Supreme Council of Royal Arcanum v. Lund

Bailey, J. In this case the plaintiff seeks to recover upon a contract in the nature of a policy of insurance upon the life of Charles A. Avery, and the defendant sets up in defense and has introduced evidence tending to prove certain false representations in the application upon which said contract is based. The defendant also sets up a breach of warranty, the application being, by the express agreement of the parties, incorporated into and made a part of said contract. As we view the case it will not be necessary for us to determine whether the statements of the application should be treated as representations or warranties, since, if they are shown to be false, their effect upon the plaintiff’s right to recover is the same in the one case as in the other. The court, at the instance of the plaintiff, gave to the jury the following instruction: “ The jury are instructed that if they believe from the evidence the plaintiff has made out her case, as alleged in her declaration, they must find for the plaintiff.” All the plaintiff needed to do to make out her case, as she lias alleged it, was to prove the material averments of her declaration. The instruction, therefore, entirely ignored all affirmative defenses which the evidence on the other side tended to establish. The plaintiff may have made out her case as alleged in her declaration, and yet such case may have been met and overthrown, not by disproving the declaration, but by establishing facts aliunde, the effect of which was to defeat the plaintiff’s right to recover. If the defense had consisted of a mere traverse of the averments of the declaration, the instruction might not have been misleading, but as applied to the case where the defendant sets up and relies upon an affirmative defense, in the nature of a confession and avoidance, it can not be sustained. There the plaintiff can succeed only where the evidence upon all the issues preponderates in her favor. But we are of the opinion that, upon thé evidence, the verdict should have been for the defendant. Avery, the insured, by his application for membership in the Boyal Arcanum, represented and, as we think, warranted that he was then in good health; that he had never had any severe illness, and especially that he had never had fits, convulsions or loss of consciousness, and that there was nothing in his physical condition or personal history or habits tending to shorten his life. That these representations were untrue is too plain to admit of argument. The evidence is uncontradicted that about ten years before he had a very severe and dangerous illness, resulting, there is some reason to suppose, from an injury received in his youth. But this is not all. The evidence very strongly tends to show that, as the result of said illness, he was ever afterward laboring under a tendency to attacks of illness of a very serious and dangerous character, and, in fact, had frequent attacks of such illness, said illness usually, if not uniforinly, taking the form of fits, convulsions and loss of consciousness, and that he was perfectly well aware of his diseased condition and his constant liability to such attacks. At the time he made'his application he had but jnst recovered from a severe illness of the character above described, and it seems probable that his death, which took place about six months afterward, resulted from another and similar attack. But it is urged that because Avery stated to the defendant’s examining physician at the time his application was made out,' that he had an attack of cerebro-spinal meningitis ten or twelve years before, the defendant can not now take advantage of the statements in the application, either as constituting false representations or a warranty. It may be admitted that if Avery had fully disclosed to said physician at the time all the facts in relation to his health and physical condition, both past and present, the defendant would have been precluded from taking advantage of the untrue statements embodied in the written application. The evidence, however, clearly shows that he did not do so. All the disclosure made was in reference to his illness ten or twelve years before, but that was coupled ' with the statement that he had entirely recovered, and that he was then in as good health as he had ever had in his life. His subsequent predisposition to illness and his repeated attacks, and especially the one from which he had then just recovered, were carefully concealed. The facts thus misrepresented and concealed were those which, above all, it was important for the insurer to know. An illness suffered many years before, and from which the applicant had entirely recovered, was doubtless regarded as of very little consequence? hut it was very material that the insurer should be informed that said illness had produced and left strong and irradieable tendencies to further attacks of illness which were liable at any time to prove fatal. The most important and material facts were thus concealed or misrepresented, and we see no legal impediment in the way of the defendant’s setting up such misrepresentations or concealments as a defense. We have not taken the pains to examine critically the special plea filed on behalf of defendant, as the defenses set up are all available under the general issue. Said defenses seem to us to be established by evidence which is substantially uncontradicted, and the verdict should, -therefore, have been for the defendant. The judgment will be reversed and the cause remanded. Reversed and remanded.