Royal Neighbors of Am. v. Wallace

• Decision Date: 19 March 1902
• Parties: ROYAL NEIGHBORS OF AMERICA v. WALLACE.
• Court: Nebraska Supreme Court

64 Neb. 330

89 N.W. 758

ROYAL NEIGHBORS OF AMERICA

v.WALLACE.

Supreme Court of Nebraska.

March 19, 1902.

Syllabus by the Court.

1. Where to hold that certain statements made in an application for insurance are warranties would defeat the obvious purpose of the parties to the contract, they will be held to be mere representations, even though it is stipulated in the policy that they are warranties. The intention of the parties is to be gathered from the entire contract, and not from any one clause contained therein.

2. Where representations are of such a character that their materiality is a matter of common knowledge, upon which reasonable minds could not differ, it is error to submit the question of their materiality to the jury.

Commissioners' opinion. Department No. 3. Error to district court, Dodge county; Grimison, Judge.

Action by Francis H. Wallace against the Royal Neighbors of America. Judgment for plaintiff. Defendant brings error. Reversed.J. G. Johnson, C. C. McNish, and J. F. Hess, for plaintiff in error.

Dolezal, Cook & Cook, for defendant in error.

ALBERT, C.

On the 10th day of September, 1897, the Royal Neighbors of America, a fraternal association, issued a benefit certificate to Ada Wallace, in which Francis H. Wallace was named as the beneficiary. On the 13th day of March, 1898, and while said certificate was in full force, unless void for the reasons hereinafter mentioned, the assured died. In due time, the beneficiary demanded payment of the amount named in the certificate, which was refused. Thereupon he commenced this action against said association to recover the amount due on the certificate. There was a trial to a jury, which resulted in a verdict for the plaintiff, and from a judgment rendered thereon the defendant prosecutes error to this court.

The certificate contains, among other things, the following provisions: “That the application and medical examination, which is made a part hereof, of said Ada Wallace for membership in the beneficiary department of this order, and which is on file in the office of the beneficiary recorder, and is hereby referred to and made a part of this contract for benefit, is true in all respects, and that the literal truth of such application, and each and every part thereof, shall be held to be a strict warranty, and to form the only basis of the liability of this order to such member, and to the beneficiary or beneficiaries, the same as if fully set forth in this benefit certificate. That, should said application, and each and every part thereof, not be literally true, then this benefit certificate shall, as to the member, the beneficiary or beneficiaries, be absolutely null and void.” At the close of her application, the assured signed a statement which, so far as is material at present, is as follows: “I have verified each of the foregoing answers and statements, * * * and declare and warrant that they are full, complete, and literally true. * * *” One question propounded to the assured in the application was, “Have you in the last seven years consulted any physician in regard to personal ailment? If so, give date, disease, and physician's name and address.” The assured answered, “Yes, Doctor Deveres, at Fremont.” The evidence shows that she had consulted at least one other physician during the specified period. The defendant insists that, such being the case, her answer was not “full and complete,” within the meaning of the clause just quoted. We think otherwise. The question is not whether she had consulted any physicians, and, if so, to give their names and addresses, but whether she had consulted any physician, and, if so, to give physician's name and address. The assured might well infer from the question that the association wanted to know the name of some physician she had consulted during that period, and that one such name would serve its purpose. The answer was full, complete, and, as appears from the evidence, literally true. The trial court committed no error in so instructing the jury. In addition to the foregoing, among the questions and answers contained in the application and medical...