Brady v. United Life Ins. Ass'n

• Citation: 60 F. 727
• Decision Date: 27 February 1894
• Docket Number: 68.
• Parties: BRADY v. UNITED LIFE INS. ASS'N.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

60 F. 727

BRADY v. UNITED LIFE INS. ASS'N.

No. 68.

United States Court of Appeals, Second Circuit.

February 27, 1894

E. F Cole, for plaintiff in error.

Geo. E Terry, (Harry Wilber, of counsel,) for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The assignments of error impugn the ruling of the trial judge in instructing the jury to find a verdict for the defendant. If the trial judge correctly instructed the jury to render a verdict for the defendant, upon the ground that there was a warranty by the assured of the truth of the answers made in his application for insurance, and upon the uncontradicted evidence one of the answers was untrue when made, it is unnecessary to consider whether the truth of other representations was, upon the evidence, a question of fact for the jury. The policy was issued October 2, 1891, upon the application of Michael Sinnott, made a few days earlier, and insured his life. It recites that the insurance was made 'in consideration of the answers, statements, and agreements contained in the application which are hereby made a part of this contract.' The application commences with the following recital:

'I, Michael Sinnot, residing at Waterbury, county of New Haven, and state of Connecticut, do hereby make application to the United Life Insurance Association for membership and a policy of insurance upon my life, and, as a consideration therefor, I warrant the statements and answers as written in said application to be full, complete, and true.'

It contained, among others, the following inquiries and answers:

Q. 'Has the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity? If yes, state nature, date, duration, and severity of attack.' A. 'About one year ago lost appetite for short time, but has had no trouble since.' Q. 'How long since you consulted, or were attended, by a physician?' A. 'About a year ago.' Q. 'State name and address of such physician.' A. 'J. F. Hayes M. D.' Q. 'For what disease or ailment?' A. 'Indigestion.' Q. '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.' A. 'J. F. Hayes, M. D., Waterbury, Conn.'

It concludes as follows:

'It is hereby agreed that the answers and statements in this application, whether written by the applicant or not, are warranted to be full, complete, and true, and that this agreement, together with this application, are hereby made part of any policy that may be issued thereon, and that if any answers or statements made are not full, complete, and true, or if any condition or agreement shall not be fulfilled as required by such policy, then the policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association.'

It appeared upon the trial that Hayes was the medical examiner for the defendant who examined Sinnott at the time the insurance was applied for. He had attended Sinnott professionally within the year preceding the application. It also...