108 S.W. 1160 | Tex. | 1908
This is a certified question from the Court of Civil Appeals for the Fifth District. The statement and questions are as follows:
"Charles J. Payne brought this action to recover upon a policy of insurance, or benefit certificate, of $2,000, issued in his favor by the appellant, Supreme Lodge Knights and Ladies of Honor, on the life of his wife, Mary J. Payne. The appellant defended on the ground that certain warranties contained in the contract of insurance had been breached by reason of which it had been discharged from all liability. To this defense appellee pleaded an estoppel that the subject matter thereof was not material to the risk and did not contribute to the death of Mrs. Payne. Upon the conclusion of the evidence appellant requested the following instruction: `You are instructed that under the undisputed facts as shown by the competent evidence introduced in this case, the plaintiff is not entitled to recover. You will, therefore, return a verdict in favor of the defendant.' This instruction was refused, and the case submitted to the jury upon special issues. Upon the findings of the jury judgment was rendered for appellee and appellant has appealed the case to this court.
"The appellant is a mutual relief association organized and chartered under the laws of the State of Indiana. It has no capital stock and the relief fund is created and sustained by assessments made upon its members in accordance with its bylaws. The affairs of the association are conducted by lodges, a quorum of whose members meet in their respective lodge rooms, at stated times, for the transaction of business. The benefit certificates issued to its members are issued in consideration of and upon the faith of written and printed applications therefor, to which is attached and made a part thereof, what is known as the "Medical Examiner's certificate." Forming a part of this last mentioned certificate is the "Appellant's statement to the Medical Examiner," which consists of printed questions and answers relating to the health, physical condition, etc., of the applicant. Dr. J.H. Erwin, the medical examiner of appellant, examined Mrs. Payne on May 5, 1905, and prepared the application upon which the policy or certificate sued on was issued. This certificate recites: "This Relief Fund Certificate is issued upon the following express conditions: First, That the statements made by the member in the contract known as `Application for Membership' in Relief Fund and answers to questions in applicant's statement to the medical examiner known as medical examiner's certificate, upon the faith of which this relief fund certificate is issued, are true and shall be treated as warranties." Following the questions and answers thereto, as contained in the applicant's statement to the medical examiner, referred to in the foregoing recitation, is a printed agreement signed by Mrs. Payne, reading thus: "I hereby declare and *453 agree that the foregoing answers and the statements and the answers to the questions propounded to me by the medical examiner are warranted to be true. And I acknowledge and agree that my said answers and statements in this medical examination, together with my application for membership, shall form the basis of my agreement with the order, and constitute a warranty. I hereby make my medical examination a part of my application for membership, and agree that my said application and medical examination shall be considered a part of my Relief Fund Certificate. I hereby declare . . . that the answers as written herein are as given by myself to the medical examiner. . . ." Among the questions and answers appearing above said agreement are the following: Are you pregnant at this time? Answer, No. Are your menses regular? Answer, Yes. Do you know that in your application for relief fund membership you warrant the correctness and truth of your answers to all questions propounded to you by the medical examiner on this blank and that if your answers to such questions are not true that your relief fund certificate, if issued, would be null and void? Answer, Yes. At the time Mrs. Payne was examined for the policy in suit she was in fact pregnant, and on October 17, 1905, five months and twelve days after the examination, she gave birth to a living child, and on October 31, 1905, she died. The child was well developed and not different from other newly born babies. It survived its mother sixteen days, dying November 16, 1905. In answering that her menses were regular and that she was not pregnant, Mrs. Payne acted in good faith, believing such answers to be true. She disclosed to appellant's medical examiner, in making said answers, fully all the facts known to her touching the irregularity of her menses, and whether or not she was then pregnant. She was, however, at the time of her examination the mother of two children. Dr. Erwin, appellant's medical examiner, did not know at the time he examined Mrs. Payne that she was then pregnant; and appellant would not have accepted the application of Mrs. Payne for the certificate sued on, if it had known that she was then pregnant. There was testimony tending to show that Mrs. Payne died from malarial fever and the jury found that her menses were regular at the time of her medical examination and that her statements that they were regular and that she was not pregnant were not material to the risk assumed by appellant in issuing the policy, and that her pregnancy did not contribute to her death. The specific question, whether Dr. Erwin dictated, advised or suggested the answers of Mrs. Payne, that her menses were regular and that she was not pregnant, does not seem to have been asked and was not submitted by the court to the jury for their determination.
"Dr. J.H. Erwin, appellant's medical examiner, who was authorized by appellant to ask the questions and write down the answers appearing in Mrs. Payne's application, after stating that he had conducted the examination of Mrs. Payne, etc., testified (giving the questions and answers just as they appear in the record), as follows: "Q. At the time you conducted this examination, did you ask the applicant, Mrs. Payne, the question as to whether or not her menses *454 were regular? A. Yes, sir. Q. Doctor, you were aware of the presence in this application of the statement, that the answer `Don't Know` would not be accepted, were you not? A. Yes, sir. Q. You were also acquainted with the direction that the medical examiner will put such other questions bearing on the case as you may think proper; you knew that was in there at the time? A. Yes, sir. Q. Now, when you asked Mrs. Payne if her menses were regular, what reply did she make, Doctor? A. She said as a rule, they were. Q. As a rule, they were? A. She missed some times, but as a rule they were regular. Q. She was regular? A. Yes, sir. Q. Then, you put down — what did you put down? A. How did I answer? Q. Yes, sir. A. I answered that they were regular. Q. You answered it? A. Yes, sir. Q. Yes, sir; now Doctor, as a physician, what would you say with respect to the regularity or irregularity of a woman's menses, if, during married life of eleven or twelve years, they came regularly nine or ten, or eleven or twelve, or nine-tenths or twelve-thirteenths of the time, and occasionally missed a month, would you say she menstruated regularly or irregularly? A. I would usually regard her as being regular. Q. The occasional missing for special causes would not make it an irregular menstruation? A. No, sir. Q. Now, then, Doctor, did you ask her the question as to whether or not she was pregnant? A. Yes, sir. Q. What was her answer? A. Well, as well as I remember, she said that she did not know, but that she did not reckon that she was. Q. That she did not know, but she did not reckon that she was; then what occurred? A. I explained to her in case she was, it was no use to examine her; that they wouldn't accept her application, if she was pregnant, and she said that she sometimes missed but came around all right, and that she did not believe that she was pregnant. Q. Was anything said about the other symptoms at the time? A. I don't remember, I know that we discussed it pretty thoroughly, before I answered the question, and she concluded that she was not pregnant. Q. What did you conclude from her statements? A. I did not think that she was. Q. You did not think she was; were there any evidences of pregnancy except the missing of her menstruations? A. No, sir. Q. There were none? A. No, sir. Q. Doctor, did, or did she not — how did she answer the question you put to her; how did she answer the questions, in a straightforward manner? A. Yes, sir. Q. Did you and she discuss the matter fully? A. The examinations? Yes, sir."
"Dr. Baird testified, that he had heard of a few cases where women menstruated all during pregnancy and had seen cases where they menstruated during the first few months.
"The members of this court differ as to how some of the issues of law arising on the appeal should be decided, and deem it advisable to certify to the Honorable Supreme Court of Texas, the following questions for adjudication:
"Question 1. When an applicant for insurance is examined by the insurer's medical examiner, and signs a written report of that examination, consisting of questions propounded and answers made thereto, for submission to the officers of the insurer in a distant State, *455 and warrants that the answers as contained in the written report are as given by him to the medical examiner, can his beneficiary avoid the effect of the answers contained in the written report by testimony that other answers in fact were given to the medical examiner?
"Question 2. Where an applicant for insurance states fully and truthfully all the facts known to her touching the irregularity of her menses and whether or not she was then pregnant, and the medical examiner of the company, authorized to ask the questions and write the answers, dictates or advises the answers, or, putting his own construction upon the facts, deduces an erroneous answer which he suggests or assures the applicant is the proper answer upon the facts stated, and writes such answer down, will proof of such assurance or that the answer was so dictated, advised or suggested by the medical examiner operate to estop the company from questioning the truth of the answer?
"Question 3. From the facts stated and the testimony of Dr. J.H. Erwin quoted, was the jury authorized to infer, or is this court, authorized to infer, that appellant's medical examiner, Dr. Erwin, did dictate, advise or suggest the answer of Mrs. Payne that she was not pregnant or assure her that it was the proper answer upon the facts stated by her to him?
"Question 4. Did the trial court err in refusing to instruct the jury, as requested by appellant, to return a verdict in its favor?"
The answer to Question 4 makes it unnecessary to answer the first three questions.
To the fourth question we answer, that the court should have instructed the jury to return a verdict in favor of the defendant.
The certificate provides that the answers in the application and the medical examiner's report are made a part of the certificate, whereby Mrs. Payne warranted the answer made to the question, "whether or not she was at the time pregnant," to be true; that is, she warranted that she was not at that time pregnant, and that the answer as recorded by the medical examiner was the answer she gave to the question. The fact warranted being untrue rendered the certificate void. (Kansas Mut. Life Ins. Co. v. Pinson,
It is insisted by appellee that this certificate of relief comes within the rule announced in Equitable L. Ins. Co. v. Hazlewood,