Insurance Company v. Foley
| Decision Date | 01 October 1881 |
| Citation | 26 L.Ed. 1055,105 U.S. 350 |
| Parties | INSURANCE COMPANY v. FOLEY |
| Court | U.S. Supreme Court |
ERROR to the Circuit Court of the United States for the District of South Carolina.
In January, 1872, Foley obtained from the Knickerbocker Life Insurance Company of the city of New York a policy of insurance for $5,000, on the life of one Badenhop, his debtor to that amount. The premium required at the time and the stipulated annual premiums were paid. The profits arising upon them entitled the assured, in May, 1873, to a further insurance on the life of his debtor, to the amount of $36.03 and in June, 1874, to the amount of $39.36; and policies for these sums were issued to him.
Badenhop died in January, 1875; but the assured, being ignorant of the fact, paid the next annual premium. The present action, to recover the amount of the policies and of the premium overpaid, with interest, was commenced in a court of the State, and, upon application of the company, removed to the Circuit Court of the United States. The complaint alleges the issue of the policies, the interest in them of the plaintiff, the death of Badenhop, the proof thereof furnished to the company, the fulfilment by the plaintiff and the deceased of 'all the conditions' of the policies, the amount due, and its non-payment. It also alleges the payment of the annual premium after the death of the insured. A copy of the policies is annexed to the complaint. The first policy declares that it is issued upon the express condition that the application on file in the office of the company is an express warranty of the truth of the answers and statements contained in it, and that, if they are in any respect untrue, the policy is to be void and of no effect to any one. The additional policies declare that they are subject to the same conditions as the first.
In its answer the company sets up, among other things, as a defence, that the plaintiff and the insured did not make true and correct answers and statements to certain questions contained in the application for the first policy, in this, that to the questions, the answers given were 'Yes,'—when, in fact, he was a man of intemperate habits, thus conceraling by the answer his true habits, and making a false statement concerning thmem; whereby the policy became void.
On the point thus raised, whether the answers given as to the habits of the insured were true or false, the testimony offered was conflicting. On the part of the company, one witness testified that in 1871 and in the early part of 1872 he was the family physician of Badenhop; that at that time Badenhop was drinking hard; that during that year he had attended him for delirium tremens, and once or twice for indisposition, produced, 'as he thought,' from the excessive use of intoxicating drink; and that he 'regarded' him as a man of intemperate habits. But, on his cross-examination, he admitted that he did not know Badenhop intimately, had no relations with him other than professional, and saw him only when he attended him professionally, or met him occasionally in the street. Two other witnesses testified for the company,—one, that he was intimate with Badenhop; the other, that he had known him for several years, and that he was a very intemperate man; that they had frequently seen him under the influence of liquor; but neither of them stated when his acquaintance commenced, whether before or after the policy was issued.
On the part of the plaintiff several witnesses were called, who had known Badenhop intimately for many years, their acquaintance with him commencing before the policy was issued and continuing afterwards, and one of whom had been his partner in 1869 and 1870; and they all testified unqualifiedly to his being a man of temperate habits.
The defendant requested the court, among other things, to instruct the jury, 'That where, in a question whether the party assured is one of temperate habits at the time when he seeks to be insured, and has always been so, witnesses testify, from their own knowledge of the party and his habits, that he was not of temperate habits, their testimony is entitled to greater consideration by a jury than witnesses who testify otherwise, because they have not seen or known of such...
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Wadsworth v. State, 596
...conduct, to pursue which he has acquired a tendency from frequent repetitions of the same act.' Knicker-bocker Life Ins. Co. v. Foley, 1882, 105 U.S. 350, 354, 26 L.Ed. 1055, 1057. 'Character' is 'that by which a thing is specially known or distinguished; a quality, a property, a distinctiv......
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