Mutual Life Ins. Co. of New York v. Selby

• Decision Date: 03 February 1896
• Citation: 72 F. 980
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. SELBY.
• Court: U.S. Court of Appeals — Ninth Circuit

72 F. 980

MUTUAL LIFE INS. CO. OF NEW YORK v. SELBY.

United States Court of Appeals, Ninth Circuit.

February 3, 1896

E Lyman Short and Strudwick & Peters, for plaintiff in error.

Fred H Peterson and L. C. Gilman, for defendant in error.

Before McKENNA, GILBERT, and ROSS, Circuit Judges.

GILBERT Circuit Judge.

The defendant in error was the plaintiff in an action brought in the court below to recover upon three policies of life insurance. The trial resulted in a judgement for the plaintiff for the amount sued for. The plaintiff declared upon policies of life insurance issued by the defendant upon the life of William Selby, amounting in the aggregate to $10,000, payable to her as the beneficiary. The defendant admitted the issuance of the policies, and the payment of the premiums therefor, and the death of the insured, but defended against liability on the ground of a breach of the warranties contained in the policies. It alleged that as a part of the contract of insurance, and as a condition precedent to the defendant's liability thereon, the insured made certain warranties concerning the condition of his health, and his freedom from certain diseases named and the grounds on which he had received a pension, and that the policies were issued and delivered to him in consideration of such warranties, and on the faith of the truth of the same, but that all of said warranties were untrue. These allegations of the answer were denied in the replication. Reference must therefore be had to the application for insurance and to the policy, to ascertain the terms of the contract. In the application the insured after answering specific questions propounded by the insurance company, subscribed to the following 'I also agree that all the foregoing statements and answers, as well as those that I make to the company's medical examiner in continuation of this application, are by me warranted to be true, and are offered to the company as a consideration of the contract.'

The policy which was issued upon said application contains the following recital:

'In consideration of the application for this policy, which is hereby made a part of this contract, the Mutual Life Insurance Company of New York promises to pay,' etc.

In its answer to the complaint the defendant made no reference to the premiums paid on the policies, amounting in all to $648, nor did it offer to refund or repay the same. The policy, unlike those ordinarily issued, contains no express provision whatever whereby the contract of insurance shall be deemed null and void if the facts warranted to be true are untrue, nor does it stipulate that in that event the sums that may have been paid, as premiums thereunder, shall be forfeited to the insurance company.

It is assigned as error that the court admitted in evidence the policy of insurance without requiring the plaintiff to offer therewith the application on which the same was based, and which was a part of the insurance contract. The plaintiff in error was not prejudiced by this ruling, for the application was subsequently admitted upon its own offer, and went before the jury. Edington v. Insurance Co., 67 N.Y. 185; Woodbury v. Hinckley (Colo. App.) 32 P. 860.

It is said that the court erred in excluding from the evidence certain affidavits of neighbors of the insured, which had been obtained and used in support of his application for a pension. In these affidavits it is recited that the pensioner had made certain statements to the affiants concerning the condition of his health. It did not appear that the insured himself procured the affidavits, or knew their contents. There was no ground upon which they were admissible in evidence. Swift v. Insurance Co., 63 N.Y. 186; Dilleber v. Insurance Co., 69 N.Y. 256. The same is true of the ruling of the court concerning an alleged report of physicians who examined the insured on his application for a pension. The report was properly excluded for the same reasons that excluded the affidavits. It did not appear in the bill of exceptions that the insured knew of this report, or its contents. The report contained only the opinion of the physician, It was not admissible in evidence, against the insured or his beneficiary, in an action upon the policy. The most that could be claimed for either the affidavits or the report is that in case the affiants or the physician had appeared as witnesses in the case, and had testified otherwise than as shown therein, they might have been impeached by proof of their previous contradictory statements. Schwarzbach v. Protective Union, 25 W.Va. 622; Swift v. Insurance Co., 63 N.Y. 186.

Error is assigned to the ruling of the court excluding the testimony of one James H. Wilson, who was called to testify concerning statements made to him by the insured concerning his physical condition at the time of his application for pension. No error is found in this ruling. The statements of the insured were clearly incompetent evidence, and not binding upon the plaintiff. Insurance Co. v. Morris, 3 Lea, 101; Insurance Co. v. Cheever, 36 Ohio St. 201; Schwarzbach v. Protective Union, 25 W.Va. 622; Dilleber v. Insurance Co., 69 N.Y. 256. It appeared, also, that the statements were made to the witness while he was acting as attorney for the insured in obtaining his pension. Upon that ground, also, the evidence was properly excluded. Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U.S. 250, 5 Sup.Ct. 119; Insurance Co. v. Schaefer, 94 U.S. 457; Liggett v. Glenn, 2 C.C.A. 286, 51 F. 394; Chirac v. Reinicker, 11 Wheat. 280; Edington v. Insurance Co., 67 N.Y. 185; Tramway Co. v. Owens (Colo. Sup.) 36 P. 848.

It is assigned that there was error in the admission of parol evidence tending to show that the answers made by the insured to the questions propounded in the application for insurance were not those that were actually written in the application. The testimony so admitted was offered by the plaintiff to rebut the defendant's evidence in support of its defense of a breach of warranty. The warranty, as alleged in the answer, consisted in the fact that the insured had stated that he was on the United States invalid pension roll, under the pension laws of 1890, for general disability, and not for any acute or chronic disease. The plaintiff had met this allegation of warranty and the breach thereof by a general denial in his reply, and the defendant had submitted in evidence, in proof of the alleged breach of warranty, a copy of the pension roll, in which it appeared that the insured was 'disabled by piles, rheumatism, and naso-pharyngeal catarrh'; but it also appeared that his declaration for...