Aetna Life Ins. Co. of Hartford, Conn., v. Outlaw

• Decision Date: 14 February 1912
• Docket Number: 1,056.
• Citation: 194 F. 862
• Parties: AETNA LIFE INS. CO., OF HARTFORD, CONN., v. OUTLAW.
• Court: U.S. Court of Appeals — Fourth Circuit

194 F. 862

AETNA LIFE INS. CO., OF HARTFORD, CONN., v. OUTLAW.

No. 1,056.

United States Court of Appeals, Fourth Circuit.

February 14, 1912

W. G Belser (Melton & Belser, on the brief), for plaintiff in error.

Robert Macfarlan and P. A. Willcox (Macfarlan & Thornwell and Willcox & Willcox, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and McDOWELL and SMITH, District judges.

SMITH District Judge.

This is a suit upon an insurance policy upon the life of Daniel Angus Outlaw, which was assigned to the defendant in error. The policy was for $5,000, dated July 8, 1908, and was assigned to the defendant in error on the 13th of July, 1908. The insured, Daniel Angus Outlaw, died December 1, 1908, and suit was thereupon brought by his assignee in the court of common pleas for the county of Darlington for the state of South Carolina to recover the amount of the policy, which action was removed to the Circuit Court of the United States for the District of South Carolina. The policy of insurance contained a provision as follows:

'All statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties, and no such statement shall avoid the policy or be used in defense to a claim under it, unless it is contained in the written application for this policy and copied hereon.'

The defense of the AEtna Life Insurance Company to the policy is based upon certain alleged misstatements, viz., that the defendant stated that he was in his 58th year, whereas he was in fact more than 60 years of age; that he stated that he had made one application, which had been rejected by the Mutual Benefit Society, whereas he had also made another application, which had been rejected by another company; that he had made a statement that he had not within the last seven years had any disease or severe sickness, whereas he had within seven years suffered from disease or severe sickness that he stated that he had never been intemperate in the use of either malt or spirituous liquors, whereas he had been so intemperate. Evidence on these controverted allegations was offered by both sides, and the case went to the jury, which found a verdict for the defendant in error.

Under the assignments of error the question in this court turns upon the trial judge's charge with regard to the effect of the statements of the insured. The trial judge charged:

'That under the terms of the policy upon which this suit is based, all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties; therefore, in the absence of fraud, no false statement in reference to an immaterial matter, and no false statement which did not induce the company to enter into the contract, and in which the insured participated with a fraudulent intent, can be relied upon by the insurer as a defense.'

And again:

'That representations which may be...