930 OLD AMERIcAN .INS. CO. v....WIGGINS. . , . • OLD' AMERICAN INSURANCE .COMFANY:/)..-WIGGINS; - • •Opinion delivered ,Iuly 1; -1929. INSURANCE—KNOWLEDGE OF " ' AGiNi.- KnOWWge relating to the physical condition of the : insured which came to the agent of the insurance companY .while writing the application for insurance
ARK.] OLD AMERICAN - INS. CO . V. WIGGINS. 931 • . became the knowledge of the company; and the insurance company was bound thereby. 2. J N SURANCE-BREACil . wARRA.iv ; ri".—Where an applicant for life insurance arisered with refeience to her phySiCal condftion :she Wa's pregnant', but the-agent of the inSurance company; with-, :out iler f knowledge; 'wrote as hm ., Answer-that she was not preg-' ,• narit, there :was 'no breaCh, of .Vvarranty on her part,' and the insur--, :i ance company was liable.. •Appeal -fteln. Hot Spring-Circuit -Court ; Thomas ,E. Tol,er,r,ludge; affirmed. . ,.1 Crcodc, for -appellant.- -.H...B:-Means,. for appellee. - • .1 KIRBY, _J. Appel1ee,4the= J beneficiary --named. in -the policy Pr . cettificate of. insurance upon the life of his wife, g able -Wiggins; brought this. suit to - recover $400, allege.d to be the balance due under the policy for $500. and:for penalty.: and attorney's fees, and recovered judgMent, frOni.wbich- the' :appeal is:prosecnted. -:.The complaint :alleged -the issuance : of the policy:on the 1st . day :Of July, 1927; inintly to •CurtiS Wiggins and others for the. pament of -$500-upon the proof of death of. Curtis: Wiggins , and Mable- Wiggins that Curtis Wig-gins: was named...-as t . beneficiary of Mable- Wiggins.; the ipament.of all premiums, the death of the insured Mable Wiggins..on- the -10th day-of Way, 1928, the payment as provided . :in the-policy-upon -the next.-•day after information of the death of the insured of $100, denial of Habil--ity- under the-policy on A'ecount , of false answers in the • application . .for insurance; :the:application stating that gable Wiggins •was not -pregnant .when : in fact- she* was 'Pregnant: 'That i • prior :to -and! at the time of making -the .application for ihsurance;-- Mable Wiggins and Curtis Wiggins, the plaintiff, adviSed; notified' -and inforined•the company : and its agents of Mable; Wiggins' true condition, that she .. was-Tregnafit, - -but the_ clef endant 's agents . who prepared:the : aPplication for,the policy; knoWing her -true condition, cafelessly ffaudulehtly stated .in the application fOr insurance. that : said : Mable .was
not pregnant, which statement •was . .unkno-wn to her -or the Plaintiff. at :the time. ' • -:.
932 OLD AMERICAN INS. CO . v. WIGGINS. [179 The answer denied the other allegations of the complaint, admitted denying liability under the policy on account of false answers in the application for insurance, and admitted that the application stated that Mable Wig-gins was not pregnant, when in fact she was. Denied that she or Curtis Wiggins had advised, notified and informed the defendant or its agents of her condition of pregnancy and that its agents who prepared the application for the policy •knew the true condition of Mable Wiggins and carelessly or negligently stated on the application that she was not pregnant and that such answer was unknown to her or the plaintiff. Denied plaintiff's right to attorney's-fees, alleging the statute under which the claim was made to be unconstitutional, contravening the Federal Constitution. The application which was attached to and made part of the policy was exhibited with it, and shows Mable Wiggins was asked the question, "Are you pregnant at this time?" Answer, "No." The application also contains the statement and warranty that the applicant knew that her insurability was to be determined withoUt medical . examination and by the answers made to the questions, and that before signing the application she had read or had had read to her each of the answers, and that ea r h of same was unqualifiedly true, warranting them to be so, etc. The policy contained the following provision: " The company shall not be liable in any amount for death resulting within 10 months from the date of this policy as a direct or indirect result of pregnancy or childbirth." The policy was issued on June 4, 1927, and her death occurred on the 10th day of May, 1928. Appellee, being asked the condition of his wife at the time of applying for the insurance, stated the agent asked if she was pregnant, and he told him she was, and the agent said, "Well, then, I don't know whether I can write her or not until I see further," and he went away, and in a few days returned and told appellee, "It is all right. I am ready and will write up your policy." He
ARK.] OLD AMERICAN INS. CO . V. WIGGINS. 933 stated that his wife did not sign the application; that she could not writ& or read, and he did not know who signed it for her. That the a.gent had him to sign his name, and that he . did not know of his. wife's signing by making her mark with a witness, and that she did not answer the question in the application, "Are you pregnant at this time?" "No." That he did not ask her, at the time of ' filling out the apOication, anything about being pregnant, but they had told him a number of days before that she was pregnant. The agent taking the application did not testify, and the application a.s signed did not purport to be-signed- by -Mable-Wiggins by mark. --• - - The company paid the $100, according to the terms of the policy, on the_day after being informed of. the death of Mable Wiggins, and later, in checking up on the claim, denied liability because of the answer, "No," by the insured, appearing in the application to the question, "Are you pregnant at this time?" • There - is no contention on the part of appellee that the insured was not pregnant at the time the application for . the policy was made, or denial that she gave birth to a child on the 27th day of September, 1927, after the date of the policy on the 4th day of June, 1927, or that her death occurred on the 10th day of May, 1928. The beneficiary's statement that he had told the agent, when applying for insurance, shortly •efore the application was written, that his wife was pregnant, and had been in= formed by the agent that . he did not know whether he could write a policy until he saw further about it, and in a few days Was informed by him that "It is all right. I am ready and will write-your policy up," was undisputed. Neither was his statement tbat his wife could not read or write denied, and he also testified that no question was asked her by the agent at the time he wrote the application about Iler condition. . The jury found against the appellant, on conflictin; testimony, that no false warranty had been made as to the condition of pregnancy of the insured, that no ques-
934 OLD AMERICAN INS. CO . v. WIGGINS. [179 tion about it was asked her, and the anSwer "No" to the printed question was not made or authoried by the insured; but written by the agent taking the application; notwithstanding he had before been fully inforthed of the pregnancy of the insured. • In Southern Insurance . Co. v. Floyd,.174 Ark. 373, '295 S. W. 715, it was said, quoting •syllabus "Knowledge relating to the physical condition 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 policies, becomes the knowledge of - the company, and the insuran: e 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 dfity of 'ask- . ing the applicant questions cencerning his physical condition." . . The testimony of the beneficiary . shOWs that ' the , phi:- ant correctly and truthfully . answered all questions about her physical condition propounded tO hei, , and is to the effect :that there was no collUsion betWeen the agent of the company and the 'insured; 'and it is alSo undisputed that the agent had knowledge of the insUred!S pregnancy at the time he wrote the Applicatiom . for the insurance. It is also true that the death Of 'the insured occurred more than ten months after the delivery of the policy, and its validity could not therefore be 'affected nor liability by the cOmpany escaped under the prOviSion..for non-liability for death resulting within . 10 monthS froth the delivery of the policy, as a result, directly or indirectly, of pregnancy or childbirth, if suCh had been . the * ease, and it was not shown to be. The issue was submitted to the jury on proper instructions, and there was substantial testimony in . support of .the verdict, which will not be disturbed by this court. The judgment is accordingly affirmed.
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.