ROBISON et ux.
BROTHERHOOD OF RAILROAD TRAINMEN INS. DEPARTMENT, Inc
Judgment reversed with directions.
Holmes & Morrison, of Tucson, for appellants.
Darnell, Robertson & Holesapple, for Tucson, for appellee.
Farley, Superior Court Judge. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concurring. Note: Justice EVO DE CONCINI, being disqualified, the Honorable GORDON FARLEY, Judge of the Superior Court of Santa Cruz County, was called to sit in his stead.
Farley, Superior Court
[73 Ariz. 353] Appellants, who were the plaintiffs below, sought to recover the disability benefits on an insurance policy issued by the defendant-appellee. After a non-jury trial on the merits the court granted the defendant's motion to dismiss plaintiff's complaint and for judgment in favor of the defendant. This appeal followed.
There is no dispute as to the facts. The record discloses that the plaintiff, Marion E. Robison, procured the policy of insurance on September 1, 1943, and became disabled on March 1, 1946, while the insurance policy was in full force and effect. The disability was the result of tuberculosis and continued up to the time of trial. He filed the usual notice of disability with the defendant but his claim was rejected upon the ground that the policy did not cover the disability inasmuch as the disease of tuberculosis had its inception prior to the date the policy was issued to the plaintiff. It is the plaintiff's contention that the provisions of the policy prohibited any inquiry to be made into the plaintiff's physical condition after the policy had been in force for two years. The defendant, however, was permitted by the trial court to inquire into the plaintiff's physical history, and elicited from him on cross-examination the fact that he had been treated for tuberculosis for some time prior to the policy date. In his application for insurance, which became a part of the policy, the plaintiff stated that he had not suffered from tuberculosis. The defendant, however, did not raise the issue of fraud or misrepresentation in its pleadings or at the trial, so that we are not confronted with any question along that line. In other words, the Brotherhood is not contesting the validity of the policy but is only urging that the policy does not provide coverage for the disability sued upon.
The plaintiffs' position is that the policy of insurance contains the following incontestable clause:
"This Certificate will be incontestable and noncancellable by reason of subsequent condition of health. This Certificate cannot be cancelled by the Brotherhood except for fraud, misrepresentation or for other causes provided in the Constitution and General Rules of the Brotherhood of Railroad Trainmen and the Brotherhood of Railroad Trainmen Insurance Department. Unless this Certificate is cancelled for any such causes, the acceptance of all renewal premiums when paid on or before the date when due is guaranteed during the lifetime of the Member.
[73 Ariz. 354] "If this Certificate has been in force two years during the lifetime of the Member, it shall be incontestable as to the accuracy of the representations contained in the application herefor and as to the physical condition of the Member on the date hereof, but not as to other causes provided in the Constitution and General Rules of the Brotherhood of Railroad Trainmen and the Brotherhood of Railroad Trainmen Insurance Department." (Emphasis supplied.)
The defendant contends that the insuring clause of the policy covered only such diseases as arose after the date of the policy and did not cover any diseases that had their inception prior to the policy date. Specifically it relies ...