AMERICAN NAT. INS. CO.
Gust, Rosenfeld, Divelbess, Robinette & Linton, Phoenix, for appellants.
Darrel R. Parker, Phoenix, for appellee.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concurring.
De Concini, Justice.
Appellee, Mary Lee Caldwell, plaintiff below, widow of Boley H. Caldwell, hereinafter called deceased, instituted action against American National Insurance Company, appellant, hereinafter called defendant, to recover on a policy of life insurance issued by defendant on life of deceased. Defendant denied liability on ground that deceased knowingly made material misrepresentation of facts in his application for said insurance; that said application was a part of his policy, and such misrepresentation constituted fraud, voiding the policy. Defendant tendered in court amount of premiums collected.
A jury verdict of $ 1,000 and judgment rendered thereon in favor of plaintiff was entered in the trial court. Upon denial of motion for a new trial defendant appealed.
There was no dispute in the evidence adduced at the trial. Plaintiff was the only witness called. Defendant introduced the deposition of one witness. All other matters were stipulated to by the parties, including the following: "1. That if the defendant company at the time of the issuance of the policy sued upon, or prior to the issuance of said policy, had been advised that the insured, Boley H. Caldwell, [70 Ariz. 79] had been treated in October or November, 1944, for an ulcer condition and had secured X-Ray examination that disclosed an active duodenal ulcer, the company would not have issued the policy which was issued to Boley H. Caldwell."
Defendant appealed on the grounds that the uncontradicted evidence showed that deceased knew and did not disclose in his application for insurance that he had within the past year been treated for duodenal ulcer; and that failure to disclose same to defendant amounted to fraud which voided the policy.
The law is well settled in this state that failure to disclose material facts with no intent to deceive, in an application for a life insurance policy where the insured knew of those facts at the time of his application, constitutes legal fraud and voids the policy. Greber v. Equitable Life Assurance Society, 43 Ariz. 1, 28 P.2d 817; Illinois Bankers' Life Ass'n v. Theodore, 44 Ariz. 160, 34 P.2d 423; Sovereign Camp, W. O. W. v. Sandoval, 47 Ariz. 167, 54 P.2d 557; First Nat. Ben. Soc. v. Fiske, 55 Ariz. 290, 101 P.2d 205.
There is no question that deceased did not disclose to defendant that he had a duodenal ulcer, the only question is did he know that ...