Brockway v. Mutual Benefit Life Ins Co.

• Decision Date: 01 May 1881
• Citation: 9 F. 249
• Parties: BROCKWAY, Adm'r, v. MUTUAL BENEFIT LIFE INS. CO.
• Court: U.S. District Court — Western District of Pennsylvania

9 F. 249

BROCKWAY, Adm'r, v. MUTUAL BENEFIT LIFE INS. CO.

United States Circuit Court, W.D. Pennsylvania.

May, 1881

Hon. G M. Harding, Asst. U.S. Atty. Wilson, and Col. Knorr, for plaintiff.

Messrs Dalzell, Purviance & Stoner, contra.

ACHESON D. J.

(charging jury.) This is an action by Charles B. Brockway administrator of Beckwith S. Brockway, deceased, for the use of D. F. Seybert, against the Mutual Benefit Life Insurance Company of New Jersey. The suit is upon a policy of insurance dated March 12, 1868, for the sum of $10,000, issued by the defendant company upon the life of Beckwith S. Brockway, of Salem township, Luzerne county, Pa. On its face, the policy would seem to have been taken out by Beckwith S. Brockway on his own account. It appears to be an ordinary contract of life insurance between him and the company. By its terms, in consideration of the payment of the case premium, and the annual premiums therein specified, the company agreed to pay the sum of $10,000 to the executors, administrators, or assigns of Beckwith S. Brockway, within 90 days after due notice and proof of his death, and proof of interest by the party claiming the insurance money.

The plaintiff gave in evidence:

(1) A paper dated March 8, 1868, containing the 'declaration' of Beckwith S. Brockway, made upon his application for insurance, and certain printed questions propounded by the company, and the written answers thereto made by Brockway, his friend, and his physician, which answers are expressly made 'the basis of the contract' between Brockway and the insurance company. (2) The policy of insurance issued by the Mutual Benefit Life Insurance Company in pursuance of that application, the policy containing a receipt for $650, the first premium. (3) A receipt dated March 12, 1869, for $650, the second year's premium. (4) Proof of the death of Beckwith S Brockway on December 4, 1869. (5) And it was admitted that the due proofs of death and interest were furnished the company on December 27, 1869.

The plaintiff thus made out a prima facie case which would entitle him to your verdict, in the absence of any defence shown by counter evidence. But the insurance company has set up several defences, and much evidence bearing thereon has been given. These defences, (so far as submitted to you,) and the evidence touching the same, both that on the part of the defence and that in rebuttal, deserve and should receive your careful and dispassionate consideration.

The 'declaration' made by Beckwith S. Brockway on March 8, 1868, upon the faith of which the policy in suit issued, contains the following stipulation on his part, viz.:

'That I do not, nor will I, practice any bar or vicious habit that tends to the shortening of life. And I hereby agree that the answer made by myself, my physician, and my friend, shall be the basis of the contract between myself and the said company, and if any untrue or fraudulent allegation is contained in said answer, or this declaration, all moneys which shall have been paid to the said company on account of the assurance to be made in consequence thereof, shall be forfeited for the benefit of the company.'

The answers, being thus made by the parties the basis of their agreement, became a material part of their contract, and absolutely binding upon the insured; and if any of the answers are shown to be untrue, the policy is void.

The defendant (the insurance company) alleges that several of the answers are untrue. Here it is proper for me to say that, as the defendant makes this allegation, the burden of showing that the answers are untrue is, of course, upon the company. The defendant claims that the untruth of certain of the answers has been shown by the evidence submitted to you. To the answers alleged to be untrue I will now direct your attention.

The tenth and eleventh questions addressed to Beckwith S. Brockway relate to his health; and he was asked whether he had had any of certain specified diseases or any sickness within the last 10 years. To the tenth question he answered: 'Nothing but rheumatism, of a subacute type, at long intervals, and confined to the hands and finger joints. ' To the eleventh question he answered: 'Rheumatism; nothing else.' Upon the subject of his health, Brockway's 'friend,' Silas E. Walton, answered: 'I have known him to have slight attacks of rheumatism. ' And the Physician, Dr. R. H. Little, answered: 'Has occasionally had attacks of subacute rheumatism, seldom requiring medical interference, and not confining him to the house.'

These answers are alleged to be untrue. I cannot recall any evidence which shows that Beckwith S. Brockway was ever affected with any of the diseases inquired of other than rheumatism. Whether, as affecting the risk under the policy in suit, there is any essential differences between rheumatism of a subacute type, and rheumatism of an inflammatory type, is a question to be settled upon medical testimony, and I am not persuaded that we have sufficient evidence, here to solve that question. There is, perhaps, some evidence tending to show that on one occasion this disease affected his knee joints, or one of them. There is also evidence that on several occasions, when suffering from rheumatism, he was confined to the house; but it is by no means clear that this confinement occurred during the period of time covered by Dr. Little's answer. Upon the whole, I am not satisfied that there is sufficient evidence in the case to justify me in submitting to you the question, whether the answers touching the health of Brockway were untrue; and I therefore instruct you to disregard this particular defence, and to dismiss it altogether from your consideration.

The seventeenth question addressed to Beckwith S. Brockway, and his answer thereto, are as follows: Question. 'Name and residence of the Party's usual medical attendant, or of the medical attendant of his family, to be referred to for information as to his health. ' Answer. 'R. H. Little, Berwick, Pennsylvania.' This answer is alleged to be untrue. But I am of the opinion that the evidence upon this subject would not justify a verdict for the defendant, and I therefore instruct you to disregard and dismiss from your consideration this particular defence.

This brings us to a branch of the defence which deserves your most serious consideration. The thirteenth question propounded to Beckwith S. Brockway, and his answers thereto, are in these words: Question. 'Is the party (Beckwith S. Brockway) sober and temperate? ' Answer. 'Yes.' Question. 'Has he always been so?' Answer. 'Yes.'

The defendant alleges that these answers are untrue, and a very large number of witnesses have been examined in your presence and hearing, and many depositions have been read on the part of the defendant, to show the untruthfulness of these answers in respect to Brockway's sobriety and temperance. On the other hand, the plaintiff has submitted a great deal of testimony, oral and by depositions, to rebut the defendant's evidence on this point, and to sustain the truth of these answers.

The question of fact is for your determination: Was ...