Equitable Life Assur. Soc. v. Hazlewood

Decision Date06 December 1889
Citation12 S.W. 621
PartiesEQUITABLE LIFE ASSUR. SOC. <I>v.</I> HAZLEWOOD.
CourtTexas Supreme Court

Appeal from district court, Delta county; E. W. TERHUNE, Judge.

Action by R. R. Hazlewood upon a policy of insurance issued upon the life of his brother, Henry C. Hazlewood, by the defendant, the Equitable Life Assurance Society of the United States. Defendant appeals.

Maxey, Lightfoot & Denton and Hodges & Lane, for appellant. J. A. Templeton, E. B. Perkins, and E. H. Bennett, for appellee.

HENRY, J

Upon the application of Henry C. Hazlewood, appellant, in August, 1887, issued its policy upon his life, payable to Robert R. Hazlewood, if living, if not, then to his brother, Henry C. Hazlewood, for the sum of $15,000, payable at the death of the said Henry C. H. C. Hazlewood was a younger brother of R. R. Hazlewood. He died in March, 1888, aged then about 28 years. Appellee, beginning with the year 1881, and between that time and the date of the application for the insurance, had advanced to the said Henry C. various sums of money, amounting to about $1,200, for which the said Henry acknowledged an indebtedness. On the back of the application for the insurance, and just above the signatures of both of said Hazlewood, is a printed agreement in the following words: "It is hereby agreed that all the foregoing statements and answers, as well as those made, or to be made, to the society's medical examiner, are warranted to be true, and are offered to the society as a consideration of the contract." In the body of, and on the back of, the application, and above said signatures, there are a number of questions and answers relating to the risk. Attached to the application is another paper, styled, "Medical Examiner's Report," at the beginning of which appears the signature of Henry Clay Hazlewood, and at the end of it the name of the medical examiner. Between the two signatures there appear a great number and variety of questions and answers, relating to the history of the said Henry and of his ancestors, and collateral kindred, and to his physique, system, general health record, habits, and environment. The answers are usually "Yes" or "No," and, from the space allowed for them in the form used it is evident that they are required to be monosyllabic. Some of the answers are evidently made by the medical examiner, and some by the subject of the examination. There is nothing but the nature of the answers to distinguish those of the medical examiner from those of the subject of the examination; and it is not easy to distinguish, in some instances, by which one the answer was really made. While many of the questions answered by the witness relate to facts necessarily within his knowledge, and to which he evidently ought to have been able to give categorical and truthful answers, there are others seemingly required to be and in fact answered by him, about which he could not, in the nature of things, have had exact and positive knowledge, and about which it is not probable that he could have expressed himself satisfactorily by simply answering "Yes" or "No." All answers were written down by the medical examiner. The policy sets out on its face that it is issued "in consideration of the application, and of each statement made therein." Among the provisions of the policy is one reading: "If any statement made in the application for this policy be in any respect untrue, this policy shall be void." The application set out on its face: "I certify that I am temperate in my habits, and am, to the best of my knowledge and belief, in sound physical condition, and a satisfactory subject for life assurance." This was signed by the insured, and indorsed by the beneficiary. Under the general health record, the question was asked in the written and printed medical examination which was sent forward to the company in New York: "(13) Any history of serious illness, injury, or infirmity, etc.?" to which the insured answered, "No." "(16b) When, and for what, has medical advice been sought within the last three years?" to which the insured answered, "Nothing." The medical examiner of defendant testified that he asked both of the above questions, and the assured answered them as recorded, and made no other statements under those heads. He says: "I wrote the answers. Mr. H. C. Hazlewood was sitting at my left elbow. I asked him each question, and wrote the answer as he gave it. First, had him sign at the top. Asked him questions 1 to 18, inclusive, and then wrote the answers. After the examination, he asked me what sort of a risk he was. I told him he could see for himself, and gave him the report; and he read it over himself. I asked him each question separately, and wrote his answers. He told me he had not sought medical advice in three years. That question is considered material. All are so regarded, as all go to make up the report. * * * Henry Clay Hazlewood gave no history of mental disorder or derangement. Applicant ought to have informed me of any mental derangement. Absent-mindedness, or hallucinations of fear, and the like, — general belief that some one was after applicant, to kill him, or imagining something to exist that did not, — would be a serious question." In the written examination the question was asked: "(6) Any history of mental derangement?" to which the applicant answered, "No." In the medical examination is the printed question to the applicant: "(8a) Ever spat blood, or any history of chronic hoarseness or cough, or of asthma, or shortness of breath?" To which the insured answered, "No." The controverted questions as to breaches of warranty raised by the pleadings, referred to in the evidence, and discussed in the brief of appellant's counsel, are thus stated in the brief: "The applicant covenants in writing, and warrants, that to the best of his knowledge and belief he is in sound physical condition. He warrants that he has not sought medical advice for anything within the last three years. He warrants that there has been no mental derangement. He warrants that there is no application pending for other insurance. He warrants that there has been no severe illness, coughs, or other ailments," etc. It is contended that the court erred in refusing to give the following charge at the request of defendant: "If the jury believe from the evidence that Henry Clay Hazlewood, in the application for the policy of assurance, warranted that all the statements in such application, and all the statements and answers made to the society's medical examiner, were true, and that such application was made a part of the policy, and it was therein provided that if any statement in such application was in any respect untrue, the said policy should be void, then I charge you that all three of such instruments, taken together, constitute the contract between the parties, and a warranty on the part of the assured that all the statements and answers to the medical examiner were true; and, if you further believe from the evidence that the said Henry Clay Hazlewood, in his medical examination, in answer to the printed questions propounded by the society, had his answers to said questions put down in writing by the medical examiner opposite said questions, after said Hazlewood had signed said medical examination, and that after said answers were put down he read over and examined the same, and assented thereto, and the same was sent forward with the application, as the basis of the policy, and the same was issued by defendant upon the reliance of the truth of such answers, then, if you find from the evidence that said written answers in said medical examination were in any respect untrue, you will find for the defendant." And also: "In refusing to grant the defendant's motion for a new trial in this, that it was clearly proved that the contract was embraced in the application, the answers of the assured to the medical examiner, and the policy, taken together, and they constitute a warranty that the statements therein made were true, when the facts fully show that they were not true, that at the time of the application the assured was not in sound physical condition, but was in bad health, and misled defendant and its officers by his statements regarding his condition."

The doctrine contended for by appellant, that a warranty must be strictly complied with, is fully maintained by the authorities quoted in his brief. Mr. Bliss, in his work on Insurance, says: "By introducing them, they stipulate, in effect, that they are so material that if not strictly complied with the whole contract is rendered void. A misstatement in a warranty is therefore fatal to the contract, although arising from the most innocent mistake, or from false information afforded by others, or from mere inadvertence, and as much so as if made with the most willfully fraudulent intent." Section 36. In the case of Jeffries v. Insurance Co., 22 Wall. 53, the court says: "The proposition at the foundation of this point is this: that the statements and declarations made in the policy shall be true. This stipulation is not expressed to be made as to important or material statements only, or to those supposed to be material, but as to all statements. The statements need not come up to the degree of warranties. They need not be representations, even, if this term conveys an idea of an affirmation having any technical character. `Statements and declarations' is the expression; what the applicant states, and what the applicant declares. Nothing can be more simple. If he makes any statement in the application, it must be true. If he makes any declaration in the application, it must be true. A faithful performance of this agreement is made an express condition to the existence of a liability on the part of the company." Again, on page 56: "Many cases may be found which hold that where false answers are made to inquiries which do not relate to the risk the policy is not...

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