Mutual Life Insurance v. Arhelger

36 P. 895 | Ariz. | 1894

Lead Opinion

BAKER, C. J.

This suit was commenced by Edward Arhelger, administrator of the estate of Alexander Graydon, deceased, against the Mutual Life Insurance Company of New York upon a life policy issued by the appellant to the appellee’s intestate. The case was tried before a jury, and a verdict rendered in favor of the appellee in the sum of $5,462.21. Judgment followed the verdict. The court denied a motion for a new trial, and the appeal is taken from the judgment and the order denying the new trial. The policy was issued to the deceased, Graydon, December 16, 1890, for the sum of five thousand dollars, and is what is commonly called a “fifteen-year distribution policy.” Graydon was forty-five years of age at the time, and died February 28, 1891. Several defenses were interposed at the trial, but we shall consider only one,—viz., that there was a breach of warranty in the applieacation for the insurance, wherein the deceased represented that he had not consulted any physician for sickness since childhood, and did not remember the name or address of any physician attending him. If we are right in our determination concerning this defense, none others need be discussed. The following questions and answers were asked of and made by Graydon in his application for the policy: “Question 17. When did you last consult a physician, and for what disease?—Answer. Not since childhood.—Question 18. Give names and addresses of the physicians who have attended you.—Answer. Don’t remember.” The truth of these answers was warranted in the same application for the policy as follows: “I also agree that all the foregoing statements and answers, as well as those that I make to the company’s medical examiner in continuation of this application, are by me warranted to be true, and are offered to the company as a consideration of the contract” (policy), etc. The following written stipulation, signed by the attorneys for the respective parties, is a part of the record, and was read in evidence to the jury at the trial: “The plaintiff admits that the following facts are true: That Dr. H. H. Huff was called to see the said Alexander Graydon, deceased, on the day of his death, and administered to, said Graydon’s wants as a physician; that Dr. H. H. Huff found said Graydon in a drinking condition; that Graydon said that he (Graydon) had.been drinking, and was afraid to go to sleep, and wanted Huff to give him an opiate to make him sleep; that Dr. Huff had treated Graydon before, and then gave Graydon the opiate; that Graydon remarked to Huff that he (Graydon) preferred the opiate, as the other treatment made him sick; that Huff had been Gray-don’s physician from July, 1890, up to the date of Graydon’s death.” The court also submitted the following special inquiries to the jury, and they returned the following answers: “Question 6. Did Graydon receive medical attention or have a physician within two years prior to December 15, 1890 ? If so, for what disease, if any?” in answer to the sixth interrogatory the jury say: “Yes; for cold and inflammation of the bowels.” “Question 8. If any physician attended Gray-don, did he know the name or ns mes of the physician or physicians who attended him within two years prior to December 15, 1890?” In answer to the eighth interrogatory the jury say: “Yes.” “Question 9. If any physician attended Gray-don, did he know the address or addresses of the physician or physicians who attended him vi'hin two years prior to December 15, 1890 ? ” In answer 1 o the ninth interrogatory the jury say: “Yes. ’’ The stipulation must be construed as establishing the falsity of the applicant’s answer to the question about consulting a physician for sickness. To be one’s physician means to attend upon him or to consult with him in a professional capacity about his state of health; that is to say, to prescribe treatment, if necessary, and give directions and advice calculated to relieve from ; ckness and restore to health. The questions put to the applicant were comprehensive enough and clear enough to fully advise him of the fact the company desired to ascertain,—if he had consulted, or had been attended by, any physician for any sickness, and, if so, the name and address of such physician, and the character of such ailment. If he had consulted any physician in a professional character, or received any treatment or advice at the hands of one, it was his bounde.n duty to disclose the fact in answer to the inquiries, for his warranty fully covers such matters. The stipulation was a competent one for the attorney of the appellee to make, and, so far as the evidence is concerned, was justified; and, in our opinion, it clearly shows a breach of the warranty of the i.ruth of the answers quoted. If there is any doubt of this, we add that the uneontradicted evidence unquestionably shows that the deceased was attended and treated by another physician. Dr. Cook, upon other occasions during the year 1888 or 1119, when he had indulged in protracted sprees and become sics.

The appellant had a perfect tight to make the questions and answers in the application a. part of the contract, and we have no right to make any other or different contract for the parties. Such answers were material to the policy. They were made so'by its terms, and no rule of construction will be suffered to destroy the effect of plain language. We hold that the statements by the deceased in the application for the insurance about a physician were warranted to be true, and that the stipulation and the evidence show a clear breach of such warranty. The policy is voided. Dwight v. Insurance Co., 103 N. Y. 341, 57 Am. Rep. 729, 8 N. E. 654; McCollum v. Insurance Co., 28 N. Y. St. Rep. 272, 26 N. Y. Supp. 249; Boland v. Association, 74 Hun, 385, 26 N. Y. Supp. 433. It makes no difference whether the deceased knew them to be untrue or not. It is a good defense to show that as a matter of fact they were untrue, without showing that he knew or believed them to be untrue. Society v. Llewellyn, 58 Fed. 940, 7 C. C. A. 579.

Counsel for appellee directs our atention to the case of Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. Rep. 466, and thinks that case should govern this. The cases are clearly distinguishable. Society v. Llewellyn, supra. In Moulor v. Insurance Co. it was held, in effect, that there was doubt of the meaning of the contract, and it was therefore proper to consider the statements of the applicant as “representations” and warranties only to the extent that they were made in good faith, and were true, as far as the insured knew. The statements of the applicant were referred to in the body of the policy as being representations, and this expression was made to govern. But there is no doubt of the meaning of this contract. Read it as you will, it remains a strict warranty. The words used are plain, and are comprehended as soon as read. In such a case there is no room for construction, for the very good reason that there is no need of it. 2 Parsons on Contracts, 500. The term “rule of construction” is confined by general usage to rules for the interpretation of written documents in matters on which, in the absence of a rule to aid, there might be a doubt. Pollock on Contracts, 456. The judgment is reversed, and the case remanded for a new trial.

Sloan, J., concurs.

HAWKINS, J.—I concur in the reversal of the case.

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Concurrence Opinion

ROUSE, J.

I concur in the reversal of the case, hut not in the opinion. Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. Rep. 466, is not distinguishable from this case.