(dissenting). The contract of insurance sued upon provides that it shall not go into effect or become operative until the first payments due thereon should be made. I think the evidence fails to show that these payments were made, and, consequently, the policy or contract never was binding, and was of no effect.
In the contract of insurance — calling and referring to it as such in this opinion for the sake ^ of convenience — Lucien Farmer, the insured, warranted the statements and answers to questions contained in his application for a policy of insurance “to be full, complete and true,” and agreed with the Mutual Reserve Fund Life Association, the insurer, that, if they were not full, complete and true, the policy or contract of insurance executed to him should be null and void. Were they full, true and complete? To the following four questions: “how long since you were attended by a physician,” “state name and address of such physician,” “for what disease or ailment,” and “give name and address of each physician who has prescribed for or attended you within past five years, and for what disease or ailments, and date,” — he answered in his application as follows: to the first, “don’t know;” the second he did not answer;.to the third, “have not been sick in ten years;” and to the fourth he made no response. These questions and-answers are contained in the application, which is dated “June 19, 1893.” Sometime in 1892 Dr. Gaines, a physician, was called to see him, when he was uuder the influence of chloroform, and in an insensible condition. After this he spoke to the doctor about it; mentioned his services and his intention to pay for them; and “said he regretted the act very much; that he was going to live a changed life, and be a different man.” If my memory be correct, this evidence is uncontradicted and unimpeached. If it be true, which I do not doubt, the answers to the questions are not full, complete and true; and the contract sued on is void.
In Providence Life Assurance Society v. Reutlinger, 58 Ark. 528, a covenant was contained in the policy similar to that contained in the contract sued on in this case. Among the questions propounded to the insured was the following: “When and by what physician were you last attended, and for what complaint?” To which he replied: “Never called a doctor in his life.” In speaking of this question the court said: “In the last-mentioned interrogatory two questions were combined in one. (1) He was asked, ‘when and by what physician were you last attended?’ (2) If so, ‘for what complaint?’ The object of asking ‘for what complaint’ was not to ascertain if he ever had any serious illness or personal injury. He had already answered a question propounded for that purpose in the negative. If such had been the object, it was wholly unnecessary to ask in .connection with it, ‘when and by what physician were you last attended?’ The question takes for granted that if he had been attended by a physician, it was in a ease of sickness;’ and the words, ‘for what complaint,’ were added to ascertain what the sickness was, without regard to its being serious or trivial, and to show what kind of attendance of a physician was referred to. The obvious purpose of it was to ascertain the name of a person from whom information affecting the risk of insuring the life of Reutlinger could be derived.”
The first three questions in this case which I have set out in this opinion are about the same as the one in the Reutlinger case. In this ease the question was, “how long since you were attended by a physician?” In the Reutlinger case it was, when were you last attended by a physician? The difference in these parts of the questions is: in the former the words, “how long since,” and in the latter, “when,” are used. The information sought by each is the same. By the remainder of the questions in the two cases the insurer seeks to find out the name of the physician, and the complaint or ailment for which he attended. In this ease, as in the Reutlinger case, the object of asking the question “for what disease or ailment” was not to ascertain if he ever had any serious illness or personal injury. He had already answered a question propounded for that purpose in the negative. If such had been the object, it was wholly unnecessary to ask in connection with it, “how long since you were attended by a physician,” and “state name and address of such physician.” The question takes for granted that if he had been attended by a physician, it was in a case of sickness; and the words “for what disease or ailment” were added to ascertain what the sickness was, without regard to its' being serious or trivial, and to show what kind of attendance of a physician was referred to. Why ask the insured to “state name and address of such physician?” Why was the address of the physician demanded? . The obvious purpose of the three questions, as of the one in the Reutlinger case, was to ascertain the name of a person from whom information affecting the risk of insuring the life of Farmer could be obtained. The answers of the insured do not give the information which the first and third questions were obviously intended to elicit, and are not “full, complete and time” as the assured -warranted them to be; and the contract sued on, according to its own terms, is null and void.
I think that the judgment of the circuit court should be reversed.