National Americans v. Bitch

Hart, J., (after stating the facts). (1) The benefit certificate expressly provided that the questions and answers made by the applicant to the medical examiner should constitute a part of the contract of insurance and that such questions and answers were made warranties; and it was provided that if any of the answers or statements were not true the policy should be void. This constituted a valid agreement and a material false representation by the insured would render the policy void. Brotherhood of American Yeomen v. Fordham, 120 Ark. 605. (2-3) It is first contended i that the insured made a false representation which constituted a breach of warranty in relation to her consultations with physicians. This contention is based upon the following question: “Have you, within the past five yéars, consulted or 'been under the care of any physician or physicians; if so, give name of each and particulars as to ailments?” The insured answered, “Dr. J. C. Reynolds, malarial fever, in September, 1911.” The medical examination was made on May 8, 1912. The testimony of Doctor Rush shows that the examination made by him was in July, 1907, when she made application for a pension as the widow of a Confederate soldier and that she was at that time suffering from chronic rheumatism. Her examination iby Doctor Rush did not constitute a consultation with a physician o,r .a condition of being “under the care of” a physician within the meaning of the question just referred to. The language of a question in an application for insurance is to be read in its plain, ordinary and natural signification. At the time the insured applied for her pension she was not treated by Doctor Rush and did not apply to him for treatment as a physician. 'She was not in any sense under his care as a physician and did not consult him with a view of having him treat her for any ailment that she might have. (4) 'It may be stated here that it was competent for Doctor Rush to refresh his memory by reading the certificate he made when he examined the insured at the time she filed her application for a pension: St. Louis S. W. Ry. Co. v. White Sewing Machine Co., 78 Ark. 1, 8 Am. & Eng. Ann. Cas. 208, and case note. (5) It is next urged that the insured made false representations which constituted a breach of warranty in regard ito her answers as to whether she had any ailment, mental or physical, at the time she made the application, or concerning the general character of her mental and physical health during the past three years. The word “ailment” as used in these questions means something which substantially impairs the health of the applicant, materially weakens the vigor of his constitution, or seriously deranges his vital functions. Des Moines Life Ins. Co. v. Clay, 89 Ark. 230; Franklin Life Ins. Co. v. Gallighan, 71 Ark. 295; Providence Life Assur. Society v. Reutlinger, 58 Ark. 528. (6) According to the testimony of Doctor Rush the insured had chronic rheumatism at the time he examined her when she applied for a pénsion, hut he said that she did not have any heart trouble at that time and that he could not say that her condition in respect to the rheumatism was permanent — that she might grow better. Under these circumstances it can not be said as a matter of law .that she had any serious ailment .at the time she made her application for insurance and answered the questions propounded to her by the medical examiner. The court submitted to the jury the truth or falsity of her answers in this xeepect under proper instructions and the jury, by its verdict, found against the contention of the defendant insurance association, and, there being evidence of a • substantial character to support the finding of the jury, its verdict must be upheld by us. We find no prejudicial error in the record and the judgment will be affirmed.