Stewart v. Equitable Mut. Life Ass'n of Waterloo

• Decision Date: 05 February 1900
• Citation: 81 N.W. 782,110 Iowa 528
• Parties: STEWART ET AL. v. EQUITABLE MUT. LIFE ASS'N OF WATERLOO.
• Court: Iowa Supreme Court

110 Iowa 528

81 N.W. 782

STEWART ET AL.

v.EQUITABLE MUT. LIFE ASS'N OF WATERLOO.

Supreme Court of Iowa.

Feb. 5, 1900.

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

Action on life insurance policy. Defense, that it was procured by fraud, and was void because of false answers to certain questions warranted to be true. The defendant appeals from judgment on verdict for the plaintiff. Reversed.Boies & Boies, for appellant.

C. H. E. Boardman and Alford & Gates, for appellee.

LADD, J.

The errors assigned in rulings on the admission of evidence were not mentioned in the motion for a new trial. Nor was this essential in order to have them reviewed. See section 4106, Code. Had a part of these been so pressed upon the attention of the trial court, it is possible this might be construed as waiving others. But, where such motion deals with independent questions, such as errors of the jury in returning verdict, or of the court in giving or refusing instructions and in failing to direct verdict, as in this case, there is no ground for regarding exceptions to such rulings as abandoned. The purpose of a motion for a new trial is to bring before the court errors which, without it, would not be called to its attention. Brown v. Rose, 55 Iowa, 735, 7 N. W. 133;Hooker v. Chittenden, 106 Iowa, 323, 76 N. W. 706; section 4105, Code. See Ankrum v. City of Marshalltown (Iowa) 75 N. W. 360. Surely, filing a motion of this kind does not waive errors to which the court's attention has been previously directed and exceptions saved. Having been once pressed for correction, the duty of the litigant has been discharged, and he is under no obligation to demand reconsideration. This is the reason for the statute in authorizing review of such errors in the absence of any motion. True, some of those alleged in the motion might have been passed on without an application for new trial, but their mention there ought not to preclude the consideration of others having no connection with them.

2. Extended extracts from medical works defining and giving the probable cause, progress, and symptoms of diabetes were received in evidence over the objection of the defendant. These were from the Practice of Medicine, by Wood & Fitz, and the Science and Practice of Medicine, by Palmer. Under the ruling in the recent case of Bixby v. Bridge Co., 105 Iowa, 293, 75 N. W. 182, 43 L. R. A. 533, this was error.

3. In the application the assured was asked and answered certain questions, which may be set out: “Q. How long since you have consulted a physician? A. Five years. Q. For what disease? A. Cold. Q. Name and postoffice address of physician consulted. A. Dr. Imrie, Detroit, Mich.” By its terms this application became a part of the contract of insurance, which was to be null and void if any of the answers were untrue. Clearly, this amounted to a warranty, and it is not material that some of the answers may be unimportant. The parties, having agreed to their materiality, set that inquiry at rest. Cobb v. Association (Mass.) 26 N. E. 231, 10 L. R. A. 666;Insurance Co. v. McTague, 49 N. J. Law, 587, 9 Atl. 766;Insurance Co. v. France, 91 U. S. 510, 23 L. Ed. 401;Powers v. Association, 50 Vt. 630;Cushman v. Insurance Co., 63 N. Y. 404. See Hygum v. Insurance Co., 11 Iowa, 25; Stout v. Insurance Co., 12 Iowa, 385; Miller v. Insurance Co., 31 Iowa, 227. The evidence showed that the deceased had consulted physicians during the year previous, understood the malady (diabetes) under which he was suffering, and its probable result. Did this establish the falsity of his answer? That must depend on the character of the question, what would one in the situation of the deceased understand to be desired? The inquiry was not how long since he last or first consulted a physician, but simply how long since he did so. If he had been under a doctor's care some time, he would naturally infer that the information desired was when he was first so attended. Thus, one in the habit of using tobacco or intoxicating liquors, when asked how long since you smoked or drank, would inevitably give the date of beginning. The same would be true in answer concerning any practice or custom. On the other hand, one without such attendance for some time would infer the question to call for the last time a doctor had been consulted. In Moore v. Insurance Co., 3 Ont. App. 230, it was held the assured, because of his situation, was authorized to construe a similar question to relate to the first time he was attended...