Pollack v. Metropolitan Life Ins. Co.

• Decision Date: 13 September 1943
• Docket Number: No. 8256.,8256.
• Parties: POLLACK v. METROPOLITAN LIFE INS. CO.
• Court: U.S. Court of Appeals — Third Circuit

138 F.2d 123 (1943)

POLLACK v. METROPOLITAN LIFE INS. CO.

No. 8256.

Circuit Court of Appeals, Third Circuit.

Argued May 18, 1943.

Decided September 13, 1943.

Conover English, of Newark, N. J. (McCarter, English & Egner and Nicholas Conover English, all of Newark, N. J., on the brief), for appellant.

Arthur T. Vanderbilt, of Newark, N. J. (G. Dixon Speakman, of Newark, N. J., and Herbert E. Armstrong, of Rutherford, N. J., on the brief), for appellee.

Before BIGGS, MAGRUDER, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This is an action brought by the beneficiary of an insurance policy on the life of one Louis Marx to recover the death benefits. The defendant, appellant on this appeal, is the Metropolitan Life Insurance Company, which issued the policy April 14, 1921. A clause in the policy provides that if the age of the insured has been misstated, the amount of insurance payable shall be what the premiums paid would have purchased at the correct age. In his application for insurance the insured stated that he was born October 15, 1866. At the trial the beneficiary claimed that to be the correct age. This was disputed by the insurer who offered evidence to prove that the insured had been born in the year 1862 and other evidence tending to establish a different date, prior to 1866. This evidence was excluded by the trial judge who directed a verdict for the beneficiary. The insurer took this appeal.

The excluded evidence consisted of various documents wherein the age of the insured was stated. We shall consider them separately, but before doing so, attention should be directed to the main point upon which the trial court relied and which is the foundation of the plaintiff's argument here. It is that statements by the insured may not come into evidence, as admissions, in an action by the beneficiary against the insurer. The decision cited and relied upon is Henn v. Metropolitan Life Ins. Co., 1902, 67 N.J.L. 310, 51 A. 689. In that case the court held that declarations as to his health made by the insured before the issuance of a life insurance policy were not admissible in an action by the beneficiary after the insured's death. Recognizing confusion in the decisions upon the point, the plaintiff's argument seeks to fuse the rule above stated into one of the substantive law of New Jersey by which under the rule of Erie R. Co. v. Thompkins (304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487) we should, of course, be bound.

We think the Henn case and those which are in accord with it are correctly decided, though we do not follow the plaintiff to her conclusion that they lay down a rule of substantive law comparable to the parol evidence rule. We also think that the rule announced in that case takes us only part way in solving the problems presented here. In the Henn case the defendant sought to show that the insured had made statements concerning his health which were inconsistent with the representations which he had made to the company when he applied for the policy. Now when one man sues another it is clear, as Wigmore says, that "The statements made out of court by a party-opponent are universally deemed admissible when offered against him."¹ While it is true the statements are extra-judicial, and technically hearsay, since the witness offers the statement of another as proof of the fact alleged in the statement, yet since the statement is that of the party himself, he can hardly be heard to complain that he cannot cross-examine himself as to his own utterances.² The rule is well settled, of course, that for an admission to be available as evidence against a party the declarant need not be dead or otherwise unavailable.³

But the rule governing admissions is applicable to a "party-opponent", to use Wigmore's phrase. In the Henn case the person who made the admissions was not a "party-opponent" but a stranger to the litigation. It was the insured who made the statements, it was the beneficiary who was the plaintiff in the suit upon the policy. Admissions made by A are not to be introduced in a suit by B against C, unless A is in such relation to one of the litigants that he is properly affected by them. Privity is the term used to describe the relationship, though obviously its use does not tell us what situations create privity.

The defendant's argument seeks to bring in the admissions under this privity qualification to the general rule of exclusion. It says that the admissions of the insured should come into evidence here because while he did not reserve the power to change beneficiaries when the present plaintiff was so named, the policy also had disability benefit provisions the value of which are affected by the age of the insured. Thus, runs the argument, beneficiary and insured each had an interest in the policy and that common interest should make the latter's admissions available in a suit by the former.

The claim for disability benefits is a matter separate from the subject matter of this action, however, and we are advised by counsel that a suit on such claim is pending. We do not express any opinion upon the question of admissions by the insured in a suit brought by his personal representatives for disability benefits. The fact that both death and disability benefits are provided for in the same policy does not make the insured's admissions available in a suit by the beneficiary. This was expressly held in Kuhns v. New York Life Ins. Co., (1929), 297 Pa. 418, 147 A. 76, and we think that decision is correct.

If all we had in this case, then, was a statement by the insured concerning his health, like that in the Henn case, we should conclude that the trial court was on solid ground in refusing to admit the statement. But we do have more here, and we have here too the situation not uncommonly met with in which evidence not qualifying for admission under one exception to the hearsay rule may nevertheless come in under another.

Petition for Naturalization.

At this point it becomes desirable to deal separately with the various items of proof offered by the defendant upon the question of the insured's age. The first had to do with a petition for naturalization filed in the Court of Common Pleas, Essex County, New Jersey,⁴ Feb. 26, 1903. Assuming that this petition was identified as one signed and sworn to by the insured, was it admissible to show his age from his own statements therein? Here we have an entirely different foundation upon which to build the argument for admissibility and one which is based on facts present here which were not present in the Henn case. The statements in this petition for naturalization concerned the date of birth of the declarant; in the Henn case the statements sought to be admitted concerned his health. Where we have involved statements concerning birth, death and the like, we meet a different rule based on different considerations.

Declarations about family history (pedigree) constitute one of the oldest exceptions to the hearsay rule,⁵ and a deceased declarant's statements about his own age, birth, etc., are categorically stated by Wigmore to be admissible under this exception.⁶ Wigmore cites four decisions for his statement of the rule. Travelers' Ins. Co. v. Henderson Cotton Mills, 1905, 120 Ky. 218, 85 S.W. 1090, 117 Am.St.Rep. 585, 9 Ann.Cas. 162; Taylor v. Grand Lodge A.O.U.W. of Minnesota, 1907, 101 Minn. 72, 111 N.W. 919, 11 L.R.A.,N.S., 192, 118 Am.St.Rep. 606, 11 Ann.Cas. 260; Oklahoma Union Ins. Co. v. Morgan, 1934, 168 Okl. 228, 32 P.2d 285; National Aid Life Ass'n v. Morgan, 1934,⁷ 168 Okl. 226, 32 P.2d 288. To these may be added a number of other decisions which also apply the rule to the type of situation here involved. Simon v. New York Life Insurance Company, 1918, 70 Pa.Super. 408; Life & Casualty Ins. Co. v. Parker, 1935, 173 Miss. 180, 161 So. 465; New York Life Ins. Co. v. McQuie, 1939, 277 Ky. 268, 126 S.W.2d 458. In addition, appellant has cited a number of decisions which held a deceased declarant's statements of his age admissible, without indicating whether the basis of admissibility was the "pedigree" exception.

The appellee has cited cases⁸ where the courts have held such statements inadmissible. It is noteworthy that in none of these cases do the courts discuss whether the statements would be admissible under the "pedigree" exception. The statements were excluded on the principle that the declarations of the insured were not admissible, as admissions, against a beneficiary. As indicated earlier in this discussion, we think that principle sound, but it is not applicable to the immediate problem under discussion, the admissibility of the statements under the family history exception to the hearsay rule.

The New Jersey decisions recognize and apply this exception when the occasion for its application is presented. See Barsotti v. Bertolino, 1937, 121 N.J.Eq. 346, 189 A. 659; Hubatka v. Maierhoffer, 1911, 81 N. J.L. 410, 79 A. 346; In re Hennion's Estate, Prerog. 1942, 131 N.J.Eq. 293, 25 A.2d 35.

In view of the universal recognition of the exception, its application to this specific situation in many well considered decisions and the absence of attention to the point in cases reaching an opposite result, we think that the evidence was admissible under § 43(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Since it bore directly upon the only disputed question of fact in the case, the jury should have had it for whatever weight they thought it entitled to, and its exclusion was reversible error.

Birth Certificates of Insured's Children.

The defendant offered in evidence the certified transcripts of birth certificates of two of the insured's children in which the age of the insured was stated. One certificate recorded the birth of a child on June 24, 1896. The age of the insured stated therein was 36. The other certificate recorded the birth of a son on November 3, 1897. The age of...