Judgment reversed with instructions.
Marks & Marks, of Phoenix, for appellant.
George D. Locke, of Phoenix, Kenneth Rosengren, of Phoenix, for appellee.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concur.
This action was brought by the plaintiff, Henrietta Stevens, beneficiary under a certificate of insurance issued by the defendant, Modern Woodmen of America, a corporation, in favor of plaintiff's minor son, Thomas R. Stevens, now deceased.
The facts are that deceased had been issued by the defendant a certificate of insurance in the sum of $ 500 in September, 1931, when apparently he was only about one year of age. Under the regulations of defendant a minor who is the holder of a certificate of insurance in the organization is required to transfer from the junior to the adult group at the age of 16 years.
[70 Ariz. 233] Pursuant to this regulation deceased made application with the defendant for such transfer by filing with it his application therefor bearing date July 20, 1946 in which he applied for an increase in his insurance from $ 500 to $ 2000, making the insurance payable on death to plaintiff. The certificate issued upon the application on July 26, 1946 and was registered on August 1, 1946.
Thomas R. Stevens died on November 2, 1946. Proof of death was duly made to the defendant. Payment was refused except in the sum of $ 500, the amount of the junior policy. Defendant tendered to plaintiff its check in that amount plus the additional premium paid on the $ 2000 insurance contract which plaintiff refused to accept and thereupon brought this action.
Defendant answered plaintiff's complaint and set up as a defense that deceased made certain false answers to questions contained in the application which constituted a breach of warranty and rendered the policy void. The application was by the terms of the certificate of insurance made a part of such contract.
The cause was tried to a jury and verdict and judgment rendered in favor of plaintiff for $ 2000. From said judgment and the order denying motion for a new trial defendant appeals setting up ten separate assignments of error, all of which when reduced to their simplest form present
but one question, to wit: Did deceased make false answers to the questions in his application for insurance which amounted either to actual or legal fraud? An answer to this question will effectively dispose of all other ...