Home/Eighth Circuit/Wharton v. ætna Life Ins. Co.

Wharton v. ætna Life Ins. Co.

48 F.2d 37, 1931 U.S. App. LEXIS 4158
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 4, 1931
Docket8846
StatusPublished
Cited by48 cases

This text of 48 F.2d 37 (Wharton v. ætna Life Ins. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wharton v. ætna Life Ins. Co., 48 F.2d 37, 1931 U.S. App. LEXIS 4158 (8th Cir. 1931).

Opinions

GARDNER, Circuit Judge.

this action appellant as plaintiff be- , , , , rvi . low sought to recover on three life insurance polieies issued by tbe Mtn& Life Insurance Company, appellee, upon 'the life of John Hawkins Wharton. The answer pleaded that false statements and representations had been made by the insured in Ms application for insurance, and that the policies had not become effective because they were not delivered during the good health of the insured. The policies; so far as their provisions are concerned, are all alike, except that two of them are for $10,000 each, wMle the other is for $5,000. They are all of the same date, and the statements in the application for each are identical. The policies all bear date August -^-> 1928, and the applications all bear date 27,1928. The plaintiff is the beneficiary ^ P°^®es> an(f surviving widow of the insured. The insured died November 18, 1928> of aeute nephritis, commonly called Bright’s disease. Each policy contained the „ ,, . x J 8'

“Au statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid the policy or be used in defense to a claim under it unless it is contained in ,, ... , , the written application herefor and unless a « -r* va* • ,, , n , copy of such application is attached hereto -C - j when issued.
“This Poliey and the apphcation herefor, a copy of which application is attached her e- / ^ . \\ « w . to and made a part hereof, constitute the en- \ - .. •, ^ tire contract between the parties hereto,-and it sllall be incontestable after it has been in' force during the lifetime of the insured for a period of one year from its date of issue ex-eept for non-payment of premium.”

Each policy had attached an application signed by the insured. At the bottom of the [39]*39application, over the signature of the insured, appears the following certificate: “I hereby certify that the above answers and statements are made by me, that they are correctly and fully recorded by the Medical Examiner, and that no material circumstance or information has been withheld or omitted concerning my past and present state of health and habits of life.”

It was urged on the trial that the insured had made false answers to interrogatories 9 and 10 contained in the application. The application was on the printed form furnished by the insurance company, spaces being left in which to write the answers to the interrogatories. At the top of the page on which in-, terrogatories 9 and 10 appear in the application, appear the following printed words in large type:

“Application to the ¿Etna Life Insurance Company
«•D . o /TT -B-1 1 T 1 n 1 m U “Part. 2. (Use Black Ink Only. To be Pho ographed).

Subjoined to this, appears the following pertinent part of the application:

“The following answers must be made to and written by the Medical Examiner who should see that each answer is full and satisfactory. Neither the agent nor any third person should be present. If necessary, use space provided under 'Additional and Explanatory Remarks.’

The answers to these interrogatories are in the handwriting of the defendant’s medical examiner, and each application was dated July 27, 1928, and it appears from the evidenee that on that date the insured, who was a resident of Union county, Ark., was solicited by an agent of the defendant company to take out life insurance. He was thereupon examined by the defendant’s examining physician, and in due time the policies issued lmder date August 11, 1928, and were delivered ^he insured August 21, 1928.

At the conclusion of the evidence, the defendant interposed the following motion for a directed verdict: “We have moved for an instructed verdict in this ease on the ground that the applicant John Wharton made material misrepresentations in connection with the application in answer to No. 10, that he ^d notconsulted or been treated by a physicían wl™n years.”

This motion was granted, and the plaintif£ saved an exception. On this appeal a number of assignments of error appear in the record, but counsel have abandoned all of them, except such as relate to the action of C01lx^ i11 directing a verdict,

Where the evidence is of such a character as reasonable men may reach different conclusions, the ease should be submitted to the jury. Mutual Life Ins. Co. v. Hatten (C. C. A.) 17 F.(2d) 889; Crookston Lumber Co. v. Boutin (C. C. A.) 149 F. 680; [40]*40United States Can Co. v. Ryan (C. C. A.) 39 F.(2d) 445; Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 233, 74 L. Ed. 720. In eonsidering this question the eourt must assume that the evidence for the party against whom the verdict was directed, proves all that it reasonably may be found sufficient to establish. In other words, it must be accepted as true for the purpose of determining the eorrectness of the court’s ruling. The rule was stated by the Supreme Court in Gunning v. Cooley, supra, as follows: “And in determining a motion of either party for a peremptory instruction, the court assumes that the evidence for the opposing party proves all that it reasonably may be found sufficient to establish, and that from such fae.ts there should be drawn in favor of the latter all the inferences that fairly are dedueible from them. Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 606, 12 S. Ct. 905, 36 L. Ed. 829; Gardner v. Michigan Central Railroad, 150 U. S. 349, 360,14 S. Ct. 140, 37 L. Ed. 1107; Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 524, 527, 45 S. Ct. 169, 69 L. Ed. 419. Where uncertainty as to the existence of negligence arises from a conflict in the testimony or because, the faets being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled oj tne jury.

[39]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

New Castle County v. Hartford Accident & Indemnity Co.
685 F. Supp. 1321 (D. Delaware, 1988)
National Aviation Underwriters, Inc., D/B/A National Insurance Underwriters v. Raymond F. Fischer and Fischer Construction Co., Inc.
386 F.2d 582 (Eighth Circuit, 1967)
Prudential Insurance Co. of America v. Whittington
98 So. 2d 382 (District Court of Appeal of Florida, 1957)
Cardwell v. United States
186 F.2d 382 (Fifth Circuit, 1951)
Danaher v. United States
184 F.2d 673 (Eighth Circuit, 1950)
Turner v. National Hospitalization, Inc.
52 A.2d 274 (District of Columbia Court of Appeals, 1947)
American Eagle Fire Ins. v. Peoples Compress Co.
156 F.2d 663 (Tenth Circuit, 1946)
Martin v. Mutual Benefit Health & Accident Ass'n
162 P.2d 980 (California Court of Appeal, 1945)
Edwards v. United States
140 F.2d 526 (Sixth Circuit, 1944)
Wayne v. New York Life Ins. Co.
132 F.2d 28 (Eighth Circuit, 1942)
Metropolitan Life Ins. v. Madden
117 F.2d 446 (Fifth Circuit, 1941)
Jones v. United States
112 F.2d 282 (Eighth Circuit, 1940)
Phœnix Mut. Life Ins. v. Harmegnies
110 F.2d 20 (Eighth Circuit, 1940)
American Surety Co. v. Normandy State Bank
108 F.2d 819 (Eighth Circuit, 1940)
Kaplan v. Manhattan Life Ins. Co. of New York
109 F.2d 463 (D.C. Circuit, 1939)
New York Life Ins. v. Levin
102 F.2d 403 (Eighth Circuit, 1939)
New York Life Ins. v. Calhoun
97 F.2d 896 (Eighth Circuit, 1938)
Zolintakis v. Equitable Life Assur. Soc. of United States
97 F.2d 583 (Tenth Circuit, 1938)
St. Paul Fire & Marine Ins. v. Kaufman Compress Co.
93 F.2d 156 (Fifth Circuit, 1937)
Golightly v. New York Life Ins.
85 F.2d 122 (Eighth Circuit, 1936)

Cite This Page — Counsel Stack

Bluebook (online)
48 F.2d 37, 1931 U.S. App. LEXIS 4158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wharton-v-tna-life-ins-co-ca8-1931.