APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded for new trial.
Mr. Robert R. Weaver, for Appellant.
Messrs. Ellinwood & Ross, Mr. Joseph S. Jenckes, Jr., and Mr. Everett M. Ross, for Appellee.
[55 Ariz. 292] LOCKWOOD, J.
Lucy Newcomer Fiske hereinafter called plaintiff, brought suit against First National Benefit Society, a corporation, hereinafter called defendant, to recover upon three policies of insurance issued by defendant upon the life of Charles Edgar Fiske, the husband of plaintiff, hereinafter called the insured. The case was tried to the court sitting with a jury, and a verdict was returned in favor of plaintiff for the full amount sued for, whereupon this appeal was taken.
There are a number of assignments of error which we shall discuss in the manner and to the extent which seems necessary. Defendant admits the issuance of the policies, but claims they were voidable at its
option because the insured in his application falsely and fraudulently concealed from defendant certain material facts, and the case was tried primarily upon this issue.
The evidence shows without dispute that on March 18, 1936, insured made written applications to defendant for three insurance policies. In these applications there are a number of questions and answers, among them being the following:
"do you carry Life Insurance? Yes.
"Were you ever rejected? Yes.
"If so, cause: Slight heart murmur.
"By what Company? Sun Life Canada."
"... I warrant answers to the above questions and the statements contained herein are true and correct and I do hereby agree that any false statement, misrepresentation or concealment of any material fact in this application shall limit the amount payable hereunder [55 Ariz. 293] to the total amount paid by the Insured on this ...