Home Life Insurance v. Sibert

Harrison, J., delivered the opinion of the court. It is not necessary to encumber this opinion with comment in detail upon the twenty-four bills of exceptions taken in the court below. In the main they were not relied on in the argument here, are not well taken, and the action of the court must be regarded as affirmed in respect to the questions thereby raised, except in the particulars hereinafter mentioned. Bills of exceptions Hos. 21 and 23 relate to the refusal of the court to give seven instructions asked for by the defendant, and giving in lieu thereof four instructions of its own. The instructions given were sufficient except in one particular, and in that particular they are not remedied by the instructions [408] refused, hence there was no error in refusing the instructions asked for by the defendant. Instruction Ho. 2, given by the court, lays down the proposition that “ To constitute an answer not full or complete F. E. Sibert must have suppressed some fact which the question reasonably called for, and which fact was material to the risk.” This is not sound. The contract of insurance under consideration expressly declares that all the answers contained in the application for insurance, together with those contained in the declaration to the company’s medical examiner, are warranted to be true, full, and complete, whether written by the insured or not, and are offered to the company in consideration of the contract. The answers being warranties, it was a matter of no consequence whether they were material to the risk or not. A warranty is a stipulation on the literal truth or fulfilment of which the validity of the entire contract depends. It is in the nature of a condition precedent, and must be strictly complied with, whether material or not. Fire Ins. Co. v. West, 76 Va. 575; Ins. Co. v. Morgan, 90 Va. 290. This error, however, cannot now be availed of by the plaintiff in error, for the reason that in its sixth instruction, which was refused, the court was asked to instruct the jury to the effect now pointed out as erroneous. A party cannot invite the court to commit error by asking for an erroneous instruction, and be permitted afterwards to have the verdict set aside for the error into which the court has been thus misled. Kimball Fink v. Friend, 95 Va. 125. The twenty-fourth bill of exception is to the action of the court in refusing to set aside the verdict of the jury and grant a new trial upon the ground that it was contrary to the law and the evidence. It is difficult to perceive how the jury could have reached the conclusion they did upon the evidence in this case. The sole issue in the case was whether or not the answers contained in the application for insurance, and in the declaration to the medical examiner, were true, full, and complete. If true, the plaintiff was entitled to recover. If [409] not true, the verdict should have been for the defendant. Among other questions in the declaration to the company’s medical examiner, the insured was asked who his family physician was, and when and for what his services had been sought. He answered that Dr. D. L. Shaver was his family physician, and that his services had Been sought for nothing. Dr. Shaver testifies that prior to September 14, 1895, the date of the policy, he was consulted by the insured in regard to his health, who stated that he had been and was still drinking too much, and was asked by the insured if he could not do something to help him. The testimony of this witness shows that these conversations were numerous, beginning as far back as , three years before the date of the policy, and continuing from time to time until the insured died, in January, 1896, four months after the policy was taken out. This witness further testifies that in .¡November, 1894, he treated the insured for stomach derangements, neuralgia, and diseases resulting from drink; that he found him in bad condition from excessive use of alcoholic liquor, and told him that a continuation of the habit for two years would end his life. Witness further says that insured spoke to him about treating him for drink four, six, or more times within the twelve months immediately preceding the date of the policy. The further question was asked: “ Have you ever had, or been subject to, neuralgia?” The answer to this question was, “ Ho.” The evidence of the family physician was that he had treated insured for neuralgia prior to the application for the policy. The further question was asked: “ What other physician have you consulted ? ” The answer to this question was, “Hone.” The evidence shows that in June, 1895, and in August, 1895, about one month before the policy was applied for, the insured consulted Dr. Graves, and asked if he could relieve him from alcoholism saying that he was annoyed all the time with neuralgia caused by drink. The further question was asked : “ Have you ever had special treatment for the alcoholic habit ? ” The answer [410] to this question was, “Ho.” The evidence of the family physician and Dr. Graves both show that they had each, at different times, prior to the date of the policy, treated the insured for the alcoholic habit, and the evidence of Dr. Campbell shows that, about the time the policy was taken out, or shortly thereafter, the insured applied to him for the “ Keely Cure” treatment. Other instances might be given of untrue answers to the questions asked, but it is unnecessary to multiply them, for if any one of said answers is shown to have been untrue, there can be no recovery under the terms of the warranty entered into by the insured. Recognizing and giving full force to the law requiring that the case shall be heard by this court as upon a demurrer to the evidence, we are of opinion that the motion to set aside the verdict should have prevailed. There is no evidence in the record in conflict with that which shows the answers to be untrue. There is much evidence offered by the defendant in ¡error tending to show that the insured was a temperate man, and if that were the issue the evidence might be regarded as conflicting. The issue, however, was not whether the insured was a sober man, but whether he had fulfilled the warranty that his answers should be true, full, and complete. Upon this issue the evidence was clear and uncontradieted, and the answers made were not true. For these reasons the judgment of the Circuit Court must be reversed, the verdict of the jury set aside, and the cause remanded for a new trial. Reversed.