Providence Life Assurance Society v. Reutlinger

• Decision Date: 10 March 1894
• Citation: Providence Life Assurance Society v. Reutlinger, 58 Ark. 528, 25 S.W. 835 (Ark. 1894)
• Parties: PROVIDENCE LIFE ASSURANCE SOCIETY v. REUTLINGER
• Court: Arkansas Supreme Court

25 S.W. 835

58 Ark. 528

PROVIDENCE LIFE ASSURANCE SOCIETY v. REUTLINGER

Supreme Court of Arkansas

March 10, 1894

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Reverse and remanded.

Rose Hemingway & Rose for appellant.

1. The statement, by the terms of the application and of the policy was made a warranty, and, unless literally true, the policy was void. 22 Wall. 47; 91 U.S. 510; Cook, Life Insurance sec. 15; Bliss, Life Ins. secs. 34, 63-4-5, 126, 128, 129, 132; 13 A. 4; 50 N. J. Law. 287; 3 Gray, 580; 4 H. of L. Cases, 484; 2 Cromp. & M. 348; 6 C. B. (N. S.) 437; 6 Jur. (N. S.) 826; 39 End. 475; 1 McA. 41; 1 Cent. L. J. 597; 3 Dill. 217; 4 Daly, 296; 2 N.Y.S. Ct. 247; 61 N.Y. 571; 50 How. Pr. 367; 2 Hun, 402. See the following cases, which deal especially with false statements relative to attendance by physicians: 5 Bing. 503; 38 L. J. Chy. 132; 3 Bigelow L. Ins. Rep. 264; 3 id. 199; 1 Foster & P. 735; 25 Hun, 442; 54 Hun, 294; 17 Minn. 491; 10 Am. Rep. 166; 49 N. J. Law. 587; 153 Mass. 176; 2 Rob. 455; 8 Ont. App. 716; Berryman, Ins. Dig. 802. Against this array counsel oppose nothing except 32 N.W. 619, where it is held that, in order to vitiate the policy, it must appear that a physician had been called for a serious illness.

2. It was error to tell the jury that they might find, from the mere fact that Rentlinger spoke English with a foreign accent, that he was not bound by his written contract. There was no proof of imposition or fraud. 2 Wharf. Ev. sec. 1028; 117 U.S. 519; 78 Ind. 136; 6 Black. 380; 29 Ind. 580; 82 Pa.St. 202; 3 Ind. 449; 18 Kas. 529; 100 Ill. 298; 79 Ind. 604; 56 N.Y. 137; 70 Ind. 19; 55 N.H. 593; 54 Ill. 196; 72 Ind. 533; 29 Iowa 498; 12 Neb. 433; 118 Mass. 109; 117 U.S. 534.

3. If the facts contended for by counsel were true, their position would not be improved, save they might recover the premium. If Reutlinger was so ignorant of English that he did not understand the doctor, and the doctor did not understand him, then there was no aggre-gatio meritium, and no contract. 117 U.S. 534; 50 Pa.St. 299; 88 Am. Dec. 544; 146 U.S. 483.

Caruth & Erb and Morris M. Cohn for appellee.

1. Insurance contracts, printed to suit the insurance companies, using terms chosen by them, and full of dangerous pitfalls, are reasonably construed in favor of the assured. 32 N.W. 610; 111 U.S. 335; 10 N.E. 242, 247; Parson's Cont. vol. 2, ch. xv, sec. 471; Bacon Ben. Soc. sec. 203; 12 Wall. 404; 54 Ark. 376; 104 U.S. 197; 21 A. 680. Taking the terms used by the application and the assured's answer, and construing them together, they mean simply that assured had never called a doctor for a serious complaint in his life. Conceding the answer to be a warranty, there was no breach. 2 Parson's Cont. p. 468, note; 2 So. Rep. 125, 131; 59 Wis. 162; Bac. Ben. Soc. p. 268; 104 U.S. 197, 204; 32 N.W. 610; 24 F. 670; 41 id. 506; 1 A. 340; 110 Pa.St. 84; 23 N.E. 997; 2 Dill. 570; 13 Wall. 222; 112 U.S. 250. Mere temporary disorders, which have no bearing upon the general health, do not come within the warranty. Berryman's Dig. p. 1483, et seq.; 73 Ill. 586; 93 Ind. 24; 70 N.Y. 72; 85 Ill. 537; 20 F. 596 and note; 3 Cent. L. J. 302; 2 So. 125; 59 Wis. 162; 73 Ill, 586. Great array of authority sustains the position that when an insurance company asks about complaints one has had, and in the same connection by what physician one has been attended, the physician referred to means one who has attended for some serious complaint, going to man's constitution, or seriously affecting his health.

2. The assured's answer was not a warranty, but a representation, and his belief and good faith are elements which might have been considered. 95 U.S. 673; 111 U.S. 335; 2 So. Rep. 125; 80 Ala. 467; 88 Cal. 497; 119 Ill. 474; 25 N.E. 299.

3. There was no error in the third instruction. 104 U.S. 197; 32 N.W. 610, 614: 52 Ark. 11.

BATTLE, J. Mansfield, J., did not sit in this case.

OPINION

BATTLE, J.

Appellee commenced this action against the Providence Savings Life Assurance Society of New York upon a policy of insurance which was issued by it to her for $ 7,000 upon the life of her husband, Solomon Reutlinger, he having died. It re-suited in a verdict and judgment in her favor. The defendant appealed.

The policy begins as follows: "In consideration of the stipulations and agreements in the application here-for, and upon the next page of this policy, all of which are a part of this contract," etc. The application which is referred to in the policy was signed by the appellee and her husband, and contains the following language: "We further declare and warrant jointly and severally that all the foregoing statements and representations, as well as those made or to be made to the medical examiner, or in any certificate of health hereafter given to the society by me, are and shall be true and shall be the basis of the contract with the society if a policy be issued or renewed thereon, and that, if any untrue or fraudulent statement or representation shall have been made, or if at any time any covenant, condition or agree-merit herein shall be violated, said policy and insurance shall be null, void and of no effect."

Among the questions propounded by the medical examiner to the insured was the following: "When and by what physician were you last attended, and for what complaint?" To which he replied: "Never called a doctor in his life." Following the questions and answers in the medical examination, which were reduced to writing, are the following words in large type: "I hereby declare that I have read and understand all the above questions put to me by the medical examiner, and the answers thereto, and that the same are warranted by me to be true, and that I am the same person described as above." And just beneath these words is the signature of Solomon Reutlinger, the insured.

The appellant, in its answer, among other things, set out the warranties contained in the application, and the aforementioned question and answer, and stated that about three weeks before the application was made the insured had been attended by a regular physician upon six successive days, and that, by reason of the false answer, the policy was void. The evidence adduced at the trial tended to prove these allegations.

The main questions in the case are: Was the answer to the question an absolute warranty, or in the nature of a representation? If a warranty, was there a breach of it?

As a general rule, a warranty is a stipulation expressly set out, or by inference incorporated, in the policy, whereby the assured agrees "that certain facts relating to the risk are or shall be true, or certain acts relating to the same subject have been or shall be done." Its purpose is to define the limits of the obligation assumed by the insurer, and it is a condition which must be strictly complied with, or literally fulfilled, before the right to recover on the policy can accrue. It is not necessary that the fact or act warranted should be material to the risk; for the parties by their agreement have made it so. Lord Eldon says: "It is a first principle in the law of insurance that, if there is a warranty, it is a part of the contract that the matter is such as it is represented to be. The materiality or immateriality signifies nothing. The only question is as to the mere fact."

On the other hand, representations are no part of the contract of insurance, but are collateral or preliminary to it. When made to the insurer at or before the contract is entered into, they form a basis upon which the risks proposed to be assumed can be estimated. They operate as the inducement to the contract. Unlike a false warranty, they will not invalidate the contract, because they are untrue, unless they are material to the risks, and need only be substantially true. They render the policy void on the ground of fraud, "while a non-compliance with a warranty operates as an express breach of the contract."

Statements or agreements of the insured which are inserted or referred to in a policy are not always warranties. Whether they be warranties or representations depends upon the language in which they are expressed, the apparent purpose of the insertion or reference, and sometimes upon the relation they bear to other parts of the policy or application. All reasonable doubts as to whether they be warranties or not should be resolved in favor of the assured. Continental Life Ins. Co. v. Rogers, 119 Ill. 474, 10 N.E. 242; Fitch v. American Popular Life Ins. Co. 59 N.Y. 557; Moulor v. American Life Ins. Co. 111 U.S. 335, 28 L.Ed. 447, 4 S.Ct. 466; Campbell v. New England Life Ins. Co. 98 Mass. 381; Alabama Gold Life Ins. Co. v. Johnston 80 Ala. 467, 2 So. 125; National Bank v. Ins. Co. 95 U.S. 673, 24 L.Ed. 563.

Parties to contracts for life insurance have the right to stipulate that the indemnity shall be recoverable only on the conditions or contingencies agreed upon by them. When entered into, they should be construed and enforced according to the intent of the parties. In arriving at that intention, the nature of the contract and the object to be attained should be considered. Doubtful words should be so construed as to give to each its due force in the furtherance of the main purpose of the contract. If any interpretation of the contract is so absurd and unreasonable as to raise the presumption that such a result could not have been within the intention of the parties, it should be discarded, and one adopted more consistent with reason and probability.

The Supreme Court of Pennsylvania expresses our view as to the construction of contracts of insurance in Home Mutual Life Association v. Gillespie, 110 Pa. 84, 1 A 340, in this language: "Whilst, however, the insured is...