Valley Mut. Life Ass'n v. Teewalt

• Decision Date: 02 October 1884
• Citation: 79 Va. 421
• Parties: VALLEY MUTUAL LIFE ASSOCIATION v. TEEWALT.
• Court: Virginia Supreme Court

79 Va. 421

VALLEY MUTUAL LIFE ASSOCIATION v. TEEWALT.

Supreme Court of Appeals of Virginia.

October 2, 1884

Error to judgment of circuit court of Shenandoah county in action of assumpsit instituted by James N. Teewalt, son of Samuel Teewalt, to recover of the Valley Mutual Life Association of Virginia, the sum of one thousand dollars for which the father had insured his life in favor of his son. To this action defendant company demurred, pleaded non assumpsit, and several special pleas, alleging fraud misrepresentation, breach of warranty, and concealment in respect to the age of the insured. A verdict was found for the plaintiff and judgment entered accordingly. To this judgment the defendant company obtained from one of the judges of this court a writ of error and supersedeas.

Marshall Hanger, M. L. Walton, for plaintiff in error.

H C. Allen, for defendant in error.

OPINION

HINTON J.

The grounds of demurrer assigned are, first, that the assured did not sustain such a relation to the insured as would entitle him to recover, and second, that the interest of the assured was not sufficiently set forth in the declaration of the plaintiff. Neither of these grounds can be maintained, for as to the first objection no matter what doubt may have been formerly entertained on the subject, it is now well settled that a father has an insurable interest in the life of his child, whether a minor or of full age, and the child in the life of his father. Bliss on Life Ins. (2d ed.), 41, 42; Warnocks v. Davis, 14 Otto 779; Connecticut Mut. Life Ins. Co. v. Luchs, 108 U. S. R. 498. And as to the second objection, we think we need only observe that an examination of the declaration has satisfied us that it is drawn in substantial conformity with the statute, and sufficiently and accurately sets out the interest of the assured. V. C. 1873, ch. 167, § 14. And we think therefore that the demurrer was properly overruled.

The real point of controversy at the trial, was whether Samuel Teewalt, the insured, had misrepresented his age in his application for the policy; and accordingly, the defendant, during the trial, took eight bills of exceptions, several of which have reference to the exclusion or admission of the testimony of witnesses supposed to have a bearing upon that point; and others of which refer to the action of the court in giving a certain instruction and in refusing to give certain other instructions which relate to the same point. The first of these exceptions is taken to the refusal of the court to permit the defendant to ask a witness, one Joseph S. Irwin, " if he knew the age of Samuel Teewalt, the insured, at the time of the issuing of the certificate of membership or policy of insurance in," & c., * * " by any statements that said Teewalt made to him * * in 1863, or 1864, as to his age?" But the action of the court in this respect was clearly right. The statements of the insured, made seventeen or eighteen years before he obtained the policy, clearly are not admissible as evidence to disprove the statement made as to his age in his application for membership. They were the declarations of a stranger, who was neither a party to the action, nor at the time of making them the agent of the party. Bliss on Life Ins. § 372. On this subject the supreme court of Kansas, in a late case says: " The contract is between the assured and the insured. * * * * The party insured is not party to the record, and therefore her declarations are not admissible on that ground; she is not a party in interest, as the whole benefit and interest inures to the assured; she is not the agent and authorized to speak for him, nor does she come within any other rule by which her declarations can be received against him." Washington Life Ins. Co. v. Haney, 10 Kan. 525. Such statements certainly constitute no part of the res gestæ , and cannot be regarded as admissions against interest, and cannot therefore be admitted. The question therefore was properly rejected. These observations apply with even greater force to the fourth exception of the defendant, where the attempt was made to introduce the declarations of the insured made to an agent of the company some eight months after this policy was issued. For, in addition to the objections which have already been stated, it would tend to render utterly insecure this important class of contracts, by placing it within the power of insurance companies to avoid them upon the slippery recollections of a class of persons whose interests make it impossible that they should be entirely disinterested. We think, therefore, that there is no error set out in this exception.

We also think, that the court properly refused to permit the defendant to ask the witness, Charles Welsh, " what was the age of Samuel Teewalt, according to his appearance, and according to his (Welsh's) best judgment, " which is the subject of the second bill of exceptions. The sole object of the inquiry evidently was to draw from the witness an expression of his judgment, i. e. his opinion of Samuel Teewalt's age from his appearance; this the defendant was forbidden to do, not only by the general rule which excludes such evidence, but also by the third instruction which the court gave at his instance, and which instructs the jury that they " cannot consider in the determination of the matter, the opinions or suppositions of witnesses as to the age of Samuel Teewalt, but are confined to the actual facts and knowledge of witnesses as proven." The question we think was plainly inadmissible.

The defendant's next assignment of error is equally untenable. It is contained in his third bill of exceptions. The defendant asked the witness, one Donaldson, " whether he knew from any business transactions with Joseph Teewalt, the brother of Samuel Teewalt, what his or Samuel's age was in 1861, and which was the elder." But the question was ruled out by the court. There is no indication, as the plaintiff has said in his brief, in the bill of exceptions, of the character of the business transactions between the witness and Joseph Teewalt, the brother of the insured; and, therefore, nothing from which this court can see that the question was either pertinent or proper. For aught that the court can see, the answer to the question would have contained...