Fell v. John Hancock Mut. Life Ins. Co.

• Citation: 57 A. 175,76 Conn. 494
• Court: Supreme Court of Connecticut
• Decision Date: 03 March 1904
• Parties: FELL et al. v. JOHN HANCOCK MUT. LIFE INS. CO.

57 A. 175

76 Conn. 494

FELL et al.

v. JOHN HANCOCK MUT. LIFE INS. CO.

Supreme Court of Errors of Connecticut.

March 3, 1904.

Appeal from Court of Common Pleas, Fairfield County; John H. Light, Special Judge.

Action by Delia Fell and others against the John Hancock Mutual Life Insurance Company. Verdict for plaintiffs, which was set aside on motion of defendant, and new trial granted. Plaintiffs appeal. Affirmed.

John J. Walsh, for appellants.

Edward P. Nobbs and Henry C. Stevenson, for appellee.

HAMERSLEY, J. By the express terms of the policy of insurance upon which this action is brought, the application for the policy is made a part thereof. The contract of insurance is based upon the statements in the application. The insured warrants that the representations and answers made in the application are strictly correct and true, and covenants that any untrue answer will render the policy null and void. Such a contract creates no liability on the part of the insurer if any one of the statements, the truth of which is thus warranted, is in fact untrue. Wood v. Hartford Fire Ins. Co., 13 Conn. 533, 514, 35 Am. Dec. 92; Kelsey v. Universal Life Ins. Co., 35 Conn. 225, 237. In an action on such a policy, it is incumbent on the plaintiff to aver the truth of statements thus made and warranted, and, if the defendant shall deny that averment in respect to any particular statement, the burden of proof is upon the plaintiff; and, unless the truth of the statement is established by a fair preponderance of all the evidence, the defendant is entitled to judgment Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 701, 52 Atl. 490.

It appears that William E. Fell, whose life was insured for the benefit of the plaintiffs, stated in his application, made on October 29, 1900, that his present occupation was that of a "lockmaker," and that he had never "been rejected or postponed by this or any other company." The plaintiffs alleged, in general terms, the truth of all the statements made in the application. The defendant denied this allegation in respect to the two statements mentioned. Upon trial to the jury, the contested issues of fact were limited to the truth of these two statements. Unless the jury should find, upon a fair preponderance of evidence, that each statement, when made, was strictly correct and true, the defendant was entitled to a verdict. The jury returned a verdict for the plaintiffs, and the defendant moved that this verdict be set aside, and a new trial granted, on the ground that the verdict was against the evidence. The court granted the motion. This appeal is from that decision, and the only reason assigned...