Wagner v. National Life Ins. Co., 497.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation90 F. 395
Docket Number497.
PartiesWAGNER v. NATIONAL LIFE INS. CO. OF MONTPELIER, VT.
Decision Date09 November 1898

90 F. 395

WAGNER
v.
NATIONAL LIFE INS. CO. OF MONTPELIER, VT.

No. 497.

United States Court of Appeals, Sixth Circuit.

November 9, 1898


[90 F. 396]

This action was brought by Mary L. Wagner against the National Life Insurance Company of Montpelier, Vt., to recover $5,000 upon a policy of life insurance issued upon the life of her husband, Robert Wagner. Robert Wagner died on the 10th day of December, 1894, and, after due proof of loss and refusal to pay by the company, the writ was issued and the declaration filed. The defendant filed a plea of the general issue, and, as the Michigan practice requires, gave notice of an intention to prove a surrender of the policy in bar of the action. The plaintiff offered in evidence the policy, which, at the request of the plaintiff, had been produced by the defendant, in whose possession it was. The defendant objected to the introduction of the policy, for the reason that it bore the following indorsement:

'Detroit, November 26, 1894.

'Received from the National Life Insurance Company $1,061.61 in full for all claims under this policy, No. 45,801, now terminated by surrender for cash.

'(Signed) Robert Wagner.

'Mary L. Wagner.

'In presence of

'McC. C. Le Beau.'

The policy was admitted in evidence, subject to objection and exception. The only witnesses to the surrender and the accompanying circumstances were Mrs. Wagner, called in her own behalf, and Le Beau, the agent, and Dr. Miner, the medical examiner, called by the company. Mrs. Wagner was permitted to testify to a conversation with her husband before going to the agent's office. She said: 'He asked me if I would be willing to let him have the accrued money on his life insurance; if I were willing he should have this money; that would help him out of some financial difficulty. And I remarked to him at the time, as we went towards Mr. Le Beau's building, 'You do not intend to drop your insurance, do you?' And he answered me very impetuously, as he would if he thought I misunderstood him, and he said: 'No; not at all. I have not the slightest idea of doing such a thing. I simply want you to give me the interest or accrued money; that is all I want. Your life insurance will go on just the same.' And it was then I said, 'Very well, that is all I ask.' I did not mean to ask a foolish question; I simply wanted to be satisfied; and we entered the building, and from that moment I was under that supposition. I never doubted it again. I did not question the thing afterwards as I might have done. ' The witness then described the conversation of the agent, Le Beau, and the physician, Dr. Miner, with Wagner, after the medical examination. She said: 'They both came out of the room together. I don't remember anything that they said particularly to me. They said to Mr. Wagner: 'Well, Mr. Wagner, are you fully resolved to do this thing? Have you made up your mind to do this thing?' I think Mr. Le Beau asked him that question if he wanted to do this; of course, as I supposed-- (Objected to.) Q. What did Mr. Wagner say? A. He said, 'Yes,' he did. Then Mr. Le Beau told him to come into the room,-- this private room,-- and they would settle matters up; and the three went in together. I cannot remember how long they were in there. The next one I saw, I think, must have been Mr. Le Beau. He came out of the room with a folded document in his hand. The document was folded like this. And he stood in front of me, and asked me my name. ' Your name is Mary L. Wagner?' he said; and I said, 'Yes;' and he said, 'Will you please sign here, Mrs. Wagner?' And I signed the document where he indicated, and I did not look at anybody else, and I had not looked up at anybody else, except Mr. Wagner. After signing, I looked up and saw Mr. Wagner's condition, which very much frightened and astonished me. I saw that something dreadful had happened. I was positive of that when I saw his face. I knew him well enough when he was excited; that he would look like that only under very strange circumstances. Large beads of perspiration were on his forehead, his eyes were set, and his color was gone; and I knew he was very much excited to be in such a state as that. Then I [90 F. 397] asked him what was the matter, 'What does all this mean?' And he replied, 'They won't give me any more insurance,' but he just muttered the words; and then Mr. Le Beau and Dr. Miner told me why they would not give him any more, and they went into the particulars of the case. They went into the particulars of the condition of his heart; told me that it was enlarged, and that his life was not a good one, that they could not insure it; and Dr. Miner used all the medical terms such as are used in describing the condition of a person's heart. I cannot remember those. I knew he went into all the particulars of this thing every way; told me how he was. I was very much astonished and excited to think he would do such a thing to a man who was already crazy with excitement, being told such a thing; and I tried to finish the business arrangements just as quickly as I could, and get him out of there. That was my idea,-- to get him out of there as quickly as possible. And I said, 'Mr. Le Beau, if you cannot insure Mr. Wagner, there are other companies that will.' And he remarked, 'No,' his case was not a good one, it was utterly impossible to overcome that verdict; the reports would go all over the country, that it was a report that every company would hear of; that he would not be taken again. And then, in order to say something and get away, I said, 'All right, if he cannot be insured, perhaps I can get my life insured;' and I got him out of there as soon as I could. I saw that he was not fit to speak to; that I could not talk to him; and I did not try to say a word. We got on the elevator, and came down, and I did not say anything to him until we got home. ' The next day, Mr. Wagner applied to Mr. Le Beau to withdraw the surrender, and Mr. Le Beau said it was too late for him to act in the matter, and that he would refer the matter to the company, which he did, and the company declined to reinstate Wagner. Wagner's death from heart disease occurred within 10 days of the surrender. The check was duly tendered to the company before suit brought.

The account given by the agent of the company, Le Beau, was as follows: 'Mr. Wagner first spoke to me about the matters in question in this suit about the 18th or 20th of August, 1894, in my office. I was at that time state agent for the defendant company. He told me then that, when his policy became due, he should surrender for cash. The matter next came up, as I recall it, on the morning of the 26th of November, between ten and eleven o'clock. He said that he had come to fix that matter up. He had got to surrender. I stated to him I thought it was a most peculiar proceeding for a man in his condition. It was easily seen he was in a very bad condition, and I told him it was a peculiar proceeding for him to come to an insurance office and surrender his life insurance. He made the statement that he was not feeling very well; that he had been to a wedding on Saturday night. I think he said his own son was married at Cleveland, and he was up pretty late, and had had a sinking spell. I told him I thought so; he had that appearance. He said he would be all right in a day or two. I says, 'Mr. Wagner, that is the most absurd thing, the most foolish thing I can imagine.' ' Well,' he said, 'I have got to have it. It have made my arrangements for it, and I have got to have it.' Then I says, 'Now, Mr. Wagner, if you insist upon this matter, you had better make application for some term or cheap insurance to protect your family in the meantime.' Well, he wanted to know what it would cost. Of course, the premium he was paying was high,-- some three hundred and odd dollars. I told him the price, and he said, 'All right, I will do that.' I was as well aware then as now that he could not get insurance, but I had an idea that it would appease his desire, and withdraw him from that policy. When I returned from dinner, the doctor had examined him. * * * I called Mr. Wagner in, and told him the doctor said it would be impossible to write him any more insurance, and the best thing he could do was to keep what he had. And he said he could not do it. And I said, 'Wagner, I would mortgage my farm in order to do it.' I said, 'I would rather pay your family $5,000 in a year than to pay your cash surrender now.' And he says, 'It don't make any difference; one thousand five hundred dollars is worth more to me now than five thousand dollars will be in two or three years.' And there was no further argument. I saw there was nothing I could do that would induce him to withdraw [90 F. 398] his determination. Thereupon I told him, 'If you are determined upon surrendering this, call Mrs. Wagner.' * * * His wife was there with him; so he stepped to the door, and he called her in my office. I sat down, and filled out the discharge, and had Mr. Wagner sign it, and asked her to sign it. She took my chair in my private office, after which she turned in the chair to her husband, and she said, 'Now, Robert, you haven't got any other insurance?' He says, 'Yes, I have got a two thousand dollar policy here, and two thousand dollar policy over there in the equitable,' pointing across the way. Something came up whereby Mrs. Wagner-- I think she asked the question why they would not insure, or if we would insure her. I asked her how old she was. And she told me, and I put another question to her, and she answered it, and I told her we could not insure her. She wanted to know why. I told her the rules of the company applicable to women would not allow it. Afterwards I drew the check, and gave it to Mr. Wagner. Mr. Wagner took the check, and went out.'

The medical examiner, Dr. Miner, who was the only other witness, gave the following testimony: 'Well, upon...

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44 practice notes
  • United States v. Feldman, No. 17-13443
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 30, 2019
    ...the person guilty of fraud."); 1 Page on Contracts § 341, at 544–45 & n.2 (collecting decisions); see also Wagner v. Nat’l Life Ins. Co. , 90 F. 395, 404 (6th Cir. 1898).So, if our analysis in Takhalov means that the federal fraud statutes punish only fraud-in-the-factum schemes, not scheme......
  • Pringle v. Storrow
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 8, 1925
    ...v. Virginia Bridge & Iron Co. (D. C.) 257 F. 877. Contra: Lumley v. Wabash R. Co., 76 F. 66, 22 C. C. A. 60; Wagner v. Natl. Life Ins. Co., 90 F. 395, 33 C. C. A. 121; K. C. So. Ry. Co. v Martin (C. C. A.) 262 F. 241; Manchester St. Ry. v. Barrett (C. C. A.) 265 F. 557; Plews v. Burrage (C.......
  • McLaughlin v. Chief Consol. Mining Co., 3835
    • United States
    • Supreme Court of Utah
    • December 4, 1923
    ...a full consideration it was decided by the Circuit Court of Appeals for the Sixth Circuit, in the case of Wagner v. National Life Ins. Co., 90 F. 395, 33 C.C.A. 121, Circuit Judge Taft delivering the opinion, that it is proper in a suit at law for the plaintiff [62 Utah 539] to meet a plea ......
  • Wenzel & Henoch Const. Co. v. Metropolitan Water Dist., No. 7883.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • March 24, 1937
    ...20 L.Ed. 501; Parker v. Winnipisoegee Lake C. & W. Co. (1862) 2 Black, 545, 17 L.Ed. 333; Wagner v. National Life Ins. Co. (C.C.A.6, 1898) 90 F. 395; Southern Ry. Co. v. Clark (C.C.A.6, 1916) 233 F. 900; Enelow v. New York Life Ins. Co. (1935) 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. Courts of ......
  • Request a trial to view additional results
44 cases
  • United States v. Feldman, No. 17-13443
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 30, 2019
    ...the person guilty of fraud."); 1 Page on Contracts § 341, at 544–45 & n.2 (collecting decisions); see also Wagner v. Nat’l Life Ins. Co. , 90 F. 395, 404 (6th Cir. 1898).So, if our analysis in Takhalov means that the federal fraud statutes punish only fraud-in-the-factum schemes, not scheme......
  • Pringle v. Storrow
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 8, 1925
    ...v. Virginia Bridge & Iron Co. (D. C.) 257 F. 877. Contra: Lumley v. Wabash R. Co., 76 F. 66, 22 C. C. A. 60; Wagner v. Natl. Life Ins. Co., 90 F. 395, 33 C. C. A. 121; K. C. So. Ry. Co. v Martin (C. C. A.) 262 F. 241; Manchester St. Ry. v. Barrett (C. C. A.) 265 F. 557; Plews v. Burrage (C.......
  • McLaughlin v. Chief Consol. Mining Co., 3835
    • United States
    • Supreme Court of Utah
    • December 4, 1923
    ...a full consideration it was decided by the Circuit Court of Appeals for the Sixth Circuit, in the case of Wagner v. National Life Ins. Co., 90 F. 395, 33 C.C.A. 121, Circuit Judge Taft delivering the opinion, that it is proper in a suit at law for the plaintiff [62 Utah 539] to meet a plea ......
  • Wenzel & Henoch Const. Co. v. Metropolitan Water Dist., No. 7883.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • March 24, 1937
    ...20 L.Ed. 501; Parker v. Winnipisoegee Lake C. & W. Co. (1862) 2 Black, 545, 17 L.Ed. 333; Wagner v. National Life Ins. Co. (C.C.A.6, 1898) 90 F. 395; Southern Ry. Co. v. Clark (C.C.A.6, 1916) 233 F. 900; Enelow v. New York Life Ins. Co. (1935) 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. Courts of ......
  • Request a trial to view additional results

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