118 Va. 329 | Va. | 1916
delivered the opinion of the court.
This case is here upon a writ of error to a judgment rendered against the plaintiff in the court below on a demurrer to evidence by the defendant.
On the 8th of December, 1904, the Royal Neighbors of America, a fraternal beneficiary society, accepted Laura O. Greenwood as a member and issued to her a benefit certificate (or life insurance policy) in which her husband, Thos. O. Greenwood, was named as beneficiary. Erom.that time until January, 1913, she kept her monthly dues paid, with an occasional temporary delinquency which in each instance was made good and which in no instance was the subject of any question. She failed to pay in January, 1913, but in the following month paid up in full, and thereafter kept up her dues until her death in April, 1913.
The certificate, read together with the by-laws which were made a part thereof, provided that failure to pay any monthly assessment should operate to suspend the holder from membership in the society; that during such suspension the certificate should be void, and that the member so suspended might be reinstated “by the payment, within sixty days from the date of suspension, of all arrearages . . . provided, however, that said member is in good health at the-time of such action to reinstate, and that whenever assessments are so tendered by a
At the date of Mrs. Greenwood’s action for reinstatement, and from that time until the night before her death, she appeared to be in perfect health. From the middle of December until the latter part of February she suffered from an attack of grippe, which is not claimed to be material, and with that exception there is no evidence to show that there was anything in her condition to indicate ill health. The inference is that she was apparently well, from the fact that her family physician, Dr. Jamison, had not attended her for any purpose for about three years prior to her death. He had, however, about four years prior to her death, been consulted by her and found that she had what he said was, “to the best of his knowledge,” valvular heart disease, and thereafter he “saw her off and on during that year.” In her last illness Dr. Gill first attended her because Dr. Jamison was not at the time available. This was early in the morning of the day of her death. Her illness, as Dr. Gill thought, from the manner in which she was suffering, was acute indigestion. He gave her temporary relief, but made no physical examination, and did not see her again, Dr. Jami-son taking charge of the case later. She died late in the afternoon of the day on which she became ill. Dr. Jamison testified that she died of valvular heart disease; that this is an incurable disease, and that he would say, therefore, that she had it in January and February, 1913.
The ground upon which the defendant rested its demurrer to the evidence was the alleged breach of a warranty that Mrs. Greenwood was “in good health” when she paid up her arrearages. The first question arising in regular order upon this contention turns upon the effect of Dr. Jamison’s testimony. All of the evidence given by him must be viewed in the light of the following facts and circumstances, some of which have already appeared, to-wit: His original diagnosis, which was
Questions of this character, wherever there is any discrepancy in the testimony or doubt as to its meaning, should be left to the jury. May on Insurance, see. 296; Boos v. World Mutual Life Ins. Co., 64 N. Y. 237, 241; Moulor v. Ins. Co., 101 U. S. 708, 710, 25 L. Ed. 1077; 17 Cyc. 262.
We feel that we might safely rest the decision upon what has already been said, but there is another view of the case which is conclusive against the defendant, and which we consider of sufficient general importance to call for its discussion. The jury» in our opinion, might properly have found that there was no breach of warranty, even if they had been bound to accept Dr. Jamison’s theory of the case.
Eraternal benefit societies, while usually dealt with more liberally in some respects than ordinary insurance companies, are subject to the same rules of law and construction as other companies in regard to their contracts for life insurance. Yance on Insurance, see. 30, p. 59. The beneficiary, therefore, is entitled to a liberal and favorable interpretation of the contract. Vance on Insurance, p. 430; Stratton v. N. Y. Life Ins. Co., 115 Va. 257, 270, 78 S. E. 636.
Construed in the light of these principles and of the authorities which commend themselves to us as being based upon reason and justice, we are of opinion that the case is with the plaintiff in error, even if it be conceded that Dr. Jamison’s diagnosis was correct. This we think is true irrespective of whether the
“Good health means apparent good health, without any ostensible, or known, or felt symptom of disorder, and does not exclude the existence of latent unknown defects.” May on Ins., sec. 295, p. 625.
In Schwarzbach v. O. V. P. Union, 25 W. Va. 622, 657, 52 Am. Rep. 227, 233, Judge Green, after first approving the well settled rule that the term “warranty” does not in itself neces
Assuming, as we do for the sake of this discussion, that Mrs. Greenwood did have valvular heart disease when she sought reinstatement, and, assuming further, as we must upon this demurrer to evidence, that she did not know it, the case is not, so far as she and her beneficiary are concerned, different from what it would have been if she had been affected by some disease which was not discovered or even discoverable otherwise than by a post-mortem examination. It certainly cannot be contended with any show of reason or authority that in such a case an insurance policy could be defeated by the mere statement of the insured that he warranted himself in good health. The warranty would have to go further, and in unmistakable terms
Whether the language be that of a warranty or a reiiresentation, “Where the answer of the applicant is made in good faith and relates to an unknown and obscure disease, or to a long list of diseases, some of them obscure, the courts are disposed to construe the answer as relating to matter of opinion of the applicant rather than to matter of fact.” Richards on Ins. (3d Ed.) 482.
In Blackman v. U. S. Casualty Co., 117 Tenn. 578, 103 S. W. 784, the application of the insured contained this preliminary clause: “I hereby apply for a health insurance policy, to be based on the following statements, which I warrant to be complete and true;” and one of the statements referred to was this: “I am . . . free from any . . . constitutional, functional, or organic diseases, . . . impairment or infirmity.” It developed that, unknown to him, he was then in the first stages of nephritis, a serious kidney disease which was
In Owen v. Metropolitan Life Ins. Co., 74 N. J. Law 770, 67 Atl. 25, 122 Am. St. Rep. 413, certain statements and answers were made warranties by the terms of the policy. Among these was a statement by the insured that he had never had certain specified diseases, including “disease of the heart.” There was evidence tending to show that a man of the same name as the insured had, previous to the date of his policy, been for two months in a hospital under treatment for organic heart trouble. The identity of the hospital patient with the insured. was questioned, but the opinion, which was delivered by the present Mr. Justice Pitney, assumed that there was sufficient evidence of identity to carry the matter to the jury, and (with striking pertinency to the instant case) held as follows: “The declaration in paragraph 2 of the application, to the effect that the applicant had never had disease of the heart, an obscure disease, concerning which the insurer should know that the applicant could not have certain knowledge saving as he might be told by a physician or other expert, is properly to be construed as a warranty only of the bona-fide belief and opinion of the applicant. Henn v. Metropolitan Life Ins. Co., 67 N. J. Law 310, 51 Atl. 689; Dimick v. Metropolitan Life Ins. Co., 69 N. J. Law 393, 55 Atl. 291, 62 L. R. A. 774. Since the case is devoid of evidence to show that Owen was apprised that he was suffering from heart disease, beyond the mere fact that he was so suffering, it certainly was not conclusively proved that his bona-fide belief and opinion upon the subject were
See, also, Minnesota Life Ins. Co. v. Link, 230 Ill. 273, 82 N. W. 637; Fidelity Mutual Life Ins. Co. v. Jeffords, 107 Fed. 402, 46 C. C. A. 377, 53 L. R. A. 193; Ames v. Manhattan Life Ins. Co., 40 App. Div. 465, 58 N. Y. Sup. 244, affirmed 167 N. Y. 584, 60 N. E. 1106; Lakla v. Modern Brotherhood, 163 Iowa 159, 143 N. W. 513, 517, 49 L. R. A. (N. S.) 902.
The case of Bixler v. Modern Woodmen, 112 Va. 678, 72 S. E. 704, 38 L. R. A. (N. S.) 571, so much relied upon by defendant in error, is not at .all in conflict with, but rather tends to support the conclusion which we have reached. In that case the opinion brings- out and emphasizes the fact that when the insured, Bixler, paid up his dues for reinstatement, he knew that he had been suffering from chronic diabetes for two years or more.
Our conclusion is that while it may not have been true that Mrs. Greenwood was free from a serious and dangerous organic heart trouble at the time, her statement that she was “in good health” was true in the sense in which her beneficiary is entitled to have the expression construed, and, therefore, that whether her statement be regarded as a warranty or as a representation, the result is the same and the beneficiary is entitled to recover on the certificate. This we think follows, not from all, but from the best considered authorities on the subject, and it seems to us to be the right of the case.
. The judgment complained of will be reversed, the demurrer to the evidence overruled, and judgment entered in this court for the plaintiff.
Reversed.