Hanf v. Nw. Masonic Aid Ass'n

• Decision Date: 08 April 1890
• Citation: 45 N.W. 315,76 Wis. 450
• Parties: HANF ET AL. v. NORTHWESTERN MASONIC AID ASS'N.
• Court: Wisconsin Supreme Court

76 Wis. 450

45 N.W. 315

HANF ET AL.

v.NORTHWESTERN MASONIC AID ASS'N.

Supreme Court of Wisconsin.

April 8, 1890.

Appeal from circuit court, Lincoln county; CHARLES M. WEBB, Judge.

The defendant, the Northwestern Masonic Aid Association, issued to Carl Hanf a certificate of life insurance in class No. 4, in a sum equal to $1.20 for each member of such class, but not to exceed $2,500. The certificate bears date April 27, 1881. Carl Hanf died May 2, 1888. This action was brought by his children, who are named in his application for the insurance as the beneficiaries thereof. One of them, E. F. Hanf, joined in bringing the action as well in his own right as the executor of the last will and testament of his father. The complaint contains averments showing that class No. 4 was sufficiently large to make the insurance $2,500. In his application for the insurance, Carl Hanf stated his age to be 49 years, and stated the date of his birth to have been June 29, 1831. Such application contains an agreement, signed by Carl Hanf and the agent of the insurance company, to the effect that if the application contained any misrepresentations, or if any fraudulent or untrue answers were made therein, the agreement for insurance should be null and void, and all moneys paid thereon forfeited to the association. The by-laws of the association require that applicants for membership should not be more than 50 years of age. The claim is contested on the ground that when he made such application Carl Hanf was over 50 years of age. The testimony on the question of age is stated in the opinion, as are also the material rulings of the court on objections to the admission of testimony. By direction of the court a verdict was rendered for the defendant. A motion for a new trial was denied, and judgment for defendant entered pursuant to the verdict. The plaintiffs appeal from the judgment.Flett & Porter and Bump & Hetzel, for appellants.

Curtis & Curtis, for respondent.

LYON, J., ( after stating the facts as above.)

If the testimony of the local agent of the defendant association, through whom the insurance was obtained, is competent, it proves conclusively that Carl Hanf was over 50 years of age when the certificate of insurance in suit was applied for and issued, to the knowledge of both him and the agent, and that at the solicitation of Hanf the agent conspired with him to misrepresent his age to the association in order to obtain the insurance; also that both knew the association would not issue the certificate if informed of the true age of the applicant. The truth of the last statement is proved by the fact that Hanf made an earlier application for insurance to the association, through the same agent, in which it was stated that he was born June 29, 1830, and was 50 years of age, and the application was rejected by the association for the sole reason that he was over the prescribed age. The learned counsel for plaintiffs submitted an elaborate and ingenious argument to show that, under section 4069, Rev. St., the agent was not a competent witness to prove the statements of Hanf. That section only excludes the testimony of a party to the action, or the person under whom he derives his title to or interest in the subject of the action, of transactions and...