Mutual Reserve Fund Life Ass'n v. Cotter

• Decision Date: 22 October 1904
• Citation: 83 S.W. 321
• Parties: MUTUAL RESERVE FUND LIFE ASS'N v. COTTER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

83 S.W. 321

MUTUAL RESERVE FUND LIFE ASS'N v. COTTER et al.^*

Supreme Court of Arkansas.

October 22, 1904.

Appeal from Circuit Court, Cross County; Felix G. Taylor, Judge.

Action by Arthur Cotter and others against the Mutual Reserve Fund Life Association. From a judgment for plaintiffs, defendant appeals. Reversed.

Rose, Hemingway & Rose, for appellant. McCulloch & McCulloch, for appellees.

BATTLE, J.

This action was brought by W. M. Kennedy, as administrator of John Riffey, deceased, and by Arthur Cotter and W. D. Newburn, against the Mutual Reserve Fund Life Association and the United States Fidelity & Guaranty Company, upon a policy of $1,000 issued by the Reserve Fund Life Association on the life of John Riffey for the benefit of Arthur Cotter and W. D. Newburn, and bearing date the 30th of June, 1898; Riffey having died. The plaintiffs recovered judgment, and the defendants appealed.

The policy was issued in pursuance of an application by John Riffey, the insured, in the month of June, 1898, for the benefit of the appellees Cotter and Newburn, in which it was expressly agreed that the answers and statements contained in parts 1 and 2 thereof, by whomsoever written, were warranted to be full, complete, and true, and that if any of the answers or statements made are not full, complete, and true, or if any condition or agreement shall not be fulfilled as required therein or by the policy, then the policy issued thereon shall be null and void. These stipulations, by the terms thereof and by the provisions of the policy, became a part of the policy.

In the application were the following questions and answers:

"Q. How long since you consulted or were attended by a physician?

"A. September, 1897.

"Q. State name and address of such physician?

"A. Name, W. B. Snipes; address, Spring Creek.

"Q. For what disease or ailment?

"A. Malarial fever."

The facts were: He was sick in September, 1897, at Spring Creek; had a light attack of fever; was in bed one day; and Dr. Snipes attended him two days. In October, 1897, about two weeks, or longer, thereafter, he was very sick at Marianna; suffered intense pain; had two physicians (Drs. Drake and Freeman) attending him; and his wife and daughter were called to his bedside. His physicians visited him as often as twice a day, and made as many as 30 or 40 professional visits. He was sick a month or longer. He failed to make known to the life association the sickness in October.

In Mutual Reserve Fund Life Association v. Farmer, 65 Ark. 581, 595, 47 S. W. 850, 853, cited by appellees, the question asked the insured was, "Has the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity, or ever had any disease, weakness of the head, throat, heart, lungs, stomach, kidneys, bladder, or any disease or infirmity whatever?" It "was answered by the examining physician (whose answers the applicant made his own) by...