Court of Appeals (specially concurring).
I concur in the opinion of Justice Moise. However, I do so only because I am firmly convinced that material distinctions exist between the facts in this case and the facts in Modisette v. Foundation Reserve Insurance Company, 77 N.M. 661, 427 P.2d 21, decided this date, and that these material distinctions require a result different from that reached in Modisette.
The material facts in Modisette are set forth in the opinion in that case. I shall not endeavor to here repeat any of those facts.
As stated in the opinion in the present case, the defendant predicated its appeal upon claimed errors of the trial court in making its findings S, 6 and 7, which are set forth in the opinion. To avoid any possible misconstruction of the defendant’s position, the points relied on are hereinafter set forth.
The first point relied upon for reversal is as follows:
“The Court erred in finding that the answers given by plaintiff to defendant on plaintiff’s application were substantially accurate (See Finding of Fact No. 5 and Defendant’s Requested Finding of Fact No. 1)”
Defendant’s requested finding of fact No. 1 is:
“In the instant case, the plaintiff stated to the defendant’s agent at the time of applying for the policy that he had not had his driver’s license cancelled within the preceding 36 months. This was a misrepresentation.”
Finding of fact No. S makes no reference to “answers given by plaintiff to defendant on plaintiff’s application,” but only “that plaintiff gave defendant substantially accurate answers to questions asked.” In fact, no answers whatsoever appear on the plaintiff’s application.
There can be no doubt that plaintiff did make the misrepresentation claimed in defendant’s requested finding of fact No. 1. He so admitted.
Even if it be conceded, for the sake of the argument, that because of the one false statement there was no substantial evidence to support the court’s finding that plaintiff “gave to defendant substantially accurate answers to questions asked by defendant’s agent and gave a substantially accurate driving history to defendant,” this still does not establish the materiality of this false statement.
The determining question in this case, in my opinion, is the materiality of this misrepresentation.
“A representation or concealment of a fact is material if it operates as an inducement to the insurer to enter into the contract, where, except for such inducement, it would not have done so, or would have charged a higher premium. * * *” Modisette v. Foundation Reserve Ins. Co., supra.
Defendant’s second point relied upon for reversal is that:
“The Court erred in finding that in answering the questions of defendant, plaintiff had no intention of deceiving defendant (See Finding of Fact No. 7, Tr. 69, and Defendant’s Requested Finding of Fact No. 5, Tr. 61).”
. Defendant’s requested finding of fact No. 5 is: “One or more of such misrepresentations of plaintiff were made knowingly.”
It is recognized in the opinion that the correct rule of law applicable in insurance cases is no different than that applicable in mercantile transactions. The rule is that if a misrepresentation be made, or information be withheld, and such be material to the contract, then it makes no difference whether the party making the misrepresentation or withholding the information acted innocently or with an intent to deceive. Bennett v. Finley, 54 N.M. 139, 215 P.2d 1013 (1950); Ham v. Hart, 58 N.M. 550, 273 P.2d 748 (1954) ; Modisette v. Foundation Reserve Ins. Co., supra.
" As already stated, the controlling question 'is that of the' materiality of the misstate•iment,'''and the court’s finding that plaintiff had no intention of deceiving defendant is of no importance.
The defendant’s third point relied upon for reversal reads:
“The Court erred in finding that the discussion with plaintiff was solely for determining the amount of premium to be charged and that defendant did not rely on it in issuing the policy (Finding of Fact No. 6, Tr. 69; see Defendant’s Requested Finding No. 9, Tr. 62).”
The defendant’s requested finding of fact No. 9 is that:
“True answers were needed by defendant in order to determine the desirability of plaintiff as an insurance risk, and to determine the proper premium to charge plaintiff for the insurance. Such questions and answers therefore were material.”
The defendant’s agent, who issued the policy and who asked the questions of plaintiff, testified as follows:
“Q. Do you know the purpose of asking those questions ?
“A. That is the basis to which you arrive at your premium.
“Q. Did you discuss with Mr. Tsosie in any manner or any degree the reason for asking these questions?
’ “A. Only "to tell him the answers of these questions would help me to arrive at a premium which he was' going to be charged.
“Q. And the reason you asked him these questions was to determine the amounts of premium?
"A. Right.
“Q. Was that the only purpose?
“A. That would be my only purpose, yes.”
This testimony alone supports the finding of the trial court, even if we were to disregard the other evidence in the case.
As to the materielity of the misrepresentation, the court made no finding one way or the other. As pointed out in the opinion, this amounted to a finding on this question against the defendant, if there is substantial evidence to support such a finding. Hopkins v. Martinez, 73 N.M. 275, 387 P.2d 852 (1964) ; Hoskins v. Albuquerque Bus Co., 72 N.M. 217, 382 P.2d 700 (1963).
This court must view the evidence in the light most favorable to support the trial court’s finding, or a jury verdict, and before reversing must be convinced that the finding, or verdict, cannot be sustained either by the evidence or inference therefrom. Hoskins v. Albuquerque Bus Co., supra; Perschbacher v, Moseley, 75 N.M. 252, 403 P.2d. 693 (1965) ; Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966),
In addition to the above-quoted -testimopy; of the defendant’s agent who .issued’, the policy as to his purpose in asking the questions, I would point out that the printed’ application form calls for the information as to the plaintiff’s driving record within the past 36 months; whether or not during this time he has had insurance coverage declined, cancelled, cancellation requested, or renewal refused; whether or not during this time he had been involved in more than one accident; whether or not during this time he had a driver’s license suspended, placed on probation, or revoked; and other'matters pertinent to his desirability as an- insurance risk and the premium to be charged, as well as such matters as his name and address, the policy period, description of the.vehicle, uses to be made of the vehicle, etc. This application form was signed in blank by plaintiff,, but the agent did not fill in one single blank. Thus, it contains absolutely no information concerning the plaintiff, other than his sigr nature, which was affixed at the bottom thereof.
A supplementary rating statement was also signed by plaintiff and the agent. This-was a form provided by defendant to' its agent for the purpose of rating the applicant according to a merit plan -and rating schedule. As stated in the opinion, this was not properly completed by the agent; and it is difficult, if not impossible, to -look at this’, rating statement as completed by. the agerjt. and ascertain therefrom the reason for the checkmarks placed thereon.
The opinion also sets forth the fact that plaintiff did make truthful answers to many questions asked concerning his driving record, etc., which would have affected his rating had the agent chosen to consider and correctly record the same on the rating statement. Two of these matters about which he told the agent were that SIC had just refused to write him insurance, because he had been charged with reckless driving and DWI in 1962, and that he had been charged with reckless driving and DWI within the last 36 months in connection with another accident.
I believe that under these facts the question of the materiality of the misrepresentation was one of fact. See Maryland Indemnity & Fire Ins. Exch. v. Steers, 221 Md. 380, 157 A.2d 803 (1960); Mayflower Ins. Exch. v. Gilmont, 280 F.2d 13, 89 A.L.R.2d 1019 (9th Cir.1960) ; Annot., 89 A.L.R.2d 1027.
I also believe that viewing this evidence in the light which we must on appeal, a finding that the misrepresentation was not material to either the issuance of the policy or to the amount of premium to be charged is supported by the evidence.
■ For the reasons stated in the opinion and in this specially concurring opinion, I concur-in the result reached by Justice Moise.