194 P. 493 | Mont. | 1920
delivered the opinion of the court.
On the twenty-fifth day of March, 1916, Amy Mandoli was received into the local lodge and branch of the National Council of the Knights and Ladies of Security, at Anaconda, in this state, and, until her death on the tenth day of January, 1917, remained a member thereof in good standing. When she became a member of the society, there was executed and delivered to her a benefit certificate binding the defendant to pay to the beneficiary therein upon her death the sum of $3,000. After proof of death, demand for payment was made upon the defendant society in conformity with the obligations assumed by it; but payment was refused upon the ground that the statements and warranties of the deceased contained in the application of the assured for membership did not disclose the
The complaint alleges that at the time of her death, the assured was in good standing. It is set forth in the answer of the defendant that, but for the false and untrue statements contained in the application for membership, which the applicant warranted to be true, the certificate sued on would not have been issued. By replication, the plaintiff denied all the affirmative allegations of the answer, bringing to issue the question whether the statements and warranties were actually made, and the further question whether they were true or false. A trial was had before the court and a jury, resulting in a verdict for the plaintiff. A motion for a new trial was denied by the district court from whence these appeals come.
To bring into prominence the material points in issue, we quote first the statements of the applicant upon which the defendant was induced to issue the policy, viz.:
“I have not now, and never have had, and no physician has ever treated me for, # * * hemorrhages of any kind, rheumatism in any form, spitting or raising of blood. * * *
“Have you either consulted, or been treated, by any physician or surgeon within the past five years for any illness, disease, or injury? If so, give name and address of each and full particulars. No..
“Have you now or ever had any menstrual disorder? No.”
The application contains the following agreement and warranty!
“I hereby certify that I am temperate in my habits, and I am in sound physical and mental condition, and I am a fit subject for life insurance.
“I hereby make application for a beneficiary certificate from the National Council of the Knights and Ladies of Security. And I hereby declare that the foregoing answers and statements are true, full, and correct, and I acknowledge and agree that the said answers and statements, with this application, shall form the basis of my agreement with the order, and constitute a warranty. I hereby make my medical examination a*677 part of this application and agree that this application and medical examination shall be considered a part of my beneficiary certificate, and together with the constitution and laws of the society as now existing or hereafter amended shall constitute my contract with the society.
“I further declare and agree that I have verified each of the foregoing answers and statements from 1 to 45, inclusive, and that I know and understand the contents hereof and that the answers and statements as written herein are as given by me.”
If the answers to the questions propounded were not true,
Mr. Bailey, a recent writer upon the subject of Life Insurance, states the rule as follows: “The substance of the decisions relating to the subject of warranty in insurance contracts is that the truth of all statements warranted to be true is a condition precedent to the liability of the insurer; for, if the statements so warranted are untrue, there is no contract.” The author then quotes with approval the language of Mr. Chief Justice Brantly in the Pelican Case above cited, as follows: “The general rule is that a warranty must be a part and parcel of the contract, made so by express agreement of the parties upon the face of the policy. It is in the nature of a condition precedent and must be strictly complied with or literally fulfilled, to entitle the assured to recover on the policy. It need not be actually material to the risk; its falsity
If, then, the answers of the insured given to the question
The law recognizes the competency of applicants for insurance to make agreements of binding force, and if, upon a reasonable interpretation of all the stipulations of the parties, such was the contract, it is the duty of the court to
The application and the policy in suit, attached together, were made a part of the complaint, and conform in all re
In the certificate itself the following appears: “This beneficiary certificate is issued by said National Council and accepted by the member only upon the following express warranties, conditions and agreements:
“1. That the application for membership in this order, made by the said member, together with the report of the medical examiner, which is on file in the office of the National Secretary, and both of which are made a part hereof, are true in all respects, and each and every part thereof shall be held to be a strict warranty and to form the only basis of the liability of the order to said member, or said member’s beneficiaries, the same as if fully set forth in this certificate, and that the application and medical examination herein referred' to and the constitution and laws of the society as the same; now exist or as may be hereafter enacted, and this beneficiary certificate shall all be construed together as forming parts of the contract between the National Council and the member.
“2. That if said application and medical examination shall not be true in each and every part thereof, then this beneficiary certificate shall as to said member, or said member’s beneficiaries, be absolutely null and void.”
Dealing now with the specific facts: If it appears by the undisputed testimony that the assured had been treated by a physician or surgeon for illness, disease or injury within five years prior to the making of the application, there was nothing requiring the court to submit the case to the jury, and the defendant’s motion for a verdict in its favor should have been granted. The following testimony bearing on the application of the questions and answers therein is uncontroverted, and its effect is not avoided by anything in the record before us;
Dr. J. M. Sligh testified as follows: “I had occasion to treat Mrs. Mandoli personally; as near as I can recollect that was the latter part of November, 1915, and the fore part of December following. I treated her at her home and that of her mother. I first treated her for rheumatism. I paid two or three visits to her house. I made three or four visits to her mother’s house. At her mother’s house I treated her for persistent hemorrhage of the nose, lasting upward of 24 hours, I believe. I had to pack the nose twice; that was a severe hemorrhage. I Created her probably a month or two prior, and also after that time and prior to March, 1916; that was at my office and at her mother’s house. I do not remember exactly the dates of those visits.” On cross-examination he
The plaintiff, Andy Mandoli, the beneficiary under the policy and the husband of the insured, testified that his wife had “a kind of a pain on the knee and leg and a kind of cold, and they found that there was a kind of rheumatism, a little cold or la grippe, or something like that, but nothing serious about it. That pain lasted two or three days, and in the meantime she showed a cold in the head. * * * She did not have rheumatism for more than a year, only rheumatism four or five days, a little pain two or three days at the most. * * * Dr. Sligh treated my wife for rheumatism and for hemorrhage of the nose at that time; two or three times, I guess. I do not think I was present when Mrs. McCallum rubbed my wife’s limbs there on account of rheumatism; I
Against the statement contained in the application of the insured that she had not, within five years previous to the making of her application for insurance, either consulted, or received treatment from, any physician or surgeon for “any illness, disease or injury,” there is the testimony, above set out, of two attending physicians who had treated her for rheumatism, hemorrhages and menstrual disorders, and the unqualified admission of her husband that she had been attended by the physicians called as witnesses, and had received the medical treatment described by them. Considered in the most favorable light possible, the above incorrect statements of fact were material representations amounting to warranties, and, nothing else appearing in the record, if known to be untrue by the assured when made, invalidate the policy, without further proof of- actual conscious design to defraud.
At the close of all the testimony the defendant moved for a directed verdict, upon the ground that the proof relating to the fact concerning the attendance of physicians upon the deceased was not contradicted, and was at variance with the statements made in her application for membership and medical examination, and the fact that the testimony of the physicians was not denied, raised a question of law to be decided by the court. The motion was denied. It should have been granted. There was nothing requiring the court to submit the case to the jury. The rule obtains, where the evidence
Proceeding thence with the trial, and consistent with the theory adopted and' followed by the parties, the presiding judge, with characteristic clearness and ability, instructed the jury in conformity with the law above suggested, and, among
The defendant contracted to pay the policy upon the condition that the statements and warranties embodied in the application were true in fact, and not otherwise. By the showing made it appears they were untrue. Yet by the verdict and judgment each and every member of defendant society is to be subjected to the payment of his or her proportion of the face of the policy, in spite of the fact that neither by its letter nor its spirit did the parties contemplate any such thing. Upon the whole, we are unable to find a substantial conflict in the evidence upon the falsity of the statements' warranted to be true, or to escape the conviction that sympathy played the major part in bringing about the verdict for the plaintiff.
The judgment and order appealed from are reversed and the cause is remanded to the district court of Deer Lodge county, with direction to dismiss the action..
Reversed and remanded.