Krajewski v. W. & S. Life Ins. Co.

• Decision Date: 03 January 1928
• Docket Number: No. 85.,85.
• Citation: 241 Mich. 396,217 N.W. 62
• Parties: KRAJEWSKI v. WESTERN & SOUTHERN LIFE INS. CO.
• Court: Michigan Supreme Court

241 Mich. 396

217 N.W. 62

KRAJEWSKI

v.WESTERN & SOUTHERN LIFE INS. CO.

No. 85.

Supreme Court of Michigan.

Jan. 3, 1928.

Error to Circuit Court, Wayne County; Dingeman, Judge.

Action by Alice Krajewski against the Western & Southern Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before the Entire Bench. Cavanaugh & Burke, of Ann Arbor (Henry C. Bogle, of Detroit, of counsel), for appellant.

Harry J. Lippman, of Detroit, for appellee.

WIEST, J.

Plaintiff, beneficiary under a policy of life insurance issued by defendant to John Krajewski (her then husband) in May, 1923, had judgment in the circuit, and defendant reviews by writ of error.

Defendant pleaded lapse of the policy for nonpayment of premium and fraud perpetrated by a false representation in its procurement. The jury found the premium was paid, and we cannot hold the verdict on that question against the weight of evidence.

In the application for the policy, Krajewski stated that he had not at any time used stimulants to excess. This representation, it was claimed by defendant, was material and false. Plaintiff claimed it was true. The policy was dated May 16, 1923. The insured died December 13, 1923; cause of death given in the coroner's certificate, ‘acute dilatation of the heart.’ There was no autopsy.

As evidence that the insured used stimulants to excess, there was introduced at the trial a sworn bill for divorce, filed by plaintiff against the insured twenty-one days after the policy was issued. In that bill plaintiff alleged that:

‘* * * He also during the greater portion of the married life of the parties hereto having indulged in intoxicating liquors to excess, your plaintiff showing that hardly a week has past (passed) during the past five years or more of her life with said defendant herein, that he has not become grossly intoxicated. * * *

‘New Year's Eve, 1923, the said defendant returned to his home in a drunken and stupefied condition, together with a police officer. * * *

‘Your plaintiff further shows that said defendant herein, at the date hereof and for some time in the past, has been engaged in an employment at the Ford Motor Company, he for considerable time past and regularly pay days taking his money and visiting saloons and cafés with his boon companions, * * * he almost regularly on each pay day returning to his home at the hour of midnight or early hours of the morning in a drunken and intoxicated condition, and with funds almost exhausted.’

June 13, 1923, in the divorce case, plaintiff filed a verified petition for temporary alimony, in which she stated:

‘Deponent further says that, since service of said summons and injunction as aforesaid, said defendant herein has continued in an intoxicated condition.’

Plaintiff testified at the trial that her husband was not a drunkard and did not use intoxicating liquors to excess, and claimed she gave the facts in her action for divorce to her attorney through an interpreter, and made no claim that her husband was ‘a user of intoxicating liquor.’ The interpreter mentioned died before the trial. The bill for divorce also alleged extreme and repeated cruelty, and the decree was granted on that ground. The allegations of plaintiff in the divorce case were admissible against her in this suit upon the policy. In a suit on an insurance policy by the beneficiary, the falsity of a representation made by the insured in procuring the policy may be shown by admissions of the beneficiary.

As stated in Pope v. Allis, 115 U. S. 363, 370, 6 S. Ct. 69, 72 (29 L. Ed. 393):

‘When a bill or answer in equity or a pleading in an action at law is sworn to by the party, it is competent evidence against him in another suit as a solemn admission by him of the truth of the facts stated. Studdy v. Sanders, 2 D. & R. 347; De Whelpdale v. Milburn, 5 Price, 485; Central Bridge v. Lowell, 15 Gray [Mass.] 106;Bliss v. Nichols, 12 Allen [Mass.] 443;Elliott v. Hayden, 104 Mass. 180;Cook v. Barr, 44 N. Y. 156; Taylor on Evidence, § 1753 (7th Ed.); Greenleaf, Evidence, §§ 552, 555.’

See, also, Behr v. Conn. Mut. Life Ins. Co. (C. C.) 4 F. 357, a case very much like the one at bar.

Such admissions ‘are received in evidence because of the great probability that a party would not admit or state anything against himself or his own interest unless it were true.’ Cook v. Barr, 44 N. Y. 156.

Plaintiff had a right to explain her claimed admissions, but, when she placed the blame on an interpreter of her selection, and now dead, she encountered the salutary rule stated as follows in 10 R. C. L. 930:

‘When two persons who speak different languages, and who cannot understand each other, converse through an interpreter, they adopt a mode of communication in which they assume that the interpreter is trustworthy, and each makes his language presumptively their own. Each acts upon the theory that the interpretation is correct. Each impliedly agrees that his language may be received through the interpreter. If nothing appears to show that their respective relations to the interpreter differ, they may be said to constitute him their joint agent to do for both that in which they have a joint interest. They wish to communicate with each other, they choose a mode of communication, they enter into conversation, and the words of the interpreter, which are their necessary medium of communication, are adopted by both, and made a part of their conversation as much as those which fell from their own lips. They cannot complain...