FIRST NAT. BENEFIT SOC. v. FISKE, 55 Ariz. 299 (1940)

101 P.2d 208

FIRST NATIONAL BENEFIT SOCIETY, a Corporation, Appellant, v. EMILY LOUISE FISKE, an Infant, by Her Guardian ad Litem, JAMES J. CARETTO, Appellee.

Civil No. 4159.Supreme Court of Arizona.
Filed April 8, 1940.

APPEAL AND ERROR. — An instruction that no false statements or misrepresentations of facts in application would render life policy voidable unless such facts were material to the risk assumed by the insurer, unless insurer relied upon those facts in accepting the risk, and that in order for facts to be material they must be such that if known to insurer it would not have issued the policy, was

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erroneous and constituted reversible error, in view of evidence tending to show that insured failed to disclose to insurer that his application for insurance in another company had been rejected.

False answer in application for life insurance to question regarding previous rejection, see note in 120 A.L.R.
1425. See, also, 14 Cal. Jur. 502; 14 R.C.L. 1080 (5 Perm.Supp., p. 3744).

APPEAL from a judgment of the Superior Court of the County of Maricopa. M.T. Phelps, Judge. Judgment reversed and case remanded for a new trial.

Mr. Robert R. Weaver, for Appellant.

Messrs. Ellinwood Ross, Mr. Joseph S. Jenckes, Jr., and Mr. Everett M. Ross, for Appellee.

LOCKWOOD, J.

This is a companion case to No. 4158, First National Benefit Society, a Corporation, Appellant, v. Lucy Newcomer Fiske, Appellee, ante, p. 290, 101 P.2d 205. The two cases were consolidated for the purpose of trial. The principle difference is that there was undoubtedly evidence admitted before the jury tending to show that the insured, Charles E. Fiske, failed to disclose to the insurer that an application of his for insurance in another company, made some fifteen days before he applied for the certificate involved herein, had been rejected. This evidence makes the objectionable instruction set forth in the opinion in No. 4158 reversible error in the present case.

The judgment is reversed and the case remanded for a new trial.

ROSS, C.J., and McALISTER, J., concur.

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