
    Sadie E. Crosby, Appellant, v. Security Mutual Life Insurance Company, Respondent.
    
      Insurance — answers made warranties — their falsity, whether material or not, avoids the policy — when the question as to the falsity of answers in regard to attendance by a physician should be submitted to the jury.
    
    Where the answers contained in the application for a policy of life insurance are, by the terms of the policy, made warranties, the falsity of such answers will avoid the policy independent of whether the answers were material to the risk or not.
    In an action upon such a policy, it appeared that in the application for the policy the insured stated that it was about two years since he had last been attended by a physician or had consulted one, and that the name of such, physician was Dr. G. C. Prichard. The evidence tended to show that, within a year prior to the issuing of the policy, the insured suffered from a slight indisposition and that, without his knowledge or consent, his wife called a physician named Dr. Burt to attend him. So far as appeared the insured did not hold any conversation with Dr. Burt as to his ailment or the proper course of treatment. The physician asked no questions of the insured, but made some suggestions as to the remedies which should be applied and the course of diet which should be followed. It did not appear whether the medicine prescribed was taken or whether the suggestions as to diet were followed.
    
      Held, that it could not be said, as a matter of law, that the insured answered falsely in reference to his having been attended by a physician, but that, at most, the question of the falsity of the answers was one of fact which should have been submitted to the jury.
    Williams, J., dissented.
    Appeal by the plaintiff, Sadie E. Crosby, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ontario on the 29th day of July, 1902, upon the decision of the court, rendered after a trial at the Ontario Trial Term, dismissing the plaintiff’s complaint.
    
      The action was commenced on the 5th day of November, 1900, to recover the amount of a policy of insurance for $1,000 upon the life of Alfred D. Crosby, deceased, by the plaintiff, the widow of. the deceased, and the beneficiary named in the policy. -
    
      Henry E. Miller and Charles E. Opdyke, Jr., for the appellant.
    
      Fredric William Jenkins, for the respondent.
   McLennan, J. :

The case came on for trial at the above term, before the court and a jury. At the close of the evidence the following- took" place: u The Court: This is a pretty close case and I am inclined to think the points raised by counsel for the defendant are good. At the same time-1 would like to examine the question a little more carefully, and I make this suggestion: That counsel upon both sides consent that the case be taken from the jury, and be submitted to me, and in case the court reaches the conclusion that the case should be submitted to the jury, or that it is a question of fact for the jury, that the court may render a judgment in favor of the plaintiff for the amount due upon the policy, and if the court reaches the conclusion that there should be a direction of a verdict for the defendant, then it will direct judgment to be entered for the defendant. That defendant’s counsel shall have the same right to appeal, or move for a new trial under all the grounds stated in Sec. 999 of the 'Code. That in the event that the court renders judgment in favor ■of the defendant, that t-lie plaintiff shall have the -same right to move-for anew trial as if the court now directed a verdict for the defendant and against the plaintiff. [Counsel upon both sides consented to the suggestion of the court.] ”

Under this arrangement or stipulation of the parties it is evident that it'was understood that if there was any question of fact, the determination of which in plaintiff’s, favor would. entitle her to recover, a verdict should be directed in her favor. " The arrangement -or stipulation ought not to be construed to mean.that if there was a question of fact as to some issue the plaintiff should have judgment, if there was present another fact as to which there was no controversy, which, independent of all other -considerations, would prevent a recovery. We think the stipulation should be held-to mean that if the evidence disclosed a fact as to which there was no .dispute, which would, as matter of law, prevent a recovery, then the decision of the trial justice should be sustained, notwithstanding that there may have been other questions of fact which were controverted, and which might properly have been submitted to the jury.

Such holding makes it necessary to consider all the defenses urged by the defendant, and to ascertain whether or not any one of them, as matter of law, would defeat a recovery upon the policy in issue, The policy in suit was issued by the defendant on the 10th day of January, 1900, and it purported to insure the life of the deceased in the sum of $1,000. Under the terms of the policy there can be no question but that the application was made a part thereof, and that if any of the answers made to questions in such application were in fact untrue they constituted a breach of warranty, and rendered the policy void.

The questions, the answers to which it is claimed by the respondent constituted a breach of warranty, and, therefore, render the policy void, are as follows:

“ How long since were you last attended by a physician or consulted one ? About 2 years. For what difficulty or disease ? Dyspepsia. Give name and residence of such physician ? Dr. G. C. Prichard.”
Have you ever been affected with any of the following named diseases or conditions: * * *" Dyspepsia or Indigestion. Once.”
“Detail in brief * * * clinical history of any affection experienced by the subject (the insured) as per his answers foregoing. Affection, Dyspepsia; year, 1897; month, Feby.duration, 3 days; severity, moderate; result, full recovery;. medical attendant, Dr. G. C. Prichard.”

The question to be determined is whether or not the answers to the above questions, or any of them, were false, as matter of law. If it was a question of fact as to whether or not such answers were false, then under the stipulation to which attention has been called the plaintiff was entitled to recover. As bearing upon the truth of the answer to the first question, the evidence tends to show that in March, 1899, the deceased was suffering from a slight ailment; that the plaintiff, without the knowledge of the deceased, called Dr.Hurt to see him; that the deceased was then sitting up; that the doctor advised that the deceased take a dose of castor oil, and gave some advice as to his diet. It appears that the deceased did not want a doctor called; did not desire or want his advice; that the doctor was called without his knowledge or consent, and whether or not the deceased followed the. doctor’s advice or took any of the remedies prescribed by him does not appear. There certainly is no evidence to show that the deceased consulted with the doctor in regard to any ailment, or that such doctor was called with his-knowledge or consent. Under such circumstances we think a jury might have been justified in finding that the answer of the deceased was truthful when he, in effect, said that Dr.. Burt had not attended him as a physician, and that he had not consulted with him.

The other answers to the questions referred to are, in effect, that at the tipie in question the deceased was suffering from dyspepsia ; that no physician other than Dr. Prichard .had attended him; that he had not been affected with the disease called dyspepsia but once, and that such disease or the effects of it lasted only three days that it was moderate in severity; that there was a full recovery, and that the medical attendant was Dr. Prichard.

The answers of the insured in the application, so far as the evidence shows, were absolutely true, except for the fact, as appears by the evidence of the plaintiff, that she, without the knowledge of the deceased, called Dr. Burt to see him when he was. suffering-from some slight ailment, -and that while thus suffering, although sitting up, Dr. Burt, without asking any questions of the deceased, prescribed for him as to diet, etc.

We appreciate the force of- the rule which holds that the statements made in an application for a policy of insurance which are-made a part thereof by the terms of the policy are to he regarded as warranties, and that if the same are untrue it avoids the policy, notwithstanding such answers may have been immaterial to the risk.. Giving full force and effect to such rule and to such interpretation, we think it ought not to' be held that the answers made to the questions propounded to the deceased in the application in- this case were false, as matter of law, and thus avoided the policy of insurance.

The facts, stated most favorably to- the defendant, indicate that the deceased, within two years prior to his application for insurance, had some slight illness or indisposition. Without his knowledge hi& wife called a physician. So far as appears the deceased made no inquiry or suggestions as to his ailment or the proper course of treatment, hut the physician called made some suggestions as to the remedies which should be applied and the course of diet which should be followed. Whether or not the medicine was taken or whether the suggestions •. as to diet were followed, does not appear. At all events, on the morning following the deceased resumed his ordinary occupation, apparently was in good health and strength and continued so to be when the application for insurance was made and until shortly before his death.

We think, under all the circumstances disclosed by the evidence, it cannot be held, as matter of law, that the answers contained in the application were false and, therefore, avoided the policy, but that at most they were questions of fact for the jury, and that under the stipulation referred to the plaintiff was entitled to assume that such questions of fact would be decided favorably to her.

The law applicable to the questions involved in this case is well settled. The application, by the terms of the policy, was made a part of it, and the answers contained in the application were made warranties, and of course it is well settled that if such answers were false their falsity avoided the policy, independent of the question whether they were material or not, so that the only question presented is whether or not the answers to the questions contained in the application were, as matter of law, false.

Such questions and such answers must be interpreted reasonably. Applying the rule of reasonable interpretation we think it cannot be said that the answers made by the deceased to the questions propounded in the application were false as matter of law.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Williams, J., dissenting.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  