Franklin Life Insurance Co. v. Galligan

• Decision Date: 14 March 1903
• Citation: 73 S.W. 102,71 Ark. 295
• Parties: FRANKLIN LIFE INSURANCE COMPANY v. GALLIGAN
• Court: Arkansas Supreme Court

73 S.W. 102

71 Ark. 295

FRANKLIN LIFE INSURANCE COMPANY v. GALLIGAN

Supreme Court of Arkansas

March 14, 1903

Appeal from Jefferson County Circuit Court, ANTONIO B. GRACE, Judge.

Consolidated actions by R. A. Galligan and W. P. Lawton against the Franklin Life Insurance Company. From a judgment for plaintiff Galligan, defendant and the other plaintiff appeal. Reversed in part.

STATEMENT BY THE COURT.

On March 6, 1899, the Merchants' Insurance Company of the United States, a Missouri corporation, with general offices in St. Louis, Mo., issued and delivered to one Stephen Galligan its policy of insurance, by which it agreed to pay the beneficiary therein named the sum of $ 3,000 upon proof of death of said Galligan. The said policy was signed by the president and secretary, and the corporate seal was affixed at St. Louis, Mo. It was stipulated therein that the premiums should be paid at the home office, unless otherwise authorized by the association's receipt, signed by the secretary; and, upon the death of insured, it agreed to pay to the beneficiary, "at the home office of the association in the city of St. Louis, state of Missouri three thousand dollars." The beneficiary, Maray V Galligan, died on the 24th day of April, 1899, and thereafter Stephen Galligan, made the following indorsement upon said policy: "Owing to the fact that my late wife, Mary V Galligan, departed this life at Tucker, Arkansas, on the 24th day of April, 1899, it is my desire and wish that this policy be paid to my son, Willie P. Galligan; that is to his legal representatives, appointed by me or the proper court. This 22nd day of June, 1899. S. Galligan, Insured." Stephen Galligan died on August 7, 1899, and, notwithstanding proofs of his death were submitted to the Franklin Insurance Company, which company had assumed the insurance, it refused to pay the loss, claiming that the policy was void from its inception, on account of misrepresentations made by assured in obtaining the same. Suit was thereupon brought by R. A. Galligan as guardian for appellee, who claimed as the heir of S. Galligan, and as substituted beneficiary under the policy; and a suit on the same policy was instituted by cross-appellant, W. P. Lawton, who based his claims as the heir of his daughter, Mary V. Galligan, the original beneficiary named in the policy. To the complaints above, the company filed its answers, in which it admitted the execution and delivery of the policy and the death of Galligan, and rested its defense upon the following misrepresentations, which it claimed were made by Galligan in obtaining the policy, and which consequently rendered the policy void: (1) That in answer to the question, "How long since you were attended by a physician, or had occasion to consult one?" the deceased replied, "1893." (2) That in answer to the question, "State the nature, gravity, and duration of the ailment or disease," the defendant replied, "Typhoid fever; four weeks." (3) That in answer to the question, "Give the name and address of the physicians," the deceased replied, "R. W. Lindsay, Little Rock, Ark." (4) That in answer to the question, "Do you use ardent spirits, wine, or malt liquors?" the deceased replied, "No." (5) That in answer to the question, "Do you smoke or use tobacco?" the deceased replied, "No."

The proof showed that Dr. Edwin T. Pry, a physician who lived at Tucker, who had been employed by the agent of the insurance company to examine Galligan, and who wrote down all of the answers of Galligan to the questions in the application, had during the month of August, 1898, attended Galligan on two separate occasions, at which time he found him suffering "with a mild remittent fever or bilious fever--a mild bilious attack." Dr. Pry further testified, however, that at the time he prepared the application he remembered the attack, and at that time he had certified that it had in no manner affected Galligan's constitution. He stated he did not remember whether or not he called Galligan's attention to this illness, or whether Galligan mentioned the fact of this illness to him, but as he frequently tells applicants, when they mention a mild illness, like that one, they should mention something more serious, it might be possible that Galligan called his attention to this illness, and he did not note it, as he did not consider the bilious attack of sufficient import to be included in the application, and therefore had, with full knowledge of that attack, certified that no previous illness of Galligan had in any manner affected his constitution.

The two cases were consolidated, and a common fight was made by both plaintiffs against the insurance company. The verdict was in favor of plaintiff Galligan against insurance company and Lawton, and they both appeal.

Austin & Taylor, for appellant.

White & Altheimer and F. T. Vaughan, for appelle, Galligan.

Cypert & Cypert and Bridges & Wooldridge, for cross-appellant, Lawton.

OPINION

WOOD, J., (after stating the facts).

By the contract of insurance the answers given in the application are warranties. If untrue they avoid the policy. But they must be construed in the sense contemplated by the parties to the contract. By questions, "How long since you were attended by a physician, or had occasion to consult one?" "State the nature, gravity, and duration of the ailment or disease," and "Give the name and address of that physician," and the answers thereto, the parties had in view some ailment or disease that would affect the contract of insurance. They did not, evidently, have in mind some slight indisposition, or trivial and temporary ailment, that in no wise affected the general health or constitution of the assured, and therefore did not increase the risks of insurance. In Providence Life Insurance Society v. Reutlinger, 58 Ark. 528, 25 S.W 835, the court said: "Where questions propounded to an applicant for insurance upon his life as to his physical condition are in such terms as include the most trivial ailments or injuries, they should be interpreted as referring only to such illness or injuries as affect the risk to be assumed, unless they are in words which exclude such interpretation. The presumption is that trivial ailments or injuries are not within the contemplation of the parties, and that the questions, in the absence of words directing attention to them, are not asked with the view or purpose of ascertaining the existence of the same. The answers of the applicant should be interpreted in the same manner as the question eliciting them; that is to say, as responsive to the questions in the sense in which they are asked." The fact, therefore, that the assured had since 1893 a "mild remittent or bilious fever," and was attended during this illness by another physician than Dr. Lindsay, did not falsify the answers to the questions in the application supra, because Dr. Pry, the physician who attended him during this sickness, testified that "he was not very ill; having mild remittent or bilious fever, that did not affect his constitution." Moreover, Dr. Pry, the witness who attended the assured during this illness, was also the examining physician for the company, who propounded the questions to the assured in the...