Connecticut Mut. Life Ins. Co. v. Hillmon

Decision Date03 April 1901
Docket Number1,451.
Citation107 F. 834
PartiesCONNECTICUT MUT. LIFE INS. CO. v. HILLMON.
CourtU.S. Court of Appeals — Eighth Circuit

This is an action on a policy of life insurance in the sum of $5,000, which was issued March 4, 1879, on the life of John W. Hillmon, for the sole use and benefit of his wife, Sallie E. Hillmon, the plaintiff below and the defendant in error here. The case has had an eventful history. John W. Hillmon was killed, as it is claimed, on March 17, 1879, by the accidental discharge of a gun at a camp near Medicine Lodge, in a portion of Kansas which was then sparsely settled. The defendant company alleged fraud and refused to pay the policy, claiming that Hillmon was still living, and that the body produced as being his was the corpse of another man, who had either been murdered by Hillmon, or was a cadaver that had been found by him somewhere on the plains of Southwestern Kansas. The action was brought on July 13, 1880, and has been tried, as we are advised, six times, before as many different judges and juries, resulting in a mistrial on each occasion except the last and a trial which took place in 1888, on both of which occasions the plaintiff below prevailed. The defense to the action that was relied upon principally on the last trial is set forth in the defendant's answer, after a general denial of all of the allegations of the complaint, in the following language: '(2) Said defendant, further answering, says that on and before the 30th day of November A.D. 1878, one John W. Hillmon, John H.Brown, and Levi Baldwin, and divers other persons, to the defendant unknown, unlawfully and fraudulently confederating, conspiring, contriving, and intending to cheat and defraud this defendant, procured a large amount of insurance to be taken on the life of the said John W. Hillmon, to wit, in the New York Life Insurance Company * * * the sum of ten thousand dollars, in the Mutual Life Insurance Company of New York * * * the sum of ten thousand dollars, and in the Connecticut Mutual Life Insurance Company, by its policy * * * the sum of five thousand dollars. That thereafter, and in pursuance of said conspiracy, and with said intent, said Hillmon, Brown, and Baldwin did falsely and fraudulently pretend and represent unto this defendant and others that said Hillmon was dead, and did, on or about the months of March and April, A.D. 1879, and thereafter, for the purpose of securing the payment of said policies and obtaining the money thereon, falsely and fraudulently claim, pretend, and represent unto this defendant that the said John W. Hillmon was dead, and that a certain dead body which they had procured and had was the dead body of the said John W. Hillmon, whereas said John W. Hillmon was not and is not dead. That since said time the said Hillmon has kept himself concealed, and has and is keeping himself concealed under assumed names, for the purpose of consummating the conspiracy entered into as aforesaid. ' In addition to the foregoing plea, the answer contained another plea to the effect that the plaintiff had released the cause of action sued upon for a sufficient consideration by a writing which was executed by her on March 4, 1881. To the plea of release the plaintiff replied, in substance, that it was obtained without consideration, by fraud, and the facts constituting the fraud were specifically set forth.

Sanborn, Circuit Judge, dissenting.

J. E. McKeighan and Edward S. Isham (Buell McKeever, J. W. Green, Shepard Barclay, and M. F. Watts, on the brief), for plaintiff in error.

C. F. Hutchings and L. B. Wheat (John H. Atwood, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

During the progress of the trial, and in its final charge to the jury, the lower court ruled, in substance, that the defendant company had not averred in its answer that Sallie E. Hillmon, the sole beneficiary in the policy, was a party to the alleged conspiracy between John W. Hillmon, John H. Brown, and Levi Baldwin to defraud it and other life insurance companies; that, as her connection with the conspiracy had not been averred, it could not be claimed that she was a party thereto; that the substantive defense which was pleaded in the answer was that Hillmon was not dead, for which reason no liability had accrued on the policy when the suit was filed; that the principal question in the case was whether John W. Hillmon died, as claimed by the plaintiff, in consequence of a gunshot wound inflicted on March 17, 1879; and that the existence of the alleged conspiracy between Hillmon, Brown, and Baldwin was only relevant to strengthen the probability that Hillmon was still living. In various ways exceptions were reserved to these rulings, which will collectively form the first subject for consideration.

It is manifest, we think, from an inspection of the answer, that the trial court was right in holding that the defendant had not pleaded that Mrs. Hillmon was a party to the alleged conspiracy between the three persons last above named, and such seems to have been the view that was entertained at the trial by counsel for the defendant company, for in his opening statement to the jury, after alluding to a remark which had been made by the plaintiff's attorney in his opening address, to the effect that the defendant had never claimed that Mrs. Hillmon was a party to any conspiracy, he said: 'What evidence will be deduced on that point is for you gentlemen to determine. What we say on paper is that John W. Hillmon, Levi Baldwin, and John H. Brown did conspire to defraud these insurance companies. ' This was an admission that the defendant had only charged in its answer that the three parties last named had conspired to defraud the company, and that it had not ventured to commit itself to the statement that Mrs. Hillmon had ever participated therein.

It is further manifest that the trial court was right in holding that the fact that John W. Hillmon was not dead when the action was brought, but was concealing himself somewhere constituted the substantial defense pleaded in that part of the answer which is quoted above; that the issue tendered by the plea was whether he was dead or alive; and that such issue presented the principal question of fact for the consideration of the jury. It will not be presumed that the second plea contained in the answer was intended to state more than one defense, for which reason the first paragraph thereof, which alleges, in effect, that Hillmon, Brown, and Baldwin had entered into a conspiracy to defraud certain insurance companies, among others the defendant, cannot be regarded as stating a substantive defense to the plaintiff's cause of action, but that averment must be treated as being merely introductory to the fact afterwards alleged that Hillmon was not dead. As we construe the plea, this latter allegation constitutes the defense on which the pleader intended to rely. We do not perceive, therefore, that the lower court committed any error in the several rulings last aforesaid, or in making the statement that the existence of the conspiracy between the parties named in the plea was not a controlling issue, but at most was only relevant in so far as its existence, if shown, might tend to strengthen the probability that Hillmon was still living. It was not only not alleged that Mrs. Hillmon ever became a party to the conspiracy, but, as we understand the contention of defendant's counsel, the evidence upon which they now rely to show her possible connection with the conspiracy is the fact that she saw the remains of the man who was shot near Medicine Lodge after they had been exhumed and brought back to Lawrence, Kan., where the plaintiff resided. The argument is that, as she saw the remains of the person who had been shot, not immediately after the occurrence, but at Lawrence, Kan., some weeks after the alleged shooting, she probably discovered that they were not the remains of her husband, and that by suing on the policy after she had made such discovery she attempted to avail herself of the fruits of an existing conspiracy, and by so doing became a party thereto. It is obvious, however, that if she did make the supposed discovery, as counsel assume, and if the jury were satisfied of that fact (as they evidently were not), then, as John W. Hillmon was not dead, her right to recover on the policy was defeated by the very evidence-- and the only tangible evidence, as it seems-- which is now relied upon to show that she adopted the conspiracy, and became a party hereto, after it was partially executed. The trial court was requested, however, to instruct the jury, in substance, that if the alleged conspiracy between Hillmon, Brown, and Baldwin was entered into, and if Mrs. Hillmon was advised of that fact when the alleged body of Hillmon was brought back to Lawrence and she discovered that it was not the body of her husband, and if she thereafter brought the present action, then she adopted the conspiracy; and one complaint which is made by the defendant is that this instruction was not given. For reasons already sufficiently indicated, no error was committed in refusing the request, however correct it may have been as an abstract proposition of law. The crucial question whether the body last above mentioned was the dead body of the plaintiff's husband or that of some other person was submitted to the jury, and the plaintiff's right to recover, so far as the second plea was concerned, was made to turn upon the finding upon that issue. The finding was against the defendant, the jury being satisfied, after listening to the testimony of a multitude of witnesses, that Hillmon was dead, and that the...

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