Maier v. Fidelity Mut. Life Ass'n

• Decision Date: 02 February 1897
• Docket Number: 385.
• Parties: MAIER v. FIDELITY MUT. LIFE ASS'N.
• Court: U.S. Court of Appeals — Sixth Circuit

78 F. 566

MAIER v. FIDELITY MUT. LIFE ASS'N.

No. 385.

United States Court of Appeals, Sixth Circuit.

February 2, 1897

James H. Pound, for plaintiff in error.

Alfred Lucking, for defendant in error.

Before HARLAN, Circuit Justice, and TAFT and LURTON, Circuit Judges.

HARLAN Circuit Justice.

This is an action upon a policy of life insurance for $10,000, issued September 30, 1892, by the Fidelity Mutual Life Association of Philadelphia, upon a written application to that association by the assured, Martin Maier, of Detroit, Mich. The beneficiary named was the wife of the assured, the present plaintiff in error.

In the answers to questions embodied in the application, which was made September 26, 1892, it was stated, among other things that the assured was then in 'good health,' and 'free from any and all diseases, sicknesses, ailments, or complaint, trivial or otherwise'; that he had 'never had or been afflicted with any sickness, disease, ailment injury, or complaint'; that the last physician he had consulted, or who prescribed for him, was Dr. Morse Stewart of Detroit, two years previously, and that his ailment then was 'toothache'; that he had not consulted, or been prescribed for by, any other physician or medical man during the previous 10 years; and that he did not use, and never used, spirits, wines, or malt liquors, and had always been temperate and sober.

The policy recites that it was issued in consideration of the application, 'made part hereof, and a copy of which is hereto attached,' and subject to all the requirements stated, 'and the conditions hereon indorsed.' One of the conditions indorsed on the back of the policy is that, 'if any statement contained in the application on which this policy is issued be untrue in any respect, then this policy, except as herein provided, shall be ipso facto null and void.'

The application thus concluded:

'I hereby agree and bind myself as follows: That the statements above made or contained, by whomsoever written, are material to the risk and warranted to be true; that I have signed this application in my own handwriting; that * * * all provisions of law in conflict with or varying the terms of this agreement and policy applied for are hereby expressly waived, and the policy issued hereon shall not become binding on the association until the first payment due thereon has been actually received by the association on its authorized agent during my lifetime and good health; that no verbal statement, to whomsoever made, shall modify this contract, or in any manner affect the rights of the association, unless the same be reduced to writing, and be presented to and approved by the officers of the association at the home office, in Philadelphia, no agent or examiner having any power or authority to make or alter contracts, waive forfeitures, or grant credit; that * * * this application shall be the sole basis of contract with the association, if a policy be issued hereon; and that, if any concealments or untrue statements or answers be made or contained herein, then the policy of insurance issued thereon and this contract shall be ipso facto null and void; provided, always, that, if the necessary payments be made to keep said policy in force, it shall be incontestable, except as herein set forth.

'Dated at Detroit this 26th day of September, 1892. Martin Maier.

'In presence of D. A. Rothschild, Soliciting Agent.'

Immediately below the attestation to the application the following direction was printed with a rubber stamp:

'Review the answers to questions given in this copy of your application, and, if any correction has been made, advise the president of the association.'

The plea was the general issue, with notice, according to the Michigan practice, that the defendant would give in evidence, by way of defense, the above application of the assured, which, it was alleged, was duly signed by him and delivered to the defendant, and 'on the faith of which, and in full reliance upon the statements thereon made, the said defendant did issue to the said Martin Maier the policy of insurance declared upon.'

The notice further stated that the company would show on the trial that the application and statements therein were false and fraudulent in many particulars; among others, in the following: That Maier was not at the time of his application in good health, and free from any and all sickness, ailments, or complaints, but was in bad health, and suffering from epilepsy, attacks of an epileptoid character, fits, convulsions, habitual constipation, alcoholism, softening of the brain, nervous prostration, neuresthenia and kindred troubles, and other diseases; that he had been afflicted with numerous sicknesses, diseases, ailments and injuries, including those above specified, and with a number of injuries, among others, injuries received on or about January 19, 1887, August 2, 1889, and July 10, 1890, all of which were serious; that he had consulted and been prescribed for by numerous physicians during the period named in the application,-- among others, by Dr. George Duffield, Dr. James Campbell, Dr. Wilcox, Dr. W. H. Poole, Dr. Yarnell, and by others unknown to defendant, all within said period; that the statement that he had consulted Dr. Morse Stewart, about two years prior to his application, for toothache only, was false and fraudulent, as he had consulted said Stewart, who prescribed for him, within two years of that date, for an attack of epilepsy, or an attack of an epileptoid character, and likewise had been treated for different serious troubles during the previous 10 years by that physician, who had attended and prescribed for him on various occasions during that period; that the statement made by said deceased on his application, that he did not then use, and never had used, spirits, wines, or malt liquors, and had always been temperate and sober, was false and fraudulent, in that he had used spirits, wines, and malt liquors, and each of them, and had not always been temperate and sober.

It appeared in evidence that Maier made the application for insurance at the suggestion of one Rothschild, who testified that he was at that time working for Mr. Montgomery, the Detroit agent of the defendant. But it does not appear that Montgomery had any knowledge of Rothschild's effort to secure an application from Maier. Rothschild testified:

'I met Mr. Maier in the street, and I asked him to give me his application. He was in a hurry, and we stepped in a clothing store on Michigan avenue, and he says, 'Hurry up. I haven't much time.' I asked him a few questions. He finally said, 'Well, you fill them up yourself.' I asked him about drinking, and he said, 'I am not drinking anything at present, you understand,' so I didn't put that in, and all the other questions accordingly. * * * He was in a hurry, only had two or three minutes to write it up, and he says, 'You finish it.' He says, 'I will sign my name now, and you finish it, and I will go away.' * * * Q. What, if anything, did you say to him about his having been afflicted with sickness or disease or ailments? A. He told me he had some toothache, and I put it down. Q. What, if anything, did you say to him as to who treated him for it? A. He said, 'Dr. Morse Stewart,' and I put that down. * * * Q. What, if anything, did you say to him about intoxicating liquors? A. I knew he did not drink any more at that time. Q. Did you, or did you not, say anything to him about it? A. Yes. Q. At that time? A. Well, no, I didn't, as he told me he didn't drink anything at the time when I took the insurance. Q. Did you say that Mr. Maier told you so at that time? A. I don't know as he did. I knew he didn't drink anything at that time. Q. Now, my question is, did he say anything on that subject at that time? A. No, he didn't say anything. ' On cross-examination he was asked if he did not know that Maier had been to the Keeley Cure for drunkenness, and he answered: 'No, sir, I didn't know; I heard he was there. ' Being asked whether he did not know that Maier had been convicted in the police court for drunkenness, he answered: 'I don't know anything about it. I knew when he came out of the Keeley Cure. ' Again: 'Q. And he did not use, and had never used, spirits, wines, and malt liquors, and had always been temperate and sober. Now, just what did he say to you about that? A. Only asked him whether he was drinking, and he says, 'No,' he didn't drink any more, and I cut that off. I knew he was not drinking and I didn't think it was material to put in that.'

The evidence of Rothschild in connection with other proof in the cause leaves no doubt that if the facts as to Maier's habits and condition had been fairly disclosed, in answer to the questions contained in the printed application, the company would have declined to issue the policy. Rothschild, therefore, according to the weight of the evidence, suppressed the material facts; and, by reason of such suppression, Maier obtained the policy, and the unfaithful solicitor realized his commissions.

Nor can it be doubted, under the evidence, that Maier himself knew that he was not a proper subject of life insurance. It was shown from official records that on the 10th day of September, 1891, July 1, 1892, and September 10, 1892 respectively, he was tried in the police court of Detroit, and found guilty of drunkenness, and that on the 26th day of September, 1892,-- the very day of his application for insurance,-- a warrant was taken out charging him with being a disorderly person, in that he was a tippler, and, having been tried on the succeeding day in that court, was found guilty, and fined $7 and costs, $30, or 45 days in the Detroit house of correction. The fine and costs were...