Hennessy v. Metro. Life Ins. Co.

• Citation: 74 Conn. 699,52 A. 490
• Court: Supreme Court of Connecticut
• Decision Date: 06 June 1902
• Parties: HENNESSY v. METROPOLITAN LIFE INS. CO.

52 A. 490

74 Conn. 699

HENNESSY

v. METROPOLITAN LIFE INS. CO.

Supreme Court of Errors of Connecticut.

June 6, 1902.

Appeal from court of common pleas, New Haven county; Leverett M. Hubbard, Judge.

Action by Margaret Hennessy against the Metropolitan Life insurance Company of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Henry Stoddard, for appellant.

Charles S. Hamilton and Robert E. De Forest, for appellee.

BALDWIN, J. The complaint, to which the policy of insurance which is the subject of the action is annexed, alleges that the death of James J. Hennessy, the insured, "was not caused by any cause excepted in the policy," and that he "duly fulfilled all the conditions of said insurance on his part." A copy of the application for insurance is made by the policy a part of the contract This application stated and warranted among other things, that no one of the parents of the insured ever had consumption, and that this was wholly true, and that any untrue answer would render the policy null and void. The policy is expressly made "subject to the conditions set forth," one of which is that, if any statement in the application is not true, the policy shall be void. The answer, in a "first defense," admitting the issue of the policy and the death of the insured, denied the rest of the complaint, and in a "third defense" set up that the father of the insured, prior to the making of the application, had had consumption, and that the statement in the application to the contrary was untrue. Another breach of warranty was also pleaded separately as a "second defense." The first defense, as originally filed, contained a paragraph denying "particularly the statement in the complaint that said James J. Hennessy and the plaintiff duly fulfilled all the conditions of said insurance on their part in this: that in said policy and application therefor the insured and assured stated and warranted" that no one of his parents ever had consumption, and averring that this statement was untrue. The plaintiff moved that this paragraph be expunged, as being an attempt "under the form of a pretended denial to set up and plead matter of defense, and thereby attempt to compel the plaintiff to prove affirmatively that she did not violate any of the multifarious conditions of the policy on which this suit was brought; and because said mode of pleading is entirely irregular, and an attempt to shift the burden of proof upon the plaintiff in a matter where it rests upon the defendant; and because the matters set up in paragraph 3 can be legally pleaded only as a matter of an affirmative defense." This motion was granted.

It was bad pleading to split the answer up into three separate defenses. Each of them specified one or more breaches of warranty on the part of the insured. If there were such breaches which had not been waived, or which the defendant was not estopped to set up, it followed that the action could not be maintained. The defense then was essentially a single one, namely, that by reason of certain breaches of conditions precedent the policy had never attached. The paragraph of the complaint averring a fulfillment of all these conditions could not properly be denied in toto, unless the defendant intended in good faith to controvert the truth of every one of the numerous statements which were made warranties by the terms of the policy. Denials must not only meet, but "fairly meet," the substance of the allegations denied. Rules of Court, § 162 (26 Atl. vii, rule 4, § 7); Greenthal v. Lincoln, 67 Conn. 372, 377, 35 Atl. 266. The paragraph expunged from the first defense indicated an intention to rely particularly on the falsity of one specified statement in the application, and substantially followed form 397 for answers as given in the Practice Book. There was error in expunging it. The practice act was designed to modify the rules of common-law pleading so as to bring into the record a plain statement, intelligible to any ordinary man, of the real questions which the parties desire to bring to the attention of the court and jury. The paragraph really objectionable was not the one expunged, but that which denied all the allegations of the complaint which were not specifically admitted. The insertion of the former would have justified the court of common pleas in calling upon the defendant to state whether it intended in good faith to controvert the truth of any other statements than those which the answer particularly specified, and, if such intention were not disclosed, in requiring a modification of the latter paragraph. It might also have fairly been considered as limiting by implication the general terms in which that was couched. Insurance Co. v.' Schneider, 131 U. S. clxxii, 25 L. Ed. 694.

The court should also have ordered a consolidation of the three defenses, or disregarded the attempt to separate them' in its charge to the jury. Simonds v. Railway Co., 73 Conn. 513, 48 Atl. 210. Instead of this, they were instructed that with reference to the issue raised by the "first defense" it was the duty of the plaintiff to show by a preponderance of evidence that the insured fulfilled all the conditions of the policy on his part, but that with reference to the "third defense" the burden of proof was on the defendant to establish the alleged breach of warranty by a fair preponderance of evidence. Error is assigned upon this portion of the charge relating to the third defense. That defense rested on a single breach of warranty, which was specifically set forth. It did not otherwise controvert the complaint. The reply, admitting the statement set up, denied that it was false. On the issue thus raised the plaintiff had the same burden of proof that rested upon her with reference to the first defense. The third defense set up nothing new. It was not in confession and avoidance, but purely in denial. The plaintiff, by averring a fulfillment of all the conditions of her policy on the part of the insured, had averred that every statement in the application was true. The first defense denied this altogether. In the absence of any motion to make the denial more specific, or to strike it out as sham pleading, she was therefore bound to prove her averment. The second and third defenses each denied it as to a particular statement, the truth of which was an essential condition of the policy. She was, therefore, bound to prove the truth of each of these statements, for, if either were untrue, the conditions of the policy had not been fulfilled. Biddle, Ins. 2, § 1247. There are authorities of weight in favor of the position that in an action on such a policy, where the falsity of a statement which was warranted to be true is pleaded in defense, the burden of proof is on the defendant. The main reason for so holding seems to be that it would be difficult, if not impossible, for the plaintiff to show that each of the many statements that might be so brought in question was true. Insurance Co. v. Ewing, 92 U. S. 377, 23 L. Ed. 610. But no mere argument from inconvenience can be allowed to abrogate in its application to a particular case so fundamental a rule of judicial procedure as that which declares that he who seeks the aid of a court must state a case which apparently entitles him to it, and be prepared to prove what he thus states, should it be denied. the making of the statements in the application for the policy preceded the issue of the policy, and their truth was made the condition of its coming into effect. The plaintiff was bound to allege, as she did, that the insured fulfilled this condition. Gould, PI. c. 4, § 13; 'Practice Book, form 154; 2 Greenl. Ev. § 376. So far as this allegation was denied, she was, therefore, necessarily bound to support it by proof or presumption. While general in form, it was equivalent in legal effect to a successive series of averments, each referring specifically to a particular statement in the application, and asserting that it was true. The third defense admitted that all but one of these statements were true. As to that it made no assertion of any new fact, but simply denied what the insured had asserted. As to that, therefore, the burden of proof remained on the plaintiff. Such a burden is undoubtedly a heavy one to support; but this is of no legal consequence if the contract in suit be such as to require it to be imposed. In a leading case upon a similar policy, which came to this court, the jury were instructed by the superior court that the statements in the application were warranties of fact, which must be proved true in all particulars, and that one of the questions on Which the case must turn was whether the plaintiff had proved their truth to their satisfaction. Kelsey v. Insurance Co., 35 Conn. 225, 231. In support of a motion for a new trial counsel for the insured argued that "the character of the statements in the application is such that a preliminary proof of their literal truth is substantially impossible." Id. 233. We, however, held, in affirming the charge as given, that their truth was "as much a matter of contract obligation on the part of the insured, and conditions upon which the policy...