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Woodmen of World Life Ins. Society v. Velasquez

Supreme Court of Arizona

July 15, 1943

WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, a corporation, Appellant,
v.
N. E. VELASQUEZ, FRANCISCA VELASQUEZ, and GENEVIEVE VELASQUEZ, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Mr. Thomas W. Nealon, for Appellant.

Messrs. Jennings & Salmon, and Mr. Ozell M. Trask, for Appellees.

OPINION

[60 Ariz. 458] STANFORD, J.

This action was brought in the Superior Court of Maricopa County to recover the sum of $1,000 and interest on an insurance policy issued by the appellant to the insured, Herberto M. Velasquez. The policy was written on November 22, 1939, and delivered and accepted by the insured on December 11, 1939. Insured died from active tuberculosis December 24, 1940. Appellant rejected the claim before the action was brought on the grounds that false warranties and material misrepresentations were made in the application for the policy; that the applicant was not in good health when his policy was delivered to him; that the applicant warranted in writing that he was in good health at the time. The case was tried before a jury and the verdict of the jury [60 Ariz. 459] was unanimous in favor of the plaintiffs for the sum of $900, allowances having been made for an advancement to appellees of $100 in the matter of defraying funeral expenses.

The issues in this case are: 1. Is the judgment sustained by competent evidence? 2. Did the Court err in refusing to admit in evidence the records of the State Welfare Sanitarium?

The record in the case shows that the insured was, at the time he made his application, twenty-four years of age, and, for several months before the issuance of the insurance policy, he was employed as a musician on Radio Station KOY in Phoenix,

Page 767

playing a cornet or saxophone on the Spanish Hour between six and seven o'clock every morning. His principal work, however, was cleaning and pressing, and he worked every day for eight hours in that business, and very often played for dances. Nothing unusual occurred in his life in the way of illness until about the 25th day of December, 1939, when he apparently had a very had cold and remained in his bed for several days. On January 6, 1940, he went to the office of Dr. Howell Randolph, in Phoenix, for medical attention. He was not examined at the time he applied for insurance, and his medical history commences with his visit to Dr. Randolph on January 6, 1940.

We will keep in mind that no exceptions were taken to the instructions to the jury, and that the burden was on appellant to prove bad health at the date of delivery of the policy, December 11, 1939. Also, that insured did not seek the insurance policy, but was solicited to have it written by an agent of the appellant. When the application was made, November 22, 1939, insured gave his wife as the beneficiary, but on November 14, 1940, he changed beneficiaries to include his mother.

[60 Ariz. 460] At the time the insured became stricken, December 25, 1939, more than a month after the application for insurance was made, insured was still working at his trade at a cleaning and pressing establishment in Phoenix, and worked for a full eight hour shift each day. He had been continuously playing, since his application, the cornet or saxophone on the Spanish Hour between six and eleven o'clock every morning at the Radio Station KOY; that he had evidently not ceased to play for dances in the evening where he used a saxophone or trombone. No evidence was introduced to the effect that he showed signs of ill health during the time between the making of the application and the 25th day of December, 1939. Dr. Howell Randolph, who, by the evidence showed himself to be eminently qualified, testified as follows:

"Q. Now what is your opinion, Doctor, as to the length of time this tubercular condition had existed, some tubercular condition had existed? A. I think I have already stated the answer to the question in giving a statement regarding the usual length of time which tuberculosis does exist before it becomes evident clinically, and as far as this particular case is concerned, I don't see how I can, as I said before, place it definitely. I would presume that it probably existed more than a month in active, growing tuberculosis, more than a month, probably several months before the film and the fluoroscope was made."

On cross examination he testified as follows:

"Q. Based on the character of work this man had been doing, playing a saxaphone and singing and pressing work in the day time, the fact that he contracted about December 24, 1939, a severe cold which put him to bed, and as a result of which he immediately started coughing, giving that history of the case, which you are assuming is true, isn't it possible, Doctor, that the inception of this ...


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