ARK. NAT. LIFE & ACCIDENT INS. CO . V. BLANTON. 1165 NATIONAL LIFE & ACCIDENT INSURANCE COMPANY V. BLANTON. 4-4381 Opinion delivered October 19, 1936. 1. INSURANCE—PROVINCE OF JURY.—Where, in an action on a life insurance policy issued without medical examination, and providing that insurer should not be liable thereon unless insured was in sound health on date of policy, .and the evidence as to condition of insured's health at that time was conflicting, it presented an issue of fact for the jury; and where the jury accepted as true the testimony of beneficiary and daughter of insured which was corroborated by other evidence and circumstances, the Supreme Court held not warranted in invading their province, since the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. 2. INSURANCE—RELEASE. —Where an action on a life insurance policy was defended on the ground that, in consideration of return of premiums paid appellee had released insurer from all liability, and the testimony showed that a number of agents of insurer visited appellee, and, in their efforts to secure the release, told her that if she tried to get the insurance she would be sent to the penitentiary, and the jury accepted this testimony as true, the Supreme Court will also accept it as true, , and hold that it established such duress as to render the contract of release unenforceable. ApPeal from Jackson Circuit Court ; S. M. Bone, Judge'; affirmed. • Barber & Henry and Ira J. Mack, for appellant. J. P. Parish, for appellee. BUTLER, J. On March 21, 1934, Della Blanton signed an, application for a life insurance policy upon which, March 26, a policy was -issued by appellant company. She died on May 8, 1934, the premiums due on said policy hay ing all been regularly paid,- Notice of death was given by appellee, the daughter of Della Blanton and the ben,
1166 .NAT. .LIFE & ACCIDENT INS. CO. v. BLANTON [192 eficiary named in the policy. On June • 29, 1934,• appellee was paidthe sum of $3.60 by the appellant company, the ammmt of premiuMS. which had been paid • by the'. assured • or her agents,: and.:executed a. written instrument whi6h recited that the above sum was accepted in settlement of all claims under the policy which she surrendered for the following reason: "Not . an insurable risk." After this appellee •filed suit •against the-appellant 'to recover 'the face of the policy in the sum•of $540 less the $3.60. She alleged that the policy was . in full force at the time of the death of the assured, and, further, that appellant had denied liability on acCount of: the policy, 'and, through misrepresentation, threats and ,fraud, .obtained.a•release from her .which she alleged , was .not. binding upon:her. The . ansWer denied the allegation , relating to' . the .procurement: of . the . release. which:was pleaded:in: , satis-'faction of appellee's demandand tbe further defense was tendered that the-assured, in her appliCation, .stated-that She: . Was in sou . nd hea . lth and n , ot ' sufforing froth al-1Y dis- eaSes named , in . the. policy 'for , Which. no . obligation.:was assnmed by the insurer ;_that . appellant .did not:require a medical examinatiombut.relied npon the statements Made by the assured in•her application':Which she . welb knew at the'iime 'were false ;. that , at the tiMe of the . -S . aid'aPP „ li . ca- tion 'and . at the , time, of the delivery: of' the policy the assured:was in nnsound.health and sufferinglfrom diseases of. the: :heart, liver, kidneYs- and lungs and her general ImalthWas-poor and : had . been . foi: sOme . yearS as she knOW.-'` • ' • On the issues joined at the trial of the case evidence WaS addnced which resnited-in'a.'verdict and judgM . ent in favor of the appellee , for the amount f sned'for... The court therenpon assessed a . penalty Of ' tWelve per, cent. and an attorney's fee, whiCh, togethdr With the amount 'of 'the . verdict, • aggregated'the , suncOf $7 • 52.54.• : FrOni that judgMent an appeal has been Anly prosecuted 'and the jtidgment is-'sought to be reversed for failure • of the trial couirt, to:Airect • a verdict' in ' , behalf - of' aPpellant toti-its motion duly.made. motion' Wa's grounded -upon the contention•that the;PoliCy'ivas void beCause of- thiSrepre
AMC] NAT. ' LIFE .& ACCIDENT INS. ' CO. v. • BLANTol. 1167 sentatiOns by the 'assured i.regarding-her: bealth„ which, it: iS claimed, ;were• established . by the • undisputed evi denco; also, upon . the ground that the evidence failed- to establish the• invalidity, of the release- for the:Causes •a. leged hy the appellee. • On the first :contention it• may be .said .that-the: ! question of the:,health of the- assured wa g one of, fact•..: Old American Ins: Co. v: Davis; 175, Ark. 1170, 300 . S. W. 415. The• evidence adduced on behalf of appellee !consisted ..Of the testimony of a•number :of lay witnesses who testified that they had known the assnred..for some considerable time; before. her death .and„in. a general ,way„ testified that during..thattime she : had.not heen well.: Some testified as. to conversations- had , with,her in.which she had,.stated around..the. :first- of March,•193 . 4, that, she had 'been:sick with the flu a month or. two preVious. to that time., Some testified that shoseemed to have ,".smothering that :her legs ;were, swollen ; ,to:such:.extent that • one. had big blisters raised, on it which.burst,.cansing a• discharge of water. One of .thowitnesses,,Mrs:•Virgil, Hutchinson, testified that early in March,- 1934, witness.went with ;the assured to-Newport to . see Dr. Gray and: on reaching: the town . she had : a kind of ,s.pell and, fainted andlad to wait an hour or two before . they. went to . the •doetoes,,office.; that assured was •in Dr...Gray's office for,. thirty •in•tes; but witness did-,not go .in with her.: ; .• . , One of the- WitnesseS ‘testified that •.she visited ;the assured on the afternoon 'preceding .her death•that night. She sent for a •doctor .who;gave her.,a,"shot'.'.; that witness had seen. a number sufferingwith. pneumonia and in her opinion the assured was!not:afflicted not die ,from, that,disease. : t; • The. testimony of: theselwithesses is 'not undisputed. The beneficiary in the pelieyr hi 'daughter of -the :assured, testified. that. excePt•for bad• teeth and- •a :sinus trouble from which her mother suffered a. great deal, she had.not been sick enough to be -in:bed:but two- Or- three' times during the -four years -. preadding witness'. testimony ; that she was. Siek in the winter of:1932 and , had a; case:of flu. in the -winter.- of.1933'; that at the time She: made- the iappli.;-
• 168 NAT. LIFE & ACCIDENT INS. CO . v. BLANTON. [192 cation for insurance, which was at the home of a Mr. Gist and in witness' presence, she was in good .health. Witness stated . .that the cause of her mother's death was pneumonia with which she had been ill about a week or ten days preceding her death. A Mr. Trentham, who took the assured's application for insurance as the agent for appellant company, , testified that he had known Mrs. Blanton for some time before she signed the application. He failed to make any stateL ment in his testimony as to the assured's health at the time the application Was taken. Dr. Gray, a Physician, who, as the -testimony of appellant disclosed, had been visited by the -assured early in March, 1934, testified that she came to hiS office, but that he did 'not recollect any particular examination homade: He stated that he must have . mado one, howeVer, or 'he would not have written 'a prescription for her. Several prescriptions were introduced in evidence And the doctor stated that he could say definitely, 'because of the char acter 'of these-prescriptions, that the aSsured was'not suffering from Any ailment of the-heart. He further stated that Mrs. Blanton was 'a relief patient, but that he gave such patients the same 'kind of examination as those . Who were able to 'pay and that he would have been able to find out in thirty minutes what her trouble was. The prei scriptions he had given Mrs. Blanton were for quinine and laxatives—one was a sedative, but the doctor did not recall for what it was prescribed. The beneficiary, Imah Blanton, also testified that one of her mother's legs was swollen as a result of an injury she received in a fall. The doctor . who attended Mrs. Blanton . on the afternoon of the last day of her life was not called as a witness and did not testify. The failure to procUre this testimony leaves the exact cause of the insured's deatli uncertain. The provision of the policy relied on by the" appellant is to the effect that no obligation is assumed by the company if the assured should not be in sound health On the date of the policy, or if, before that date, she "has
ARK.] NAT. LIFE & ACCIDENT INS. CO . v. BLANTON. 1169 had any pulmonary disease, or chronic bronchitis:or cam: cer,:or-disease of the beart,.liver or'kidneys, It is insisted by the appellant that the finding of the jUry necessarily implied• by its verdict is so Clearly and palpably against..the , weight Of the evidence, as to shOck the sense of justice of a reasonable .person and appellant invokes the doctrine announced in Singer Manufacturing Company v. Rogers, 70 Ark. 385, 68 -S. W. 153, Where the couiTh . said: "The rule established •in tbis coUrt is that, even where'there may be sOme conflict in the evidence, a new trial will -be granted-Whete the verdict is so dearly and palpably against the weight of evidence as to shock tbe sense of justice of a reasonable person.':' This case followed and .approved the rule announced in:Oliver ,V. State, 34 Ark.. 632, quoting therefrom as• follows: "But • • in all eases, even those of conflict, this Court will direct - a new trial,- When, upon inspection:of the evidence,, the verdict-is so- clearly and 'palpably against , the weight: of the evidence as to shock a sense Of justice. The line lies between a mere preponderance Within the bounds of a fair difference of opinion andthat gross preponderande which indicates an unreasoning pasSion or prejudiCe on the : part of. the jury, or misapprehension . of the law, or disregard of tbe legitithate sphere of their action." • . In the case of Chalfant V. Haralson, 176 Ark. 375, 3 S. M T. (2d). 38;• reference was made to • the cases supra, and in that connedion the court said : "In so far that it might be said that these cases sustain a. bolding that this court will set aside a verdict'of the jury where there is any-substantial . evidence to sustain it, • they are against . the :current of decision's in this state- and contrary to the Long settled . rule of this court-on tbe subject.'' The jury is the sole judge of the credibility of - the witnesses' and ndees-snrity has to pass upon the truthfulness of the testirnony in determining the weight to be givdn it. The jury accepted the testimony adduced on behalf of the•appellee establishing the true facts in the case and we are unable to say that thiS testimony was palpably false to that degree which would warrant . our invasiOn of the province of the jury. Accepting this 'testimony as true .and giving
1170 NAT. LII'E & ACCIDENT INS. CO . v. BLANTON. [192 to . it -its greatest probative value, we. think it . of a • substantial. nature. If Mrs. Blanton had been in , sUch -condition as testified to •y appellanCs witnesses, certainly Dr. Gray would have Observed it.for he had ample-opper-tthlity• to do -so, since, according to the testimony of u witness for the appellant, she-was in his office for thirty minutes. This reasonably implies that the doCtor Ina& an;exantination.Of Mrs: Blaii.ton and, while he was unable to;recall -what the examination waS; • he was- preared:to; and did, say- that the prescriptions . ,he •gaYe- her -failed tO indicate any serious corn-plaint. If . her • condition was; indeed; that described. -by• appellant's witnesses, it would have been discernible -from a — casual observation. Mr: Trenthath -mnst not have observed any indication of dis-• eaSe, else he would have -been called upon to* relate the result of his-observation. -This cirdumstance, together - with the-failure to call aS-a witness , the phYsiciati-who last administered-to- the.asstited; : corroborates' • the testithony of the' -appellee an& gives to her -evidence 'substantial weight; . -This 'Vie* renders it,unnecessary to:notice . the Contention- of. the appellee that' eifen thOugh- the representations made in the.application maY have 'been-false-these were nOt- sufficient to*: avoid the policy; there being- no evidence that they' were knowingly and wilfullY Made by the assured with the intent of deceiving the insurer. On the. question of the method of procuring-the lease the testimony is in. irreconcilable conflict, •The.ap-pellee testified that the proof. .of death and' claim for the policy benefit was delivered to her by Mr. Trentham, the* company's -agent ;. that she gave-him the insurance tiolicy and. receipt 'book: on his representation that.it wOuld be necessary to send theni in to the home office in • order for her.to receive payment of.the Sum for which her mother was insured ;fhat . she heard -nothing- about the'claim-until about- the 28th or 29th-of .June When s07eral then, -repre senting -themselves - to be the . agents -of *the appellant; visited -her and stated it had -been discovered that* ;her Mother had defrauded *the appellant into issuing the policy and . if she tried to get the.insurance :she wouldbe sent to thepenitentiary; that these- then then offered to*.return
.AE.K.] NAT. LIFE AccniENT hrs. co. v. BLANTON. 1171 the ' premiums -upon her signing a receipt and accepting the same-in full • settlement of her' claim *under • the •policy ; tbat she . did not sign the receipt and accept-the money on that afternoon, but saw-Air. 'Trentham the • next•'day and, after talking with him, signed the , receipt. -He advised her that she Might be'in "a; tough spot" and about the best thing he Could advise her 4:6- do . would -be to ac'- Cept the amount offered. It'was then that She signed'the receipt and release. In the staternent regardinethe Manner . in'whiCh.the reCeiPt'and'relea g e . Were- obtained, appellee Was' 'córrob- • brated bY thelestimonY 'Of a WitneSS Who 'Oyabeard"-trie cOnVersation between 'her and' appellants . agent§:; :TES teStiMony was . denied , bY : the' agentS' who teStified in the • Case; but as 'the 'jurY- aCCepted ` the-testimo0 'Of the , appa-lee' as' true, SOmnit We. ' • ThfS eStahliSheS'Snah to. 'render' the cbritract • Of release*Uhenforceable; • " • • It is a fundamental principle that)contracts, to he • I • .be . yoluntarily and.,.. where; ,exeCuted under Such circumstances as would enslave,.the iill, :the contract is void. This court, in the early 'case of Bui-r v. Burton, 18 Ark. 214, declared the rule that "A contract made by a party, under compulsion, is void; because consent is of the essence of a contract, and where there is compulsion, there is no consent, for this must be voluntary. Such a contract is void for another reason. It is . founded in wrong or fraud. It is not, however, all compulsion which has this effect ; it must amount to duress. But this duress may be either actual violence, or threat. * * * Duress, by threats, * * *, exists not wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong, as of death, or great bodily injury, or unlaw-• ful imprisonment." In Fonville v. Wichita State Bank & Trust Co., 161 - Ark. 93, 255 S. W. 561, 33 A. L. R. 125, we said, in effect, that to constitute duress sufficient to render void a contract because of threats it is necessary that the threats and circumstances be of a character sufficient to excite the reasonable fears of a person of ordinary courage. This,
1172 [192 of conrse, does not mean an ideal person, but one similar to the person affected and surrounded by similar . circumstances. Manifestly,, the threats which would induce the greatest fear in one person and constrain his acts might have no influence on another and a:person of "ordinary courage" is , one similar to the person against whom the threats are made as to age, sex, mentality and information surrounded by the same, or similar, conditions. 13 C. J., § 315, p. 400 ; § 319, p. 402. It is clearly inferable from the evidence that the ap-pellee is a . woman of limited idormation unaccustomed to business transactions. The threats made by the agents of appellant comPany would haVe . had no infliience„on many persons, but to us, they appear to have been sufficient to submit to. the jury whether sufficient .to, overcome the , appellee's: mind and to prevent . her from . exercising her. .own free will . and.: to_cause her to . .execute the release. . . It- folloWs froth the Views expre§Sed * that the judg-nient 0 of the lower court iS correct and . should :be affirthed. It is 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.