Union Cent. Life Ins. Co v. Pollard

• Decision Date: 10 December 1896
• Court: Virginia Supreme Court
• Parties: UNION CENT. LIFE INS. CO. v. POLLARD.

26 S.E. 421

94 Va. 146

UNION CENT. LIFE INS. CO.

v.POLLARD.

Supreme Court of Appeals of Virginia.

Dec. 10, 1896.

Life Insurance — By what Laws Governed — False Declarations — Evidence — Entry in Family Bible—Proving Foreign Laws—Proceeding by Motion—Pleadings—Bill of Exceptions.

1. It being provided in a contract of insurance that it shall be held and construed to have been made in the city of Cincinnati, Ohio, " the beneficiary may, in enforcing the contract, rely on the laws of that state, so far as they relate to its validity, nature, interpretation, and effect; but, the admission of evidence and the rules of evidence being matters of procedure only, the laws of Ohio on such subject will not be followed.

2. On proceedings for judgment, on an insurance policy recited therein to be an Ohio contract, by motion on notice under Code, § 3211, the laws of Ohio may be introduced, though not expressly relied on in the notice; defendant not having moved, under section 3249, for a statement of particulars.

3. The proper manner for proving the laws of another state is by an authenticated copy of the statute.

4. An entry in the Family Bible of one whose life is insured, though made by a person not a member of the family, is admissible against plaintiff in an action on the policy.

5. There being evidence that insured's age was other than as stated by him in his application for life insurance, the company may, in an action on the policy, for the purpose of showing that he had knowledge of his age, and that his false answer as to his age in the application was fraudulent, show that in a prior application to another company he has given his correct age.

6. While declarations of insured are not admissible against his beneficiary to prove facts showing false statements in his application for insurance, yet, such facts being otherwise proved, his declarations are competent to show that he had knowledge thereof.

7. To show error in rejection of evidence the bill of executions must show materiality of the evidence.

Appeal from circuit court of city of Richmond.

Proceeding on motion by Dollie E. Pollard against the Union Central Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Christian & Christian and Ramsey, Maxwell & Ramsey, for appellant.

Geo. P. Haw and Pegram & Stringfellow, for appellee.

BUCHANAN, J. Section 3211 of the Code authorizes a party entitled to recover money from a life insurance company on a policy of insurance to proceed against it by motion upon notice. Insurance Co. v. Pankey, 91 Va. 259, 21 S. E. 487; Long v. Pence's Committee (decided at Staunton, Sept. term, 1896) 25 S. E. 593.

The policy of insurance provided that it was "issued and accepted upon the further conditions and agreements contained on the following page, which are made a part of this contract, and which contract shall be held and construed to have been made in the city of Cincinnati, Ohio."

The defendant company was an Ohio corporation doing business in this state where the insured lived, and where the application was made. But for the express provision in the contract of insurance that it should be "held and construed to have been made in the city of Cincinnati, Ohio, " there might be some ground for holding that it was a Virginia contract.

Where, however, the parties to the contract have themselves expressly declared that their contract shall be held and construed as made with reference to a certain jurisdiction, that shows by what law they intended the transaction to be governed. And, as said by Phillimore (4 Int. Law, 469): "It is always to be remembered that in obligations it is the will of the contracting parties, and not the law, which fixes the place of fulfillment—whether that place be fixed by express words or by tacit implication—as the place to the jurisdiction of which the contracting parties elected to submit themselves." "In every forum, " said Chief Justice Marshall in Wayman v. Southard, 10 Wheat. 1, 48, "a contract is governed by the law with reference to which it is made."

There is no room for inference or presumption as to what that intention was when it is expressed in the contract. Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102.

The contract of insurance having been made with reference to the laws of the state of Ohio, the plaintiff had the right to rely upon them in enforcing his contract so far as they related to its validity, nature, interpretation, and effect. Bank v. Ruckman, 16 Grat. 126, i27; Corbin v. Bank, 87 Va. 665, 13 S. E. 98; 3 Minor, Inst. 145; Story, Conn. Laws, §§ 263, 280.

In order to rely upon the laws of that state, it was necessary to prove them, as the court could not take judicial notice of the laws of another state. They are facts of which courts and juries must be informed as of other facts.

The plaintiff offered in evidence the following sections of the Revised Statutes of Ohio of 1880, over the defendant's objection:

"Sec. 3625. No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is willfully false and was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued, and, moreover, that the agent or company had no knowledge of the falsity or fraud of such answer." 75 Ohio Laws, p. 572, § 18.

"Sec. 3627. All companies organized under any laws of this state shall continue corporations for the purpose for which they were chartered, but subject to all the provisions requirements and penalties imposed on companies organized under this chapter, and entitled to all the benefits and privileges of this chapter." 69 Ohio Laws, p. 159, § 29.

The object of that statute, and statutes of like character which have been enacted in many of the states, was to prevent insurance companies from escaping liability upon their contracts upon mere technical grounds, which do not affect the merits of the case. It abolished the common-law rule that the warranty of the truth of the answer to a specific interrogatory in an application for a policy implied that the subject-matter of the question and answer is material, and that such answer so warranted, if not true, renders the policy void, whether it was made in good faith or not. It provides that no answer in such an application shall bar the right of recovery on the policy unless it was willfully false, fraudulently made, material, and induced the company to issue the policy, and that, but for such answer, the policy would not have been issued, and that neither the agent nor company had any knowledge of the falsity or fraud of such answer. It is a statutory rule for the regulation of contracts of insurance, which prescribes their scope and effect, and determines the duties and obligations of contracting parties. It is therefore as much a part of every contract of life insurance governed by the laws of the state of Ohio, and made after that statute was passed, as if incorporated in it; the general rule being that laws in existence are necessarily referred to in all contracts made under such laws, and that no waiver of the parties nor stipulations in the contract can change the law. Hermany v. Association, 151 Pa. St. 17, 24 Atl. 1064; Insurance Ass'n v. Ficklin, 74 Md. 172, 21 Atl. 680, and 23 Atl. 197; Insurance Co. v. Leslie, 47 Ohio St. 409, 24 N. E. 1072; and White v. Society, 163 Mass. 108, 39 N. E. 771.

It is insisted that, in order to introduce in evidence the laws of the state of Ohio, they must have been relied upon in the plaintiff's pleading.

The proceeding in the case, as we have seen, was by motion upon notice. The rule governing notices is that they are presumed to be the act of the parties, and not of lawyers, and are viewed with great indulgence by the courts. If the notice be such that the defendant cannot mistake its object, it will be sufficient. Supervisors v. Dunn, 27 Grat. 608.

If the defendant desires to have more specific information of the plaintiff's claim than is contained in the notice, be has the right to move the court to order the plaintiff to file a statement of the particulars of his claim. If the court makes such order, and the plaintiff fails to comply with it, the court may exclude evidence of any matter...