Doll v. Equitable Life Assur. Soc. of the United States

• Decision Date: 12 June 1905
• Docket Number: 20.
• Citation: 138 F. 705
• Parties: DOLL v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

138 F. 705

DOLL v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 20.

United States Court of Appeals, Third Circuit.

June 12, 1905

Spencer Weart, for plaintiff in error.

Gilbert Collins, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

The case before us comes up on writ of error to the United States Circuit Court for the District of New Jersey. Suit was brought by the plaintiff below, who is plaintiff in error against the Equitable Life Assurance Society, defendant in error, in the Supreme Court of the state of New Jersey, upon a policy of life insurance, issued by the defendant to William Doll, husband of the plaintiff, for the sum of $5,000. Thereafter, the said suit was removed, at the instance of the defendant, to the Circuit Court of the United States for the District of New Jersey. Application for the policy was made by the plaintiff's husband on October 3, 1902, and he died on the 11th of May, 1903.

The plaintiff's declaration avers generally the performance of all conditions precedent on the part of the insured to be performed. A statute of the state of New Jersey provides that 'either party to an action may aver performance of conditions precedent generally; and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent, the performance of which he intends to contest. ' The defendant pleaded the general issue, with notice of two special defenses, setting forth in detail certain conditions precedent, the performance of which the defendant intended to contest. Counsel for plaintiff in error, in his first assignment, contends that the specification of such conditions precedent, by way of notice of special matter to be given in evidence at the trial accompanying a plea of the general issue, is not such a pleading as is required by this statute. We think, however this contention is without merit. The plea of the general issue, with notice, as above stated, is technically and in substance a pleading within the meaning of the New Jersey statute. Such a plea of the general issue, with notice of special matter, is authorized by the law of the state as a substitution for a special plea in bar. The special matter as set out, is part of the pleading. There was no error in holding that the defendant had sufficiently complied with the requirements of the statute referred to.

At the conclusion of the testimony on both sides, upon motion of defendant's counsel, the jury were directed to find a verdict for the defendant, which action of the court below is here assigned for error. The two special matters of defense, of which notice was given with the plea of the general issue, were (1) that the insured, William Doll, had warranted that there was no history of consumption in his family; i.e. among his parents, brothers or sisters, uncles or aunts, while the truth was that a sister had died of consumption; (2) that the insured, William Doll, had warranted that he had not had any serious illness, which was false, because he had had an attack of hemorrhage of the stomach within two years of the date of his application.

On the first page of the policy, as referred to by the court below in its opinion, is this language: 'The privileges and conditions stated in the second and third paragraphs hereof form a part of the contract, as fully as if recited at length over the signatures hereto affixed,' and on the third page, in addition to the statement of the money consideration of the written and printed application for this policy, which is hereby made a part of this contract;' and at the close of the third page occurs this language: 'This policy and the application therefor taken together, constitute the entire contract, which cannot be varied, except in writing, by one of the following executive officers of the society,' (naming them). In the application thus repeatedly and specifically referred to in the body of the policy, and signed by William Doll, the insured, appears this language:

'I hereby agree that this application and the policy taken together, shall constitute the entire contract between the parties hereto; that all statements and answers herein are warranted to be true; that this contract shall not take effect until the first premium has been paid during my good health. I have not been declined or postponed by any life company or received a policy different in form from the one originally applied for, nor have I been intemperate, or had any serious illness or disease, except diseases incident to childhood, and there is no history of consumption or insanity in my family, i.e., among parents, brothers or sister, uncles or aunts.

'Note-- If applicant has ever been declined by any life company or received a policy different from the form originally applied for or been intemperate, or had any serious illness or disease, other than childhood diseases, or if there is any history of consumption or insanity in applicant's family-- among parents, brothers, sisters, uncles or aunts, state particulars here.'

After the note, there was a small blank space in case of affirmative statements as to the matters mentioned in the note. This blank was not filled in. The father, and brother-in-law of the assured, and two physicians were called by the defendant, and by their undisputed testimony it appears that Rosa Buehler, a sister of the assured and wife of the brother-in-law who testified, had died of consumption in September, 1897; that she had had the disease from one to two years previous to her death; that about three months prior thereto, the disease culminated, and her death was probable; that during her illness, and at the time of her death, she was living in New York City, and that the assured, her brother, who was living with his father in Hoboken, New Jersey, had often visited his sister during her illness.

It is entirely clear that the statements made by the deceased in his application for insurance, were warranties and not mere representations or statements of belief. It is settled law that the party to a contract may make the existence or nonexistence of any fact a condition precedent to the obligation of performance undertaken by either party. And this is true as to the parties to a contract for life insurance. Moulor v. American Life Ins. Co., 111 U.S. 335, 341, 4 Sup.Ct. 466, 28 L.Ed. 447. The language we have quoted from the policy and the application is perfectly clear and unequivocal in this respect. There was an unqualified undertaking on the part of the insured, that the facts alleged by him were as he represented them to be. They were facts about which he could well have exact information. There is nothing in the language used in the whole instrument to indicate that the question between the insurer and insured was one merely of good faith and honest dealing or of belief on the part of the assured...