372 SOUTHERN INS. CO . V. FLOYD. [174 SOUTHERN INSURANCE COMPANY V. FLOYD. Opinion delivered June 13, 1927. 1. INSURANCE—JURY QUESTION.—In an action on a policy of life insurance, evidence held to raise the question for the jury whether insured had tuberculosis at the time of his application, in which he made the statement that he had never had tuberculosis. 2. EVIDENCE—HEARSAY—PRWILEGED MATTER.—‘111 an action on a life insurance policy in which the insurer contended that insured had tuberculosis at the time of the application and affidavit of deceased doctor, who attended insured in his last illness, that he
' ARK.] • SOUTHERN' INS. CO . v. FLOYD. 373 treated insured for tuberculosis prior to application, was inadmissible both as being privileged matter and as matter of hearsay. • INSURANcv—IcrrowLEDGE OF AGENT. Icnowledge relating to the physical condition of the insured which comes to the ;agent of the • nsurance cOniPany, While ' he ia perforMing the 'duties ' of his agency in receii7ing apPlications for insiiran6e and' delivering pol-1 iCies, becomes the knowledge of 'the company, and the insurance icompany is bound thereby, in spite of a provision in the policy • to the contrary, where the agent who . solicited the business' was charged with the duty of asking the applicant questions concern - ing his physical condition. i . Appeal from Crawford Circuit .Court ; James Coeh ran, Judge ; affirrned. John L. Crank, for .appellant. k ' . •.• .Gebrge, G. Stockard, for-appellee. SMITH, J : Appellant insurance company issued a policy of insurance to W. M. Floyd, payable to his wife, ‘1 T or the, sum of $100, and increasing $20 per month until • a 'maximum of $1,000 was reacted. The insured died It August 5, 1925,. and the policy at that tin* if valid, was
worth $580, and the beneficiary brought suit for that amount, together.with penalty and attorfiey!s fee: The . policy was written July 8, 1923, and the insured' Was not required , to submit to a medical examination to obtain it. He was required, however, to make an application in which numerous questions were asked concerning the \t eXiSting and Previous condition Of his health. The question was asked: . "Give the name and . address Of doctor last consulted and date," to which question the applicant answered: , "Doctor DoWney, of Cecil, Arkansas=-9 years ago." .. . ‘) Certain diseases were sPecifically inquired about, one of these being rheumatism, and the applicant answered: \ "I had one attack of rheumatism about 6 years ago." ■ ) , "The application bontairied the question: "Have , y-6111 ever had any disease of the following organs : lungs ('( tuberculosis?" and to each of thesè . qUeStions the appli-`,‘, cant answered: "No." .After answering- the various questions asked, the applicanC signed the following statement : '
374 SOUTHERN INS. CO . v. FLOYD. [174 "It is hereby understood and agreed that each and all of the foregoing statements and answers were made by me to obtain a policy of insurance in the Southern Mutual Life Ass'ociation, and in consideration of the reduced rate of the policy which may be issued me hereon, and the fact that no medical examination is required, the Southern Mutnal Life Association, relying solely on my statements and answers to questions contained herein for information as to my eligibility, I do hereby warrant and declare said answers and statements to be absolutely full, true and complete. It is hereby covenanted, declared and agreed that all statements answers and provisions contained in this application shall, together with the by-laws governing said association (now in force or which may hereafter be adopted) be the basis of and form a part of the contract between the applicant and said association, and the policy which may be issued upon this application shall be accepted by said applicant upon the express condition that, if any (, statements or answers in said application are untrue or are in violation of any term or condition or covenant of said policy or by-laws (now in force or which may' hereafter be adopted), then said policy shall be null/ and void, and all benefits thereunder shall be forfeited." The testimony shows that the insured died of tuber- St culosis on the 5th day of August, 1925, and it is insisted } by the insurance company that the insured was sufferin o, ) from that disease at the time the policy was issued, and that this condition constituted a breach of the warranty to the contrary, which invalidated the policy. It is also insisted by the insurance company that the applicant falsely stated that the last physician consulted by him was Dr. Downey, nine years prior to the date of the application, whereas the insured had consulted and been treated by Dr. Hill, of Mulberry, Arkansas, six years before the date of the application. The court gave, at appellant's request, an instruction which told the jury that the answers contained in the
SoJIIIEIiN iNS: CO. v. FLOYD '. 375' ' application *ere • Warranties,; and that, Tf the ' ansWerS'' were false, there cotild'be 'no recoVery On the pOlicY . sued— on, but appellant. insists that, under the undisputed 'teS-::' timony; a verdict should have been directed in its favor, for ; the reason that the, insured had tnbercidosis at the time of his aPplication, and Made , a false stalement as to the da , te .. . wh - en he had last conaulted *physician. . *- The - following . testimony . was offered tending to show . that the insnred had . tuberculosis at the date of • his application : • The father, of .the insured, made an . - affidavit to that effect,. but, when called, as a witness. by , appellant, he repudiated. the . affidavit and . testified. that he could not read or write, and that the affidavit i had not. been: read over to him, and -that he did not state that.his. son, the insured, 'had tuberculosis. . An attempt 1 .v a . s .made. to offer in . evidence an affidavit _made by Dr. Hill, who -attended the insured- in his last illness:. ,In Dr. .Hill's affidavit he. stated that he had treated the insured for tuberculosis in 1920 and 1922,• which was prior to the application for the policy. Dr. Hill was . dead at the . time of the trial, • and an objection was. sus-. . ) tained to the introduction of his affidavit upon the ground. 'that the :matter was privileged and that the affidavit was ) hearsay . There was no error in this ruling. This affidavit was. not ,a deposition, ,and was properly excluded. by the..conrt. . , . . - . . .. • Dr. J. E. Johnson, .a physician in charge of a hospital., devoted- td the . treatment of tuberculosis in Fort Sthith, testafied. -that he treated the instired fo'r tuberculosis in. June, 1924; and that the case was then chronic. This ) . I\ however, was 'practically . a year after i the ' date ' of • the. ; application, and' Dr. J, B. Trice; who Was called- as-, a witness for appellee, testified that the disease of tubercu-': log s 'could become 'chronic in • that . time. . . . A. B. Henderson, A druggist, testified that, in the fan 'and winter of 1921 and 1922, the insured'was abouf five feet eight . inches tall, weighed only about 135 pounds,' and - was 'stoop-Shouldered and thinchested and had a
376 SOUTHERN INS. CO . V. FLOYD. [174 sallow complexion, and that he saw Dr. Hill give the insured a medicine which was used in the treatment of tuberculosis. The witness could not state, however, that the medicine had been prescribed for the insured himself. We cannot say that the jury must necessarily have found from this testimony that the insured had tuberculosis at the date of his .application. In the very recent case of Modern Woodmen of America v. Whittaker,1.73 Ark. 921, 293 S. W. 1045, it was held that the statement of an applicant for insurance, which was made a warranty by the provisions of the appli-. cation, that he was in good health, should be construed as meaning only that the insured believed himself to be in r ood health. It is -also insisted for the reversal of the judgment in the plaintiff's favor that the insured falsely answered that he had last been treated by Dr. Downey nine years before the date of the application, whereas the testimony, showed he had been treated six years prior to that date by Dr. Rill for rheumatism. This last testimony was elicited from the beneficiary in the policy, who testified in her own behalf. She , testified that she was present when the application for the, insurance was made, .and that her husband stated to the agent of the insurance company, who filled the blanks, that Dr. Hill had treated her hilsband for 'rheumatism six years prior to that date, but that it appeared . the agent had not written down the answer in full. In the case of Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792; if Was held that "knowledge affecting' the rights of the insured which comes to the agent of the insurance company while he is performing the duties of his agency in receiving applications for insurance and delivering pcilicies, becomes the knowledge of the company; and the insurance company is bound thereby, in spite of a. provision in the policy to the 'contrary, where the agent who solicited the business was charged with the duty . of asking the applicant questions concerning his • physical condition." See also
• People's-Fire Ins*. Assn: -of . Ai-k. v. Goyne, 79 'Ark. 315, 96 S. W. 365, , 16 L. R. A. (N.: $.),' 1.180; Springfield Mutual Assn.' v. Atnii),.169 A:r*. 968, 279 S. W. 15; Ark. A5tate Lifelns:Co v Allen,..1,66 :Ay.k ,490,. 266 . S:.A8T. 449, Old Am. Ins..Co. v. Wexman, 160 Ark...571, 255. S; W. 6 ; Home Mut. Ben. Assn. 1/, Rowland; 155 Ark. .450,. 244 S. 719; Home Mut. Ben. Assn. v. Mayfield,' 142 • Ark. 240, 218 . S. W. 371. • . The I,estimony . 4 the beneficiary is to the effeet that the applicant correctly and truthfully answered the questions as to the names of the physieians ivho had treated her husband, and is ' to , the- effect that there was 'no 'eollu-. si on between ;the . company 's . agent and , the insured. Moreover, the application .contains the answer that the i applicant . had an attack of rheumatism six years before 'the 'date of the application, so that the insurance company 1. • was udVised , of that- fa.ef when the'poliey was written, this heing the oceasion When the. beneficiary 'testified her ■ . husband had been treated by ' Dr. Hill. ' In the appliea-\ . tion . the ins-axed *as aSked 'to • give the nanies of , two ; d'octorS who' knew liim; and . ' the name and addres g of ‘ 'Dr. Hill was giv:en ill answer 'to this queSti . on. . ' . Under the faCts stated we cannot say that the jUry ,1 w . as • not , warranted hi finding thai , there had 'been no breach of the warranty in either of the particulars stated, and •the judgnient ninst therefore'be affirnied, and it is ' so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.