The Equitable Life Assurance Soc'y v. Paterson

Decision Date30 June 1870
Citation41 Ga. 338
CourtGeorgia Supreme Court

Insurance. Marriage. Charge of Court, etc. Before Judge Schley. Chatham Superior Court. April, 1870.

In August, 1868, Catharine A. Paterson averred that, on the 26th of February, 1867, she caused to be made a policy of insurance by the Equitable Life Assurance Society of the United States, a corporation, by which, in consideration of the representations made to said society, in the application for such policy and statements therein made, touching the person and family of the assured, submitted by the assured, and of $136 30 paid by her to said society, and of the like sum to be paid semi-annually, on or before the 26th of August and February, in each year, during the life of the assured, the society assured the life of her husband, James F. Paterson, *for $10,000 00, for her sole use, with participation in profits during his life. This sum was by the policy to be paid to her within sixty days after her husband's death, upon due notice and proof. Among the stipulations in said policy were, that it should be void "if the assured shall die by his own hand, within two years from the date of said policy, " "or if the declarations made in the. application for said policy, or if any statement respecting the person or family" of the assured, "should be found in any respect untrue." On the 16th of May, 1868, the assured died, of which notice and proof were made on the 1st of June, 1868, as required by the policy. All that was necessary to be done and to be avoided, to make the case against the company was averred. Another count did not aver that Paterson was her husband. Another, made the same omission, and also omitted the averment as to representations made to the society, before the policy was issued. She concluded with counts for money had and received, money laid out and expended, etc. In each she claimed $10,000 00 besides interest.

The society pleaded the general issue; that in said appli-cation Paterson was represented as a married man, whereas he was not; that plaintiff was not Paterson\'s wife, as was therein stated, but was the wife of one John H. Talbird, but had undertaken to marry Paterson, and was living with him under such circumstances as that, had they been fully disclosed, the policy would not have been issued, yet she and Paterson fraudulently concealed these circumstances from the society; that on the 11th of December, 1863, she and Paterson had procured the passage of a private Act, relieving them from the penalties of marrying while said Talbird was alive, representing that they then supposed him to be dead, and yet this was also fraudulently concealed from said society; that she had no interest in Paterson\'s life; had it been known the policy had not been issued. Further, she was faithless to Paterson, drove him to desperation, because of her discovered infidelity, and he had determined to separate from her, consulted counsel, and was in the act of such separation just before his said death. Further, Paterson took poison *from some person unknown, his death was by poison, which she knew he had taken voluntarily, and yet, being present and intending to let it have full effect, she refused and neglected to call medical aid, whereby his death occurred. More, she assisted him in taking said poison, she administered it to him; and for these reasons this society said that the policy was void.

On the trial, plaintiff read in evidence the said policy, which was drawn in favor of "Katie A. Paterson, wife of" said Paterson; the certificate of a minister showing her marriage with Paterson, in 1860; showed by a witness that Paterson introduced her to him as his wife, that Paterson died on the day alleged, and that notice and proof were made, as required by the policy, that payment of the $10,000 00 was demanded and refused, and closed.

The defendant's agent, who had issued the policy, testified that this policy was based upon the application shown to him, and that had it been known that plaintiff and Paterson did not sustain to each other, at the time, the legal relationship of man and wife, the policy would not have been issued.

Cross-Examined he said: "I first heard doubts expressed as to whether Dr. P. and plaintiff were husband and wife, after the death of the former. If I had known that such doubts existed at the time of the issuing of the policy, I might, or might not, have recommended it to issue. The company, in my opinion, would not have issued it. I do not know the laws of the State of Georgia as to what constitutes the legal relation of husband and wife. The company so far recognize my acts as generally to issue the policy on my recommendation; but they would correct any errors. As a general tiring, they acknowledge as binding what I do. I canvassed Dr. Paterson heavily to induce him to take out the policy." The application was then put in evidence, containing the following stipulation:

"The undersigned, whose life is herein proposed for Assurance, hereby declares that the answers to the questions herein are fair, full and true answers to said questions, and it is distinctly stipulated and agreed by said applicant, thatthe said answers and the statements herein shall form the basis *of the proposed contract of assurance, and that any untrue or fraudulent answers or statements, any suppression of facts respecting his (or her) health or family history, or neglect to pay the premium on or before the day it becomes due, shall render all policies issued under or by reason of this application, and all dividends thereon, null and void, and forfeit all payments made thereon, and that said proposed assurance shall not be binding until the first premium shall have been received by said society, or an authorized agent thereof, during the lifetime and good assurable condition of said applicant."

It contained also the following questions and answers by James T. Paterson:

"5. Are you married? Yes. Have your habits of life always been correct and temperate? Yes."

"10. What is your custom respecting the use of ardent spirits, malt liquors or wine? Use them very rarely."

"20. What is the relationship, or interest in you, of person named? Wife."

"18. In whose favor is the policy to be drawn? (Name in full.) Katie A. Paterson."

And the following question and answer in the medical examiner's report:

"11. Do you believe the person to be entirely sober and temperate in his habits of life? They are."

And the following in certificate of friend:

"2. Are his habits of life entirely correct and temperate? Yes."

"Are his habits and health such, in your opinion, as to render his life safely assurable? Yes."

The application was signed at Savannah, "this 21st day of February, 1867, by James T. Paterson, for Katie A. Paterson.

Witnesses by L. Bowie. Approved and recommended by L. Bowie, Agent."

To show that John H. Talbird was alive when plain-tiff *married Paterson, in 1860, and that she knew it at the time of her marriage, the defendant introduced the following evidence: A record by which it appeared thatin 1869, she filed in New York a libel for divorce against him, swore to the facts stated, had him served personally, in Alabama, and obtained a divorce from him. An Act of the General Assembly of Geqrgia, passed in 1863, relieving her and Paterson from the pains and penalties of living together upon the ground that they married supposing Talbird was dead, hut had since doubts as to that fact. In 1863 and 1864, Paterson, at her instance, made two wills, giving her property, (as a witness said) that it might not be inherited by Paterson\'s brother.

One witness testified that Talbird was alive and in Augusta trying to get his child from plaintiff, while she and Paterson were there living together. Another saw Talbird in 1865, and another in 1862 or 1863. Talbird testified that they parted in 1859, in Alabama, he had left there for about two years and returned in 1864, and had lived there ever since; she wrote to him in 1863, and he did go to Augusta for the child, but did not see or communicate with plaintiff. She came to Augusta on their separation, taking the child with her. It was shown that during this absence of Talbird, he was reported dead; but the witnesses stated facts going to show that the report was fabricated and given currency to by plaintiff and Paterson.

It was shown that Paterson died from the effects of laudanum taken about twelve o'clock at night, that no physician was called in till about eleven o'clock of the next morning, and that he died about noon. The circumstances as detailed by her, her conduct at the death, at the burial, and afterwards, Paterson's declaration that she was unfaithful to him and that he had quieted her, on the day before the death, and that he returned only to get something which he had left, etc., etc., were put in evidence, to show that she either gave him the laudanum or suffered him to take too much, and carelessly or wickedly prevented medical assistance, till his death from laudanum was inevitable. And it was shown that she *was indicted for murdering Paterson; and circumstances to prove that she was faithless to him with one Roher, and others, were shown. There was evidence to show that he was a temperate man. In rebuttal, other witnesses testified as to the manner of plaintiff and circumstances to relieve her from the suspicion of carelessness, wickedness or unchastity as to Paterson. She testified to facts tending to how her perfect innocence, that the death was by over dose of laudanum, by accident taken, when Paterson was drinking, weak, and nervous, and sleepless, etc. She produced and read many letters from Paterson, in which he addressed her very tenderly as his wife. And she stated that she did believe Talbird was dead when she married Paterson, and that her...

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