Merchants' Life Ass'n of United States v. Yoakum

• Decision Date: 21 November 1899
• Docket Number: 800.
• Citation: 98 F. 251
• Parties: MERCHANTS' LIFE ASS'N OF UNITED STATES v. YOAKUM.
• Court: U.S. Court of Appeals — Fifth Circuit

98 F. 251

MERCHANTS' LIFE ASS'N OF UNITED STATES v. YOAKUM.

No. 800.

United States Court of Appeals, Fifth Circuit.

November 21, 1899

D. A Kelley, for plaintiff in error.

George Clark and D. C. Bolinger, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

This was an action upon a policy of life insurance issued by the plaintiff in error on the life of John I. Hassler, the intestate of the defendant in error. The plaintiff in error (the defendant below) answered (1) by a general demurrer upon which no action of the court was taken; and (2) by the general issue; and then specially as follows:

'(3) Further answering specially herein, this defendant says that it is not liable upon the policy of insurance sued on herein, and that it ought not to be compelled to pay the same, for the reason that said policy of insurance was obtained fraudulently, and is null and void, by reason of the following facts, to wit: This defendant says that said policy of insurance sued on herein, which is shown and described in the plaintiff's petition, was based upon a written and printed application therefor dated and signed by John I. Hassler, the deceased, being plaintiff's testator, on the 28th day of September, 1897, wherein said Hassler, among other things, was required to answer as to how long prior to said application it had been since he was attended by a physician or had to consult one, and that he answered thereto, 'May and June, last,' which meant May and June of the year 1897. And further, in said application he was required to answer if he had ever had any disease of the throat, lungs, heart, liver, kidney, or bladder, and that he answered thereto 'No,' meaning thereby that he had never had, nor was he at that time affected with, any of the diseases called for in said question indicated aforesaid. And it is further alleged that in said application the said John I. Hassler was required to answer whether or not he had ever had shortness of breath, or habitual cough, or pneumonia, or spitting of blood, and that he answered 'No,' thereby meaning that he had never been, and was not then, affected with any of said ailments or diseases. And it is further alleged that the said John I. Hassler was further required in said application to answer whether or not he was then, and if he was usually, in good health, and that he answered 'Yes,' thereby meaning that he was then in good health, and that he was usually in good health. And it is further alleged that the said John I. Hassler was also required in said application to answer if he had enjoyed good health in the past twelve months prior to said application, to which he answered, 'Yes, except an attack of malarial in May and June last,' thereby meaning that he had enjoyed good health except as to an attack of malarial fever during the time stated. Now, this defendant says that the foregoing answers of the said John I. Hassler were false in this: It is alleged that at the time said application was made and said answer given as hereinbefore stated, and at the time of the issuance and delivery of the policy of insurance sued on herein, the said John I. Hassler was not in good health, but, on the contrary, was in bad health, and that he had a disease of the throat commonly called 'bronchitis,' and he also had shortness of breath, and an habitual cough, and a frequent spitting of blood; and he also had a disease of the lungs commonly called 'pulmonary consumption,' which finally resulted in his death; and that he was in a feeble condition, and unable to attend to his usual avocation, which was that of a truck gardener; and that from the time of the alleged attack of malarial fever to the date of said application said Hassler had frequent occasions to consult, and did consult, a physician with reference to his physical condition. This defendant further says that, if it had known of the true physical condition of said Hassler at the time he made said application and at the time said policy was issued, it would never have issued said policy, but would have rejected the application of said Hassler for insurance, and would have refused to issue the policy sued on, and would have refused to take any risk whatever upon the life of said Hassler; and, if it had known of said Hassler's condition at the time said policy was delivered, it would not have delivered the same. And this defendant further says that all of the statements and answers made by said Hassler in reply to the questions which he answered in said application, as hereinbefore stated, were material, and that by the terms of said application he consented and agreed that they should be material, and that they were warranties, and that they were true and complete, and that they were made as a basis for the issuing of the policy then applied for and which is here now sued on; and it was further agreed, as shown by the terms of said application, that said policy then applied for should not take effect or be binding upon this defendant unless and until said policy was issued and delivered to him during a continuance of the good health of said Hassler, which was meant that said Hassler was in good health, and not subject to any of the diseases or ailments hereinbefore referred to, both at the time he applied for said insurance, which was on the 28th day of September, 1897, and also at the time said policy was issued, which was on the 7th day of October, 1897, and at the time said policy was delivered, which was on the 15th day of November, 1897; and it is further alleged that he was not in good health either at the time that he applied for said policy or at the time it was issued, aforesaid, or at the time said policy was delivered; but it is alleged that he was in bad health, and affected with the diseases and ailments hereinbefore stated and referred to, at the date of said application, and at the time said policy was issued, and at the time it was delivered, as aforesaid, which operated as a fraud upon this defendant, and rendered said policy sued on null and void. This defendant further says that the plaintiff herein is personally interested in the recovery herein sought by him as executor, and that he was a party to the fraud hereinbefore shown, wherein this defendant was induced to issue and deliver the insurance policy sued on, in this: This defendant says that the plaintiff herein was acquainted with said John I. Hassler several years prior to the procurement of the policy sued on, and knew him to be in feeble health, and not a fit subject for the procurement of insurance on his life upon the basis of his being in good health, and had good reason to believe that he was affected with a disease of the lungs, which rendered him wholly unworthy as an applicant for insurance upon his life; and, notwithstanding this, it is alleged that the plaintiff entered into a conspiracy with the said John I. Hassler for the purpose of procuring the policy of insurance sued upon, and as a matter of speculation for the benefit of the plaintiff herein, and that he procured and induced said Hassler to make said application for insurance, and brought him in contact with the defendant's agent, with the fraudulent design aforesaid, and will full knowledge of said Hassler's condition, as aforesaid; and that upon said Yoakum ascertaining that said policy had been written in the name of said Hassler's wife as beneficiary, he (the said Yoakum), before said policy was delivered, acting in conjunction with said John I. Hassler, procured the said policy to be changed so that the amount therein named should be paid to the estate of said Hassler instead of to his wife, as hereinbefore stated; and, in addition to this, and in still furtherance of his scheme and design, in conjunction with said John I. Hassler, to defraud this defendant, the plaintiff, on, to wit, the 15th day of November, 1897, paid the premium called for in said policy, and then and there had said policy delivered on said 15th day of November, 1897, and on the said day, and before the same was so delivered, said Yoakum took judgments against said John I. Hassler for the sum of $4,000 in the district court of McLennan county, Fifty-Fourth judicial district, upon a waiver of service and confession by said Hassler upon a pretended note for the sum of $4,000, made by said Hassler to said Yoakum, dated the 8th day of November, 1897, bearing 6 per cent. per annum interest, and to become due on the day that it was executed, aforesaid, without grace. And it is further alleged that on the said 15th day of November, 1897, said Yoakum and said Hassler still further intended to defraud this defendant for the benefit of said Yoakum, and said Hassler executed his last will and testament, wherein and whereby he appointed said Yoakum his executor without bond, with the power to administer his estate out of court, and to pay all of the debts against his estate, etc., which said will was subsequently probated, as stated in plaintiff's petition. This defendant further says that said note for $4,000 was wholly without consideration, and that there was no basis for the same, and that there were no transactions between said Hassler and plaintiff Yoakum wherein and whereby said Hassler was indebted unto the said Yoakum in said sum of $4,000, or any like amount, except such obligation as may have arisen between said Hassler and Yoakum in carrying out said conspiracy to defraud this defendant. Of these matters the defendant is ready to verify, and the defendant prays that said policy of insurance be canceled and annulled, that this defendant be allowed to go hence, and that this defendant be also allowed to refund, and pay to whomsoever this court may adjudge, the $233.55

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