{ "id": 1505501, "name": "Mutual Reserve Fund Life Association v. Cotter", "name_abbreviation": "Mutual Reserve Fund Life Ass'n v. Cotter", "decision_date": "1904-10-22", "docket_number": "", "first_page": "620", "last_page": "623", "citations": [ { "type": "official", "cite": "72 Ark. 620" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "71 Ark. 295", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507822 ], "opinion_index": -1, "case_paths": [ "/ark/71/0295-01" ] }, { "cite": "28 S. C. 431", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 4388870 ], "opinion_index": -1, "case_paths": [ "/sc/28/0431-01" ] }, { "cite": "102 Ga. 143", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 587495 ], "opinion_index": -1, "case_paths": [ "/ga/102/0143-01" ] }, { "cite": "2 Dill, 160", "category": "reporters:federal", "reporter": "Dill.", "opinion_index": -1 }, { "cite": "92 U. S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8782 ], "opinion_index": -1, "case_paths": [ "/us/92/0377-01" ] }, { "cite": "89 Md. 624", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2177219 ], "opinion_index": -1, "case_paths": [ "/md/89/0624-01" ] }, { "cite": "89 Me. 266", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 624852 ], "opinion_index": -1, "case_paths": [ "/me/89/0266-01" ] }, { "cite": "91 Pa. St. 520", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 487487 ], "opinion_index": -1, "case_paths": [ "/pa/91/0520-01" ] }, { "cite": "106 Pa. St 28", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 455555 ], "opinion_index": -1, "case_paths": [ "/pa/106/0028-01" ] }, { "cite": "14 Vroom, 300", "category": "reporters:state", "reporter": "Vroom", "opinion_index": -1 }, { "cite": "56 Miss. 180", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 11260209 ], "opinion_index": -1, "case_paths": [ "/miss/56/0180-01" ] }, { "cite": "21 Oh. St. 176", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 885718 ], "opinion_index": -1, "case_paths": [ "/ohio-st/21/0176-01" ] }, { "cite": "6 Gray, 185", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 1994638 ], "opinion_index": -1, "case_paths": [ "/mass/72/0185-01" ] }, { "cite": "105 U. S. 355", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3495855 ], "opinion_index": -1, "case_paths": [ "/us/105/0355-01" ] }, { "cite": "122 U. S. 501", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3521875 ], "opinion_index": -1, "case_paths": [ "/us/122/0501-01" ] }, { "cite": "30 la. 119", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2279943 ], "opinion_index": -1, "case_paths": [ "/iowa/30/0111-01" ] }, { "cite": "97 Mich. 513", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1529233 ], "opinion_index": -1, "case_paths": [ "/mich/97/0513-01" ] }, { "cite": "81 N. W. 1073", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "97 Tenn. 291", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8536716 ], "opinion_index": -1, "case_paths": [ "/tenn/97/0291-01" ] }, { "cite": "51 Atl. 689", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "opinion_index": -1 }, { "cite": "70 N. Y. 605", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2166396 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ny/70/0605-01" ] }, { "cite": "60 S. W. 576", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "28 S. W. 837", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "64 Minn. 495", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1655420 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/minn/64/0495-01" ] }, { "cite": "67 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152581 ], "opinion_index": -1, "case_paths": [ "/ark/67/0553-01" ] }, { "cite": "61 Am. Rep. 752", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": -1 }, { "cite": "36 Atl. 9", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "100 Mass. 472", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2141908 ], "opinion_index": -1, "case_paths": [ "/mass/100/0472-01" ] }, { "cite": "52 Ark. 517", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913365 ], "opinion_index": -1, "case_paths": [ "/ark/52/0517-01" ] }, { "cite": "58 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329192 ], "opinion_index": -1, "case_paths": [ "/ark/58/0125-01" ] }, { "cite": "37 Ark. 580", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870922 ], "opinion_index": -1, "case_paths": [ "/ark/37/0580-01" ] }, { "cite": "47 S. W. 614", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "20 Fed. 482", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6734426 ], "opinion_index": -1, "case_paths": [ "/f/20/0482-01" ] }, { "cite": "77 N. W. 690", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 2, "opinion_index": -1 }, { "cite": "58 Ark. 528", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329148 ], "opinion_index": -1, "case_paths": [ "/ark/58/0528-01" ] }, { "cite": "65 Ark. 581", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609248 ], "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/ark/65/0581-01" ] }, { "cite": "58 Ark. 528", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329148 ], "opinion_index": 0, "case_paths": [ "/ark/58/0528-01" ] } ], "analysis": { "cardinality": 521, "char_count": 7135, "ocr_confidence": 0.7, "pagerank": { "raw": 1.886909352568334e-07, "percentile": 0.7284555972182162 }, "sha256": "0e34d51112edfebb04f2c287f952cffec3ddb2d9b52145c6779849004d85cde7", "simhash": "1:3546357b7a858a4c", "word_count": 1257 }, "last_updated": "2023-07-14T14:55:00.960408+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mutual Reserve Fund Life Association v. Cotter." ], "opinions": [ { "text": "Battle, J.\nThis action was brought by W. M. Kennedy, as administrator of John Riffey, deceased, and by Arthur Cotter and W. D.Newburn, against Mutual Reserve Fund Fife Association and United States Fidelity & Guaranty Company upon a policy of $1,000 issued by the Reserve Fund Fife Association on the life of John Riffey, for the benefit of Arthur Cotter and W. D. Newburn, and bearing date the 30th of June, 1898; Riffey having died. The plaintiffs recovered judgment, and the defendants appealed.\nThe policy was issued in pursuance of an application by John Riffey, the insured, in the month of June, 1898, for the benefit of the appellees, Cotter and -Newburn, in which it was expressly agreed that the answers and statements contained in parts I and II thereof, by whomsoever written, were warranted to be full, .complete and true, and that if any of the answers or statements made are not full, complete and true, or if any condition or agreement shall not be fulfilled as required therein or by the policy, then the policy issued thereon shall be null and void. These stipulations, by the terms thereof and by the provisions of the policy, became a part of the policy. In the application were the following questions and answers: \u201c(Q.) How long since you consulted or were attended by a physician? (A.) September, *897. (Q.) State name and address of such physician? (A.) Name, W. B. Snipes; address, Spring Creek. (Q.) For what disease or ailment? (A.) Malarial fever.\u201d\nThe facts were: he was sick in September, 1897, at Spring Creek; had a slight attack of fever; was in. bed one day; and Dr. Snipes attended him two days. In October, 1897, about two weeks, or longer, thereafter, he was very sick at Marianna; suffered intense pain; had two physicians, Drs. Drake and Freeman, attending him; and his wife and daughter were called to his bedside. Flis physicians visited him as often as twice a day, and made as many as thirty or forty professional visits. He was sick a month or longer. He failed to make known to the Dife Association the sickness in October.\nIn Mutual Reserve Fund Life Association v. Farmer, 65 Ark. 581, 595, cited by appellees, the question asked the insured was, \u201chas the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity, or ever had any disease, weakness of the head, throat, heart, lungs, stomach, kidneys, bladder or any disease or infirmity whatever?\u201d It \u201cwas answered by the examining physician (whose answers the applicant made his own) by stating, in effect, that applicant had had none of the diseases mentioned within ten years.\u201d The facts were that the insured (the applicant) in that case was found within the ten years, about one year or more before his death, in an insensible condition. The room in which he was at the time was filled with the odor of chloroform. But he was not in a dangerous condition, and soon recovered, tie did not need the services of a physician.' This court held that these facts did not establish a breach of the insured\u2019s warranty of the truth of his answer to the question. In that case the sickness was slight, and of very short duration.\nIn the case at bar the sickness in October, 1897, was serious and of long duration. It demanded the constant attention of physicians, and the attendance of the wife and daughter. It was no slight indisposition or trivial or temporary ailment. It might well have demanded and received the investigation and consideration of the Life Association before issuing the policy sued on, for the purpose of ascertaining its effect on the insurable character of the life proposed. The insured, Riffey, evidently thought that the question called for the disclosure of his sickness in September, 1897. We see no reason for withholding information as to the more serious sickness in the October following. The Life Association was entitled to the information, to the end that it might make any investigation it might desire before issuing the policy. Providence Life Assurance Society v. Reutlinger, 58 Ark. 528. The concealment of it was calculated to deceive the insurer. The answers to the questions propounded were not full, complete, and true, and, according to the stipulations of the parties, there was a breach of warranty, and the policy sued on is void on account thereof.\nThere are other questions in the case that are not mentioned in this opinion, and for reasons not necessary to state are not decided.\nReverse and remand for a new trial.", "type": "majority", "author": "Battle, J." } ], "attorneys": [ "Rose, Hemingway & Rose, and Norton & Prewitt, for appellant.", "McCulloch & McCidloch, for appellees." ], "corrections": "", "head_matter": "Mutual Reserve Fund Life Association v. Cotter.\nOpinion delivered October 22, 1904.\nLife insurance policy \u2014 breach oe warranty. \u2014 Where a policy of life insurance warranted that the insured\u2019s answers and statements in his application were full, complete and true, and he failed to make known, in response to a question, the fact that he had had a serious illness, and to mention the names of the attending physicians, the concealment \u25a0 was calculated to deceive the insurer, and avoided the \u25a0 policy.\nAppeal from Cross Circuit Court\nFerix G. Tayror, Judge.\nReversed.\nRose, Hemingway & Rose, and Norton & Prewitt, for appellant.\nThe policy is avoided for breach of the warranties in application. 58 Ark. 528; 77 N. W. 690; 20 Fed. 482; 47 S. W. 614. The court erred in instructing the jury that appellant must make out its defense \u201cby a clear preponderance of all the testimony.\u201d 37 Ark. 580; 58 Ark. 125; 52 Ark. 517; 53 Id. 381. The burden of proving compliance with express warranties is on the warrantor.' 100 Mass. 472; 36 Atl. 9; 61 Am. Rep. 752; 1 Bidd, Ins. \u00a7 557.\nMcCulloch & McCidloch, for appellees.\nPolicies of insurance are construed most strongly against the insurer. 67 Ark. 553. The question as to whether deceased drank intoxicating liquors otherwise than in sickness was one of fact for the jury, and the court did not err in refusing the instruction prayed upon that point. 64 Minn. 495; 28 S. W. 837; 60 S. W. 576; 70 N. Y. 605; Ell. Ins. \u00a7 374; May. Ins. \u00a7 299; Beach, Ins. \u00a7 438; Cook, Ins. \u00a7 36; 19 Am. & Eng. Enc. Faw, 67-8; 51 Atl. 689; 2 Pars. Cont. 472; 145 111. 308; 6 Canada, Sup. Ct. 695; 97 Tenn. 291; 77 N. W. 690; 81 N. W. 1073. The term \u201cgood health,\u201d as used in the application, means simply that applicant has no grave and serious disease, and does not refer to mere temporary indisposition. 97 Mich. 513; 30 la. 119; 122 U. S. 501; 112. U. S. 250; 105 U. S. 355. When, upon the face of the application, a question appears to be not answered at all or improperly answered, and the insurer issues a policy without further inquiry, it waives the want of or imperfection in the answer, and renders the omission immaterial. 6 Gray, 185; 21 Oh. St. 176; 56 Miss. 180; 14 Vroom, 300; 106 Pa. St 28; 91 Pa. St. 520; 89 Me. 266; 51 Atl. 689; May, Ins. \u00a7 166. The burden was on appellant to prove breach of- the warranties. 89 Md. 624; 92 U. S. 377; 2 Dill, 160; 70 N. Y. 605; 64 Minn. 495; 102 Ga. 143; no Cal. 258; 89 111. 203; 28 S. C. 431; Joyce, Ins. \u00a7 3790; Beach, Ins. \u00a7 1315. That there was no breach of warranties or misrepresentation as to health sufficient to avoid the policy, see also 71 Ark. 295." }, "file_name": "0620-01", "first_page_order": 638, "last_page_order": 641 }