Perea v. State Life Ins. Co. of Indianapolis, Ind.

• Decision Date: 03 August 1910
• Citation: 110 P. 559,15 N.M. 399,1910 -NMSC- 027
• Parties: PEREA v. STATE LIFE INS. CO. OF INDIANAPOLIS, IND.
• Court: New Mexico Supreme Court

110 P. 559

15 N.M. 399, 1910 -NMSC- 027

PEREA v. STATE LIFE INS. CO. OF INDIANAPOLIS, IND.

Supreme Court of New Mexico

August 3, 1910

Rehearing Denied Aug. 23, 1910.

Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.

Action by Emilia M. Perea against the State Life Insurance Company of Indianapolis, Ind. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to collect the amount due upon a life insurance policy issued by appellant to Pedro Perea. The defense interposed was: (1) That in response to the question No. 16 by the medical examiner of the appellant, as follows "Have you consulted a physician within the past two years for anything trivial or otherwise?" the said Perea answered as follows: "Once last year for malarial fever"--and that said answer of the said Perea was false, in this: that in the year 1904 the said Perea consulted a physician for dyspepsia and indigestion. (2) That in response to the question No. 17 by the same medical examiner, as follows: "Have you ever had any of the following diseases? * * * Dyspepsia, or indigestion?" the said Perea answered, "No,"--and that said answer was false, in this: that prior to the making of said application for a policy of insurance to the appellant the said Perea had been afflicted with indigestion and had been treated for said disease by a well-known physician. (3) That in response to question No. 18 by the said medical examiner as follows: "State particulars of any illness constitutional disease, or injury you have had, giving date, duration, and remaining effects, if any," said Perea answered: "Malaria in August, 1903, and July, 1904, slightly, no results"--and that said answer was false, in this: that in 1904 the said Perea was afflicted with, and received medical attention for, the disease of indigestion. (4) That in response to questions 18a and 18b as follows: "(18a) When did you last consult a physician?" "(18b) For what?" the said Perea to question 18a answered, "July, 1904," and to question 18b he answered "Malaria,"--and that said answer to 18b is false, in this: that the said Pedro Perea consulted a physician for indigestion in 1904. (5) That the said Perea gave his promissory note for a large part of the first year's premium on said policy, and that, when note became due, he failed, neglected and refused to pay the same, and that consequently, under the provisions of the policy, the said policy became null and void. Plaintiff replied, alleging the truth of the several answers of said Perea, and alleging that long before the death of the insured the appellant had received without objection the first annual premium in full, and that the note had been paid. It appears that the date of the policy is July 30, 1905, and that the insured died January 11, 1906, of hemorrhage due to ulceration of the stomach. At the close of the trial both parties moved for verdict, and appellant, in addition, presented instructions relating to the facts adduced in proofs. The court directed a verdict for appellee, and judgment was awarded thereon.

Charles F. Coffin and E. W. Dobson, for appellant.

Neill B. Field, for appellee.

PARKER J. (after stating the facts as above).

1. The first proposition presented is that the court erred in refusing to grant a continuance to a later day in the term. Appellant made a motion for continuance based upon two grounds: (1) Absence of leading counsel for appellant, who was familiar with all the facts, and upon whom local counsel relied for that reason; (2) absence of two witnesses in Santa Fé, physicians, whose knowledge of the insured's physical condition prior to the issuance of the policy had just come to the attention of counsel. A supplemental motion for a continuance to a later day in the term was filed on account of the absence of another witness, but this witness later appeared and testified. The court overruled the motion for a continuance. It appears that 30 days prior to the term the case was noticed for trial by counsel for appellee by filing with the clerk notice to that effect. It does not affirmatively appear that this notice was served directly on counsel for appellant, but we conclude it was for the reason that the whole tenor and effect of the motion for continuance, and the affidavit in support thereof, as well as some colloquy between counsel and the court in discussing the motion, leaves one with the impression that counsel for appellant relied solely upon the exigencies of an ordinary term of court, and the fact of notice is not specifically denied in the affidavit. We have, therefore, a condition of case where counsel for appellant merely speculated on the probable course of events of the term, and where he took no means to have associate counsel present until on the first day of the term, when he undertook to obtain his presence by wire. This will not do. In so far as the motion is concerned in regard to the witnesses in Santa Fé, it is sufficient to say that, when the court asked if he desired a continuance until the next day to have them present, he declined to say he did. This case emphasises the salutary rule that motions for continuance are ordinarily to be decided by the trial court, and his discretion, viewed from...