MCGurk v. Metro. Life Ins. Co.

• Decision Date: 18 December 1888
• Citation: 56 Conn. 528,16 A. 263
• Court: Connecticut Supreme Court
• Parties: MCGURK v. METROPOLITAN LIFE INS. CO.

16 A. 263

56 Conn. 528

MCGURK

v. METROPOLITAN LIFE INS. CO.

Supreme Court of Errors of Connecticut.

December 18, 1888.

Appeal from superior court, Hartford county.

Action by Nellie A. McGurk against the Metropolitan Life Insurance Company, on a policy of insurance issued by defendant to her deceased husband. She recovered judgment, and defendant appeals.

T. M. Maltbie, for appellant. L. Sperry, for appellee.

PARK, C. J. This action is based upon a policy of life insurance, issued by the defendant upon the life of one William McGurk. At the time application was made for the policy, and when it was issued, and during all the remaining life of McGurk, he was carrying on the business of a grocer, and at the same time was engaged in selling wines and spirituous liquors at retail in one part of his grocery establishment, separated from the remainder by a wooden partition. In his application for the policy be stated, in answer to a question regarding his business, that his occupation was that of a grocer. No other or fuller answer was given to the question. He further declared that the statements he had made in his application were strictly correct, and wholly true; that they might form the basis and become a part of the contract of insurance, if one should be issued. The policy counted upon these statements, and they formed a part of the consideration of the contract. In one clause of the policy it is stated that "the person upon whose life this policy is issued shall not be connected in any capacity with the ale, wine, or liquor business, unless so specified in the application heretofore referred to, or unless permission be given by permit, signed by the president or secretary." In another clause of the policy it is stated that "agents are not authorized to make, alter, or discharge contracts, or waive forfeitures, or receive premiums on policies in arrears, after the time allowed by the regulations of the company." On the trial of the cause in the court below, the plaintiff offered evidence to prove, and claimed that he had proved, that the application of McGurk was taken and filled out by one Curtis, who was the assistant superintendent of the defendants in the district where the insured resided; that it was taken in the room where the insured kept his liquors; that while it was being done the insured sold liquors to divers persons, in the presence and with the knowledge of Curtis, who likewise drank liquor there at the time; that another agent of the defendants, who performed the duty of collecting premiums of insured persons, and who afterwards collected weekly premiums of McGurk during nine successive weeks next after the issuing of the policy, was also present at the taking of the application, and saw McGurk selling liquors; that two other agents of the defendant, who collected premiums of the insured, knew that he was engaged in the business of selling groceries and spirituous liquors, and one of them drank such liquor there, but they knew nothing concerning the statements in the application; and that Curtis delivered the policy to the insured in the same room where the liquors were sold, which had all the paraphernalia of a bar-room.

It further appeared in the case, by the evidence offered by the defendants, that the duties of superintendents of districts and assistant superintendents were to employ and instruct agents in the duties of canvassing for applications for insurance, and in the collection of premiums, and to inspect their business, and examine their accounts of premiums collected. These facts form the basis of the questions that arise in the case.

The defendant's answer sets forth a false warranty of McGurk in his application, in this: that he stated in it that his occupation was that of a grocer, which was not strictly true, for at the same time be was engaged in the ale, wine, and liquor business as a part of his occupation, which he continued to carry on during the remainder of his life, without the business being stated in his application, and without having the permit to do so, signed by the president or secretary of the defendant; which was contrary to his warranty and to his contract of insurance. The plaintiff's reply to the answer of the defendant sets forth that the defendant well knew, when the application was made and the policy was delivered, and during all the subsequent life of McGurk, that he was engaged in such business, but notwithstanding it collected and continued to collect of him the weekly premiums as long as he lived, and in consequence thereof it waived all objection to the liquor business of McGurk, and is now estopped from claiming the objection set forth in its answer. To this reply the defendant demurred, and the court adjudged the reply sufficient, and required the defendant to plead over, which it did by denying the facts stated in the reply to which it had demurred. On the trial of the cause evidence was offered by the parties pro and con on this issue, and under the charge of the court the jury found the facts as stated by the plaintiff. The question of fact, therefore, has been settled, and cannot be reviewed, if there was any substantial evidence that went to the jury in support of their verdict, inasmuch as the case does not come up on the ground of a verdict against the evidence. But the defendant complains of the charge of the court. It says the court erred in not charging the jury according to its request, which was as follows: "(1) The answer in the application that McGurk was a grocer, without stating that he was engaged in the liquor business, was an...