Hoeland v. Western Union Life Ins. Co. of Spokane

• Decision Date: 29 March 1910
• Parties: HOELAND v. WESTERN UNION LIFE INS. CO. OF SPOKANE.
• Court: Washington Supreme Court

107 P. 866

58 Wash. 100

HOELAND v. WESTERN UNION LIFE INS. CO. OF SPOKANE.

Supreme Court of Washington

March 29, 1910

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Malvina Hoeland, executrix of the estate of Adolph Hoeland, deceased, against the Western Union Life Insurance Company of Spokane. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Richard B. Harris and B. C. Barrington, for appellant.

Danson & Williams, for respondent.

GOSE J.

On April 8, 1908, the appellant executed and delivered two policies of $5,000 each, whereby it insured the life of Adolph Hoeland. The loss was made payable to the executors administrators, or assigns of the assured. The assured died on the 8th day of September, 1908, and seasonable notice of that fact was given to the appellant. It promptly denied liability, and this action was commenced to recover upon the policies. There was a verdict and judgment for the plaintiff, and the defendant has appealed.

The appellant resists recovery upon two grounds: (1) That the insured committed suicide; and (2) breach of warranties contained in the application for the policies. The first clause in the policy recites that the appellant, 'in consideration of the application for this bond which is hereby made a part of this contract, agrees to insure the life of Adolph Hoeland,' etc. The application begins with the statement: 'This application, made to the Western Union Life Insurance Company of Spokane, Washington, is the basis and a part of a proposed contract for insurance. I hereby declare and warrant that I am in good health and of sober and temperate habits, that all the following statements and answers and all those that I made to the company's medical examiner in continuation of this examination, are by me warranted to be true, and are offered to the company as a consideration of the contract.' At the close of his answers in the medical examiner's report, the applicant certifies that his 'answers to the foregoing questions are correctly recorded by the medical examiner.' In the medical examiner's report the appellant was asked: 'Have you ever had any of the following diseases? Of each illness state date, number of attacks, duration, severity, complications and results.' This question is followed by an enumeration of diseases, including epilepsy, paralysis, apoplexy, and diseases of the nervous system. The next question is: 'Headaches--severe, protracted, or frequent?' To which the applicant answered, 'No.' This is followed by numerous inquiries as to other diseases. The applicant was then interrogated and answered as follows: 'Q. Give name and address of physician last consulted. A. Dr. August Caille, New York. Q. When was he consulted? A. Fifteen years ago. Q. State nature of complaint. A. Severe cold. Q. Duration of complaint. A. About one week. Q. Do you now use, or have you ever used, opiates, chloral, cocaine, or any other narcotic drug? If so, to what extent? A. No. Q. Are you now in good health so far as you know or believe? A. Yes.' The breaches of warranty alleged as constituting the second defense are that each of these answers was false; that the applicant was at the time he made the application, and had been for a long time, afflicted with severe and frequent headaches; that he had often consulted a physician regarding them; that for a long time prior thereto he had been using opiates and other narcotic drugs; and that he was not in good health, as he well knew. At the close of the testimony, the court withdrew from the jury all questions relating to any breach of warranties, but submitted the case on the defense of suicide. The jury returned a general verdict for the amount of the policies.

The appellant contends that the answers which we have set out are warranties under the stipulations of the contract, whilst the respondent insists that they are only representations, or the expression of the opinion of the assured, as to the matters inquired of. We think the appellant's contention in this respect is correct. The rule is that, when a representation made by an applicant for insurance is carried into a contract and expressly made a part of it, it becomes a warranty, and its materiality is settled by the agreement of the parties. Elliott on Insurance, § 102; White v. Provident Savings Life Assurance Society, 163 Mass. 108, 39 N.E. 771, 27 L. R. A. 398; Rice v. Fidelity & Deposit Company, 103 F. 427, 43 C. C. A. 270. The difference in legal effect between a 'warranty' and a 'representation' is that the falsity in a warranty in any particular is fatal to a recovery upon the policy, whilst a representation, to have that effect, must refer to some fact material to the insurance, and it must be false or fraudulent. Weigle v. Cascade Fire & Marine Ins. Co., 12 Wash. 449, 41 P. 53; Elliott on Insurance, § 114. Our first duty is to ascertain with precision what the warranty is. The only purpose of the application and the questions propounded was to discover whether the applicant was a desirable risk. The true meaning of the question first propounded is: Had the applicant had headaches, severe, protracted, or frequent, which were a disease? The appellant was not interested in knowing whether the applicant had ever had a headache. As its medical examiner well said in testifying in this case, every one has headaches. The appellant, however, was not concerned about trifling ailments which every one has and which are forgotten as soon as the disorder disappears. But it was concerned about diseases. That it was inquiring about diseases is the only logical deduction from the language employed. The warranty, then, is that the insured never had a disease of the character mentioned.

This view has abundant support in the adjudged cases. In Black v. Travelers' Insurance Company, 121 F. 732, 58 C C. A. 14, 61 L. R. A. 500, the insured warranted that he had never had 'any bodily or mental infirmity.' He had, however, while a soldier in the Civil War, received a gunshot wound in the back of the head, by which the exterior table of the skull was fractured, and a small piece had been removed, leaving a slight depression of the inner table. He was receiving a pension at the date of his application, on account of vertigo and impaired vision resulting from the wound. The court held that the injury could not be held a bodily infirmity as a matter of law, and that such question, together with the fact that the insured was receiving a disability pension when he...