Hews v. Equitable Life Assur Soc of United States

• Decision Date: 06 February 1906
• Docket Number: 52.
• Citation: 143 F. 850
• Parties: HEWS v. EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

143 F. 850

HEWS v. EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES.

No. 52.

United States Court of Appeals, Third Circuit.

February 6, 1906

D. M Hertzog, for plaintiff in error.

Willis F. McCook, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS Circuit Judge.

This writ of error has brought up the record in an action which was instituted by the plaintiff in error against the defendant in error, upon a policy dated November 9, 1903 insuring the life of Samuel R. Hews, who was the plaintiff's husband. The defenses were that the policy had been fraudulently procured, and that the application contained statements which were warranted to be true, but which in fact were untrue. The verdict was for the defendant, and it was amply justified by the evidence. We, however, are not concerned with the action of the jury, but with that of the court, and the errors averred to have been committed by it are said in the plaintiff's brief to present the following questions:

'First. Was it proper to admit in evidence statements concerning the condition of the health of the insured made by him to a physician while being treated a long time prior to his application for the policy, and also like statements made to another person, not a physician, several years prior to the application?

'Second. Did the paper signed by the insured containing the questions of the defendant company's examining physician and the answers of the insured thereto preliminary to the issuing of the policy form part of the 'Application for Insurance'? If so, was it error to admit that paper in evidence; no copy thereof having been attached to the policy?

'Third. Is it material to the issue to determine whether or not there was a fraudulent intention on the part of the insured in answering the questions set forth in his application? If so, is the finding of such intent a question for the court or for the jury?'

1. Dr. Taylor, a witness called for the defendant, was a resident physician of the 'Keeley Institute,' in the city of Pittsburgh. He testified that he had there treated Samuel R. Hews for alcoholism in April and May, 1903, and again in September of the same year. He produced two sets of papers, one of which related to the first and the other to the second of these occasions; and each of them, he said, was 'a record taken at the time that is kept on file. ' The defendant first offered these papers as a whole; but, upon objection made, it limited the offer to such part of them as had been signed by S. R. Hews, and that part the court admitted. Jacob Morgan, called for the defendant, was, against the plaintiff's objection, permitted to testify that S. R. Hews had told him in 1896 that he then had diabetes. To the testimony of these two witnesses, and to the statements signed by Hews and produced by Dr. Taylor, the first of the questions which we have quoted from the plaintiff's brief appears, from what there follows, to refer; and the grounds which have been mainly relied on to support the contention that evidence, either oral or documentary, of the declarations of Hews respecting the state of his health and his habits as to temperance, should not have been admitted, are that they were made at a time too remote from the time of the application to be material, and that, because the policy was 'in favor of another,' evidence of any declaration made by the insured should have been excluded as hearsay. These are the only points which upon this branch of the case, seem to us to be serious enough to call for discussion, and to them we now direct our attention.

The policy was issued to Samuel R. Hews, and though it was made payable to his wife, if living at his death, subject to his right to change the beneficiary, still the contract was with him, and if he secured it by fraud, it was void, and not enforceable either by him or her. The fraud alleged was that both in his application and in his answers to the company's medical examiner, Hews had made material statements of fact which were false, and which he knew to be so. In the former he said, 'Nor have I been intemperate, or had any serious illness or disease, except diseases incident to childhood,' and in the latter, that he had never been affected with 'any serious disease, injury, or infirmity,' and that his practice as regards the use of alcoholic beverages was 'an occasional glass of beer,' and that he never had been a 'free-drinker,' and had never taken 'treatment for alcoholic or narcotic habit. ' Upon the question whether these statements were consciously untruthful, the previous admissions by Hews...