Guardian Mut. Life Ins. Co. of N.Y. v. Hogan

• Decision Date: 30 September 1875
• Citation: Guardian Mut. Life Ins. Co. of N.Y. v. Hogan, 80 Ill. 35, 1875 WL 8703, 22 Am.Rep. 180 (Ill. 1875)
• Parties: GUARDIAN MUTUAL LIFE INS. CO. OF NEW YORKv.PATRICK HOGAN.
• Court: Illinois Supreme Court

80 Ill. 35

1875 WL 8703 (Ill.)

22 Am.Rep. 180

GUARDIAN MUTUAL LIFE INS. CO. OF NEW YORK

v.PATRICK HOGAN.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.

On December 31, 1868, the plaintiff in error, a corporation in New York, granted to John Hogan, of Rockford, Illinois, a policy of insurance, No. 16,870, on his life, for $10,000, to be paid to his son, Patrick Hogan, who resided some 17 miles from Rockford, in Ogle county, on the death of the father, subject to the conditions of the policy.

The circumstances under which the policy was issued were, that J. C. Mayberry was the general agent of the company in 1868 and 1872, residing at Rockford. L. E. Herrick was a solicitor of insurance, under Mayberry, and went out in company with one Parkison, another insurance solicitor, from Rockford to Ogle county, to solicit Patrick Hogan to take insurance on his own life. He declined to take any, but originated a suggestion for a policy on his father's life, John Hogan, an old man, living at Rockford, if it was practicable. There were doubts of its practicability, but, after an interview of some hours, an application was made out by Herrick, to be delivered to Mayberry. Herrick knew nothing of John Hogan, except from Patrick's statements, neither he nor Mayberry ever having seen John Hogan till long after the policy was issued. The application was taken away by Herrick, and soon after delivered by him to Mayberry. The signature of John Hogan appeared to the application, and, as may be inferred from the evidence, was in the handwriting of Herrick. Mayberry forwarded the application to New York, to the company, and received therefrom the policy, and mailed it to Patrick Hogan, Mayberry never having seen or had any communication with Patrick up to that time. He never collected any premiums from John Hogan, or had any communication with him. At a subsequent time, Mayberry requested Patrick Hogan to change the policy into a Tontine policy, stating to him that the company were changing all their policies to Tontine policies, and having gone to his house to see him for the purpose. There was an arrangement that Patrick Hogan would call and see about it. Some days or weeks afterward, he came into Mayberry's office, and, at the latter's request, signed the following letter, the signature, “John Hogan,” being written by Patrick Hogan, viz:

“ROCKFORD, ILL., Oct. 28, 1872.

J. C. MAYBERRY, ESQ., State Agent, Rockford:

DEAR SIR--Please obtain for me a Tontine policy for ten thousand dollars in the Guardian Mutual Life Insurance Company of New York, as I wish to surrender policy No. 16,870, and accept its return value to apply on the premium on the new policy, reference being had to my application for policy No. 16,870.

+-------------------------+
                ¦Yours truly,¦JOHN HOGAN.”¦
                +-------------------------+
                

Thereupon, Mayberry himself filled out and forwarded to New York what is called a “dummy application,” for the new policy, Patrick Hogan doing nothing more than to sign the letter as above. The company thereupon issued a new policy on the Tontine plan, called a “Tontine saving policy,” No. 33,754, dated November 7, 1872. This policy, like the first, purports to insure the life of John Hogan in the amount of $10,000, for the sole use of his son, Patrick Hogan, and contains the recital that it is granted “in consideration of the representations made in the application for policy No. 16,870, which is hereby made a part of this contract.”

John Hogan died from the effects of taking arsenic, August 26, 1873. This suit was thereafter brought by Patrick Hogan against the insurance company, upon this second policy, the “Tontine saving policy,” wherein he recovered in the court below a verdict and judgment for $10,500, and the defendant appealed to this court.

Messrs. SLEEPER & WHITON, for the plaintiff in error.

Mr. WILLIAM LATHROP, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

It is first insisted, as a ground for reversing the judgment, that the averments in the declaration are not sufficient to sustain the judgment, upon the evidence. The declaration was framed precisely as if John Hogan had, as the policy purported, in fact procured the insurance himself for the benefit of Patrick Hogan, and so it is not averred, as it need not be in such case, that Patrick Hogan had any interest in the life of John Hogan.

But a different rule prevails where one procures insurance on the life of another. In such case the plaintiff must aver, in his declaration on the policy, that he had an insurable interest in the life insured, and prove the same affirmatively, as a part of his case. And as the fact here is, that Patrick Hogan procured the insurance in question upon the life of John Hogan, without the latter's knowledge or consent, and that Patrick Hogan alone, without the knowledge of John Hogan, paid whatever premiums were advanced upon the policy, it is insisted the declaration is not sufficient to sustain the judgment upon the evidence, for want of the averment that Patrick Hogan had an insurable interest in the life of John Hogan.

Although it may be otherwise upon the proof upon any question as to the validity of the policy, as respects the form of the declaration, we regard the company as concluded from making any such objection. With knowledge of the facts, the agents of the company allowed, and were instrumental in causing, the transaction of the insurance to assume the form which it did, and in framing the declaration upon the policy, the plaintiff was justified in treating it according to its purport, and, upon a mere question of pleading, the company should not be heard to make the objection, that the transaction was different, in fact, from what it purported to be by the policy. And in this connection may be answered another point made, that the application was a fraud on the company, in not disclosing that it was really Patrick Hogan's application, when it purported to come from John Hogan. The whole conduct and dealing of the agents with Patrick Hogan, throughout the entire affair, in all its different stages, show too much of privity and knowledge on the part of the agents of the company in respect of the actual facts, to expose the transaction to this imputation.

It is further objected, on this subject of pleading, that, inasmuch as, according to the recital of the policy sued on, it was issued “in consideration of the representations in the application for policy No. 16,870, which is hereby made a part of this contract,” the declaration should have set out the whole transaction, beginning with the original insurance, and have counted upon both policies. A good cause of action was shown by declaring upon the policy sued on alone, and we regard it as unnecessary to have noticed in the declaration the former policy, or application. If the representations in the former application furnished any matter in defeat of the right of action, it was open to the defendant to avail of it in defense.

It is said, if this position taken is not correct, then the court below erred in permitting the original policy and the payments made under it, to be given in evidence on the trial. But this was done, not in support of the action, but to meet the matter of defense set up, of suicide. Had such defense been established, the limit of recovery, by the provisions of the policy, would have been the amount of premiums paid. In view of this defense, the proof, we think, was properly made of the whole amount of the premiums which had been paid under both the policies.

The policy in suit, as also the original one, contained the provision that, “should the death of the assured be caused by any act of self-destruction whatever, sane or insane, then the said company shall pay to the assured the full amount of the premiums that shall have been paid hereon, but no further sum whatever, and then, and in that case, the policy shall cease and determine.”

It clearly appeared that John Hogan died from the effects of arsenic, either purposely or inadvertently taken by himself. It was a main ground of defense, that the poison was taken designedly, and the death caused by suicide. Evidence was adduced tending to its proof.

The court below gave to the jury, for the plaintiff, this instruction:

“And the court further instructs the jury that, in case of death, and the evidence leaves the matter in doubt whether the deceased came to his death by an act of...