Illinois Bankers Life Association v. Theodore

• Citation: 47 Ariz. 314,55 P.2d 806
• Decision Date: 23 March 1936
• Docket Number: Civil 3663
• Parties: ILLINOIS BANKERS LIFE ASSOCIATION, a Corporation, and ILLINOIS BANKERS LIFE ASSURANCE COMPANY, a Corporation, Appellants, v. ANNA THEODORE, Executrix of the Last Will and Testament of the Estate of Harry B. Lagos, Deceased, Appellee
• Court: Supreme Court of Arizona

55 P.2d 806

47 Ariz. 314

ILLINOIS BANKERS LIFE ASSOCIATION, a Corporation, and ILLINOIS BANKERS LIFE ASSURANCE COMPANY, a Corporation, Appellants, v. ANNA THEODORE, Executrix of the Last Will and Testament of the Estate of Harry B. Lagos, Deceased, Appellee

Civil No. 3663

Supreme Court of Arizona

March 23, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and case remanded, with instructions.

Messrs Moeur & Moeur, for Appellants.

Mr. V L. Hash and Mr. L. C. McNabb, for Appellee.

OPINION

LOCKWOOD, C.J.

This is the second time this case has been before us on appeal. It is an action by Anna Theodore, hereinafter called plaintiff as executrix of the last will and testament of Harry B. Lagos, hereinafter called deceased, against Illinois Bankers Life Association, a corporation, and Illinois Bankers Life Assurance Company, a corporation, hereinafter called defendants, for the recovery of $2,500 on account of a certain life insurance policy written by defendant Illinois Bankers Life Association, the liability on which, if any, was afterwards assumed by the Illinois Bankers Life Assurance Company.

The defense presented by the pleadings and evidence was that the policy never took effect (a) because it was not delivered to deceased while he was in good health, and (b) that its issuance and delivery were procured by false material representations made by the deceased to the medical examiner of the defendant. The representations which it is claimed were false and material were in the following questions and answers on the written application for the policy signed by deceased:

"Have you ever changed your place of residence for the purpose of benefiting your health? If so, state particulars. No.

"Have you ever had any diseases of the following named organs, or any of the following named diseases or symptoms?... Habitual coughing? No.... spitting of blood or other hemorrhage? No."

The case was tried to a jury, which returned a verdict in favor of the plaintiff, and from the judgment on the verdict and the order overruling the motion for new trial, this appeal was taken.

There are some fifteen assignments of error grouped under eight legal propositions, which we shall discuss in their order. The first raised the question of whether the court erred in overruling defendants' motion for a continuance. The facts presented in support of this motion were as follows: The original defendant in the case was the Illinois Bankers Life Association. After the first trial and appeal, the case was sent back to the superior court for a new trial, which was set for the 4th of January, 1935. After such setting, and on December 26, 1934, on motion of plaintiff the Illinois Bankers Life Assurance Company was made a party to the action. On the next day, theattorneys who had previously represented the original defendant withdrew from the case, and immediately notified both defendants by mail of such withdrawal; their home office being in Monmouth, Illinois. On the afternoon of January 2, 1935, defendants retained the firm of Moeur & Moeur to represent them at the trial of the case, and the 3d of January, Moeur & Moeur filed a verified petition, setting forth the foregoing facts and requesting a reasonable continuance so that they might become familiar with all the facts and issues of the case. The matter came up on the morning of January 4th, and the motion for continuance was denied and defendants were compelled to go to trial immediately. While it is admitted that motions for continuance are within the discretion of the trial court, it is contended that such discretion must be exercised in a reasonable manner, and that under all of the circumstances of this case it was unreasonable to deny the continuance. A new party defendant was brought in on December 26th upon motion of plaintiff, and after the case had been set for trial. Immediate notice was given to the defendants by the then attorneys for the Illinois Bankers Life Association that they intended to withdraw from the case, and new counsel were employed. In view of the fact that the office of defendants was in Illinois, we think the new attorneys were secured with as much expedition as was possible. When Moeur & Moeur were retained, they had but one full working day in which to prepare for trial. We think that in the absence of a showing that the withdrawal of previous counsel was either unjustified or merely collusive for the purpose of delay, it was an abuse of discretion to deny the continuance. this conclusion is strengthened by the showing made on one of the other assignments of error whichwe shall discuss further on in this opinion.

The second proposition is that the court erred in allowing two medical witnesses to testify as to their opinion as to when the disease from which Lagos died commenced. The questions to which objections were made were in the following language:

"Now, tell the jury, from the history you had from him and the knowledge that you gained by virtue of your examination and treatment, how long he had had that disease."

"Now, basing your answer on your examination of him at that time and his history as you obtained it from him, state whether or not, in your opinion, he was in a state of good health and physically sound on November 19, 1929." (Italics ours.)

The objection was based on the ground that it called for the opinion of an expert witness, without first setting forth the facts upon which the witness based his opinion, the particular objection being that the opinion was partially based upon the history of the case as given to the witness by the deceased. A case almost precisely in point is that of Osborn v. Carey, 24 Idaho 158, 132 P. 967, 969. The court said as follows:

"The history of the case was given to Drs. Cromwell and Zeller by the parents and friends of the plaintiff and was not put in evidence, and defendant could not rebut it and show that the history as given to them was not a true history of the case, provided he desired to do so. The opinions of the plaintiff's experts being thus based upon assumed facts not in evidence, such opinions have no value as proof."

The same rule is followed in Lehigh Stone Co. v. Industrial Commission, 315 Ill. 431, 146 N.E. 533. Plaintiff should have first developed the history of the case as given to the two witnesses, together with the objective symptoms which they found on examining deceased, and their treatment of him, and after that put the hypothetical question. Since, however, it appears from the entire record that these facts were eventually presented to the jury, and since they could have been brought out on cross-examination, if this were the only error we would not reverse the case on that ground.

The third legal proposition is that it was error to refuse to permit defendants' medical expert, Harry J. Felch, to answer the following questions:

"Do you know what the common practice is among doctors in examining applicants for life insurance?

"Do you know what the proper procedure is on lungs, what the proper procedure is in the medical profession in examining a man for life insurance?"

We think the court properly sustained the objection to the first question. The common practice of doctors in examining applicants for life insurance was not material. The proper practice for such examiners might, perhaps, have been, but the transcript shows that the court, after considering the question, offered to permit the witness to testify as to what was the proper and accepted medical rule in such cases, but defendants' counsel did not seek to press the inquiry along that line. There is no merit in the assignments grouped under legal proposition number three.

The fourth proposition is that the court erred in refusing to allow defendants to refresh the recollection of a certain witness by means of the transcript of his testimony at the former trial. That transcript shows that this witness had then testified to a very material fact in support of defendants' theory of the case at the former trial. On the second trial it appeared that he had recently accepted employment from plaintiff's attorney and that his memory, for some reason, had completely failed as to the vital points of his previous testimony. There was some discussion as to whether, under such circumstances, he could be impeached as a hostile witness; but counsel for defendants finally disavowed any intention of doing this and merely attempted to refresh his memory by reading from the transcript of his previous testimony. The court would not allow the specific questions and answers contained in the transcript to be read to the witness, but permitted him to take the transcript himself and examine it for the purpose of refreshing his memory, excusing him from the witness-stand temporarily for this purpose. However, counsel for defendants did not see fit to recall him after he had had this opportunity. We think there was no error in the court's ruling so far as the particular matter was concerned. This incident, however, does have a bearing on the effect of the refusal of the court to grant a continuance. When counsel for defendants began to cross-examine him, objection was made and the trial judge stated from the bench that the witness could not be cross-examined nor impeached as a hostile witness because counsel for defendants had not questioned him before they placed him on the stand. Their reply was that they had been forced into trial so soon that they had had no opportunity to question the witnesses and had been compelled to rely upon the transcript of the evidence at the previous trial and, therefore, were entitled to assume that that would obviate the necessity of...