McClain v. Provident Sav Life Assur Soc, of New York

• Decision Date: 10 June 1901
• Docket Number: 33.
• Citation: 110 F. 80
• Parties: McCLAIN v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.
• Court: U.S. Court of Appeals — Third Circuit

110 F. 80

McCLAIN v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.

No. 33.

United States Court of Appeals, Third Circuit.

June 10, 1901

J. H Brinton, for plaintiff in error.

Francis Rawle, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

Rebecca T. McClain, the plaintiff in error, is the beneficiary named in two policies of insurance taken out by her husband Isaac E. McClain, on his life, for $5,000 each, bearing date May 1 1899, and issued by the defendant company on an application signed by the insured, dated April 27, 1899. Decedent died of cancer of the stomach on October 11th following. Due proofs of death were made and submitted to the defendant, who refused to pay the insurance on the ground that certain answers to questions contained in the application were warranted by him to be true, when in fact they were untrue whereupon an action of assumpsit by the beneficiary and plaintiff in error was brought in the court below against the defendant for an alleged breach of the contract contained in said policies.

The applications for the policies were made and signed by the insured, upon the printed blanks of the company, and consisted of two parts,-- the first of printed questions and statements, to be answered and subscribed to by the applicant, other than those relating to his physical condition and habits of life. Part 2 is headed, 'Statements to the Medical Examiner,' and consists of questions relating to the health and physical condition of the applicant, and to which categorical answers of yes or nor are written. In part 1 of the said application is contained the following stipulation:

'It is hereby agreed * * * that all the statements contained in part I. and part II. of this application, by whomsoever they be written, are warranted to be full, true, and complete, and, with the stipulated premiums, shall be the sole consideration of the contract with the society, if any policy or policies be issued, reinstated, or renewed thereon, and that if any concealment or fraudulent or untrue statement be made, or it at any time any covenant or agreement herein made shall be violated, said assurance shall be null and void, and all payments made or accepted on account thereof shall be forfeited by the society, except to the extent as provided in the policy.'

Among many printed questions in part 2 of the application is the following:

'(15) Have you now, or have you ever had, any of the following? Answer yes or no as to each. If yes in any case, give particulars under 18 below.'

Then follows the list of 50 or 60 diseases or disorders, to all of which the answer appended is 'No,' except as to typhoid fever, which is, 'Yes; about 13 years ago.' Among the diseases or complaints to which the answer 'No' is appended are, 'Cancer or tumor?' and 'Dyspepsia?' At the end of part 2 of the application is the following:

'I hereby declare that I have read and understand all the above questions and the answers thereto, and they are hereby made part of my application for assurance by the Provident Savings Life Assurance Society of New York, and I hereby warrant said answers as written to be true, and that I am the person described above and in part I. of this application signed by me.'

Each of the two policies which were issued upon this application contains the following:

'This assurance is granted in consideration of the statements and agreements in the written and printed application for this policy, which is hereby made a part of this contract and of the payment in advance,' etc.

There was testimony at the trial before the jury that in 1897 the deceased had paid four visits to a specialist on the diseases of the digestive organs, and was treated by him for catarrh of the stomach; that in January, 1898, he took a trip to Europe, partly for pleasure and partly for his health, he being run down by reason of continued attention to business, according to his wife's statement; that he consulted Dr. Stirk, with whom he was on terms of intimacy,-- keeping his horse in his (Dr. Stirk's) stable,-- three or four times in February and March, 1898, in regard to indigestion, but it does not appear to have been considered serious, either by himself or the physician; that he was a man stalwart and strong in appearance, taking much exercise, and apparently in robust health. To the twenty-first question contained in part 2 of the application, which was, 'When and by what physician were you last attended, and for what complaint?' the answer written is, 'Had no medical attendance.'

Upon the testimony in full, as outlined above, it was contended by the defendant that the insured had made untrue answers as to his having had dyspepsia, and also as to the question last recited, wherein he was asked by what physician he was last attended. It was further contended before the court below that, under the clauses of the contract of assurance above recited, these answers were in the nature of literal warranties, and as such binding upon the insured, irrespective of the bona fides with which they may have been made, and of their materiality to the risk. In this state of the case, the learned judge of the court below, at the conclusion of the testimony, asked the jury to find a special verdict on certain questions of fact submitted to them, with general instructions in regard to the same, reserving the decision of certain questions of law applicable to the facts as found, which might be determinative of the controversy. After stating the uncontroverted facts of the case, such as the proof of the policies and the applications accompanying the same, the death of the insured, and the filing in proper form of the proofs thereof with the defendant company, and that his death was caused by cancer of the stomach and adjacent organs, the following questions were submitted in writing to the jury for their consideration and determination. In so submitting them, the learned judge accompanied the statement of each question with an explanatory charge, in which he fully set forth the nature and requirements of the submission, directed their attention to the testimony bearing on each question, and made plain his opinion that the questions submitted were concerned entirely with matters of fact, as to which the findings of the jury were a necessary basis for the judgment of the court. The questions thus submitted are fully set forth in the special verdict of the jury returning the answers thereto, which is as follows:

'In May, 1899, the deceased took out two policies of insurance in the defendant company, each of $5,000. These policies and the application upon which they are based are made part of the verdict. On the following October 9th the deceased died, and within the proper time proofs of death in the proper form were filed with the defendant company. His death was caused by cancer of the stomach and adjacent organs.'

In addition to the above facts, the jury gave the following answers to questions asked by the court:

'(1) On April 27, 1899, when the application was made, was the present and usual health of the deceased sound and good? A. Yes. (2) If not, did he have the disease of cancer or of dyspepsia or both diseases? A. . . . Had he previously had either disease or both diseases? A. Dyspepsia or indigestion at times. (4) If he had either or both at the time of applying or had previously had either or both, was this fact material to the risk? A. No. (5) When the application was made, did the deceased have a usual medical attendant? If so, who was he? A. No. (6) Had he been attended by a physician before April 27, 1899? If so, who was the last physician, and for what complaint did he attend the deceased? Was it for a temporary ailment not material to the risk, or for a disease or disorder that was material to the risk? A. Yes; attended by Dr. Stirk for temporary indigestion, not material to the risk. (7) In making each answer contained in his application, did the deceased act in good faith towards the company, setting down fully and completely what he honestly believed to be true? Or did he intentionally conceal from the company any fact material to the risk, or fraudulently make any untrue statement? A. Yes; he acted in good faith, and did nothing to deceive the company.

'The principal of the two policies in suit, with interest to date, amounts to $10,260. If upon the following special verdict the court shall be of opinion that the plaintiff is entitled to recover, we find in her favor in the said sum of $10,260. Otherwise we find in favor of the defendant.

'Henry B. Cox, Jr., Foreman.'

The record then proceeds as follows:

'And thereupon counsel for the said plaintiff did then and there, to wit, on the 14th day of April, A.D. 1900, move the said court to enter judgment on said verdict in favor of the said plaintiff and against the said defendant in the sum of ten thousand two hundred and sixty dollars. And thereupon, to wit, on the 16th day of April, A.D. 1900, counsel for the defendant moved the court to enter judgment in favor of the defendant and against the plaintiff, and also at said time filed a rule for a new trial.'

Upon the hearing of these motions the court below afterwards directed judgment to be entered in favor of the defendant upon a special verdict. 105 F. 834. The reasons for this judgment are set forth in an opinion of the court filed in the case, and sent up to us with the record. They are briefly stated by the learned judge of that court as follows:

'In two respects, as the jury have found, the answers of the insured in his application were untrue. He had had the disease of dyspepsia before April 27th, the day when the application was made, and he had been attended by

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