Reid v. Piedmont & Arlington Life Ins. Co.

• Decision Date: 31 October 1874
• Parties: ROSALINE REID, Respondent, v. PIEDMONT & ARLINGTON LIFE INSURANCE CO., Appellant.
• Court: Missouri Supreme Court

58 Mo. 421

ROSALINE REID, Respondent,

v.PIEDMONT & ARLINGTON LIFE INSURANCE CO., Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from St. Louis Circuit Court.

John Wickham with Crews and Laurie, for Appellant.

I. The application for insurance forms part of the contract, and the statements contained in it are warranties. (Daniels vs. Hudson R. Fire Ins. Co., 12 Cush., 416; Loehner vs. Home Mut. Ins. Co., 17 Mo., 255; Miller vs. Mut. Ben. Ins. Co., 31 Iowa, 231; Bliss Life Ins., pp. 53, 54, 55; May on Ins., 582.)

II. Affirmative warranties are conditions precedent, their truth must be pleaded by the assured, and the burden of proof rests on the plaintiff to show that they have been strictly complied with. (Wilson vs. Hampden Ins. Co., 4 R.I., 159; Miller vs. Mut. Ben. Life Ins. Co., 31 Iowa, 231; Craig vs. U. S. Ins. Co., 1 Pet. R., 416; Campbell vs. New England L. Ins. Co., 98 Mass., 402; McLean vs. Connecticut M. Ins. Co., 100 Mass., 474.)

When there is any concealment or false statement of facts existing at the commencement of the risk, the policy never takes effect, the risk is never assumed. (Obermeyer vs. Globe M. Ins. Co., 43 Mo., 579.)

III. It is immaterial whether the statements made in the application in this case be held to be warranties or representations, and even though the court, following the tendency of the recent decisions, should hold them to be representations, still the result would be the same; for the same line of decisions uniformly hold, that when an unlawful answer is made to a question which is, beyond doubt, material to the risk, policies obtained by such deceit are null and void. (May Ins., p. 582-590; France vs. Ætna Life Ins. Co., 2 Ins. L. Jour. 657; Kelsey vs. Universal Life Ins. Co., 35 Conn. 238; Miles vs. Conn. Ins. Co., 3 Gray, 580; Vose vs. Eagle Life & Sr. Ins. Co., 6 Cush., 42; Barrett vs. Saratoga C. Ins. Co., 5 Hill, 188; Anderson vs. Fitzgerald, 4 House of Lords, 484; Babbitt vs. Liverpool & London Ins. Co., Ins. Law Jour., April, 1872.)

A. J. P. Garesche, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff, as widow of Thomas J. Reid, brought this action on a policy of life insurance for $3,000 issued by the defendant.

The answer denied that the plaintiff or her husband complied with the conditions of the policy, and set up that the policy was obtained by fraud and misrepresentation in the application upon which it was founded, and which formed a part thereof; that the misrepresentations consisted of false statements and concealments by Thomas J. Reid, the party insured, in his application, in regard to the condition of his health at that time and prior thereto, and as to whether or not he had a family physician or medical attendant.

The replication denied all these averments made in the answer.

By the pleading it stands admitted that the application for insurance was made, by express agreement, a part of the contract, and the statements, therefore, became warranties, and hence, the question to be determined upon the trial was, whether they were true or false. The issue was one of fact, and if no error was committed in giving or refusing instructions, or in passing upon the admissibility of testimony, the verdict is conclusive. Among other inquiries in the application is the following: “Name and residence of your own or family physician, or of the medical attendant, who last rendered you professional service?” To this, the assured answered that he had none.

Upon the examination of Dr. Roberts, who was a witness, the defendants propounded the interrogatory: “What is the meaning of the phrase ‘family physician?’ ” The question was objected to, and the objection sustained. The question was addressed to the witness, as an expert, upon the theory that the expression had a technical signification. But this theory is not maintainable. The phrase “family physician” is one that is in common or ordinary use, and has no particular, definite or technical signification.

In May on Insurance, (§ 304,) the authorities are collected, and it is announced as the settled law, that a family physician is the physician who usually attends and is consulted by the members of a family, in the capacity of physician. And where the usual medical attendant is inquired for, the one who has been accustomed to attend and not the one who has occasionally attended, should be mentioned.

This question was much discussed in a recent case in Minnesota, where the majority of the court held, that the phrase “family physician,” in common use, was not a technical phrase, and that in their opinion, it might be sufficiently defined as signifying the physician who usually attended and was consulted by the members of the family in the capacity of a physician; that a person who usually attended and was consulted by the wife and children of the assured as a physician, would be his family physician although he did not usually attend on, and was not usually consulted as a physician by the assured, himself. Where there is no doubt about the fact of the physician's employment, or that he usually attended the family, the rule above laid down may be quite sufficient; but when it is uncertain whether there was any physician or not, then it becomes a question of fact, and should be submitted to the jury for their finding. (Gibson vs. Am. Mut. L. Ins. Co., 37 N. Y., 580.)

The question put to the witness was improper, and was rightly excluded. The phrase had no technical meaning, and was not a subject calling for an opinion from an expert.

It is also complained of, that the court ruled out as incompetent, the question to the same witness, as to whether or not the assured was at the time of making the application, in good health and free from any symptoms of disease. This question involved a mere conclusion and was objectionable. The facts should have been asked, in order that it might have been seen on what the inference or opinion was predicated. But, under any circumstances, the defendant was not injured by the ruling of the court. It was permitted to give fully and unrestrictedly all the evidence it had relating to the physical condition, symptoms of disease, and general health of the assured at the time the application was made. The declarations of the insured, as to his health, made subsequent to the issuing of the policy, were rightfully rejected. (Mulliner vs. Guardian Mut. L. Ins. Co., 1 N. Y. Sup. Ct. Rep., 448.)

There are no more questions in reference to evidence, deserving of notice, and it only remains to consider the instructions.

The following instructions asked by the defendant were refused: “The court instructs the jury that the plaintiff cannot recover, for the reason that it appears from the evidence, that Thomas J. Reid received medical attention from Dr. E. K. Roberts, prior to the date of the application for insurance. The court declares the law to be, that warranties must be exactly and literally true, and when the answers of the party insured, in an application for life insurance, are warranties and form a part of the contract of insurance, any mis-statement or concealment whatever, in regard to the matters and things therein inquired of, will render the policy null and void, even though such mis-statement or concealment, may be innocently or ignorantly made.”

The subjoined instructions, all asked by the defendant, were given: “If the jury believe, from the evidence, that Thos. J. Reid made the application for insurance admitted in evidence in this case, and that in said application said Reid was asked the following question, to-wit: “Name and residence of your own or family physician, or of the medical...