, and placed him upon a diet; that the blood pressure was reduced to 200, and that, upon an examination of the nurse’s record, he found that it went down to 160; that from the time of his examination in February the insured was under his observation and treatment at intervals until his death. Dr. McKnight testified that he had occasion to test the insured’s blood pressure to ascertain whether it was feasible to administer gas to him for the purpose of extracting his teeth, and that he informed him that he had high blood pressure; that he could not remember when he made the examination, but that it was some time during the year 1921. Dr. Stout, appellant’s examining physician, who made a very complete and thorough examination of the insured on October 12, 1921, preparatory to issuing the policy, stated that his blood pressure was 135, or about normal; that he had no symptoms of .nephritis or arterio-sclerosis, and that he was in good physicdl condition. A large number of witnesses, who came in daily contact with the insured, stated that he was up and about his business practically all the time, and that apparently he was in the best of health. The evidence was therefore conflicting as to whether the > insured had high blood pressure before and at the time the examination was made and the policy issued, but if his blood pressure had been high, whether it' had affected his health or longevity. Under the evidence those things became matters of dispute for determination by the jury.
(2) . The sworn statement of the insured relative to his physical condition on and after November 22, 1921, more than a month after the policy sued upon was issued, was inadmissible under the rule announced in the case of Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245" date_filed="1918-05-06" court="Ark." case_name="Lincoln Reserve Life Insurance v. Smith">134 Ark. 245. The court said in that case: “The policy constituted a contract between the company and the beneficiary, either under an assignment or under the original designation in the policy itself, and it was not competent to prove, as ag’ainst the interest of the beneficiary, the declarations of persons whose life was' insured under the policy.”
(3) . Appellant admits that the instructions given by the court correctly placed the burden upon it to show that false, material representations, which induced the issuance of the policy, were made to it by the insured knowingly and wilfully, but contends that they are erroneous in telling the jury that they must also find that the insured made the misrepresentations with the intent to defraud the company. This court has said that the misrepresentations must be made with intent to deceive the insurer. Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101" date_filed="1912-10-14" court="Ark." case_name="Metropolitan Life Insurance v. Johnson">105 Ark. 101; Mutual Life Ins. Co. v. Owens, 111 Ark. 554" date_filed="1914-02-23" court="Ark." case_name="Mutual Life Insurance v. Owen">111 Ark. 554. We think the word “defraud” was used in the sense of “deceive,” and that.the instructions, in substance and effect, conform to the law laid down in the two cases last cited.
No error appearing, the judgment is affirmed.