Logia Suprema De La Alianza Hispano-Americana v. De Aguirre

CUNNINGHAM, J. The age of an applicant for insurance upon his life is regarded by all insurance companies as very important, both as affecting the risk assumed and in fixing the premium to be charged. When an applicant for insurance misrepresents his true age, he has imposed upon the company in such a material matter as to invalidate the contract of insurance, and thereby relieves the company from liability thereunder. The issue raised in this case is the true age of the insured, and the question for solution is whether the affidavits offered by the defendant are competent testimony tending to establish his true age as different from his age as represented by him in his application for insurance. [393] At the most, the statements of his age, made by him to the registration officer, contained in the affidavits could be no more than declarations or admissions made by the insured concerning his age, which are inconsistent with the statements made in his application for insurance concerning the same fact. The statements made in the three affidavits and in his application for insurance and to the medical examiner are nothing more than inconsistent statements of the declarant made by him at different times. If he were under examination as a witness, and his actual or true age was in issue, and he should testify that he was born August 2, 1863, he could be asked concerning his statements made in his registration affidavits for the purpose of showing his credibility as a witness, and the jury could consider such inconsistent statements in arriving at his true age. This contingency does not arise in this ease. The insured is not a party to the suit nor interested therein. He is not a witness in the action. To discredit a material condition in a contract is a very different thing from discrediting a witness’ testimony before a jury. It is difficult to understand how a general statement that one is forty-two years of age, made on a certain date, could tend to prove the true age of the person as against his definite statement that he was born August 2, 1863, and was forty-four years of age, made at another date, when the two statements were made in transactions in which the true age in one Was material and in the other immaterial. In the first ease, without a further statement of facts, the declarant states his conclusion that he is forty-two years of age; in the latter statement he says he was born August 2, 1863, and is forty-four years of age. If he should have stated the date of his birth, it was a simple matter to reach the conclusion he reached in his application. The two statements are not of equal probative force; one is a mere conclusion of the declarant, while the other states a fact from which a conclusion can •be reached. The issue on trial was the true age of the insured on April 28, 1907. If we take the statement made in the affidavit for the purpose of registration of date of June 20, 1906, as nearest in point of time to the date of the application, we find the statement to be “that my age is forty-eight years.” In April following we find the insured stating, when applying for membership in and contract with [394] defendant for insurance, “I was born . . . the 2d of August, 1863. My age is forty-four years.” In the latter statement his true age was material; in the former the true age is not material nor was the correct statement of the age of the applicant an essential condition of his right to be registered. The courts are not altogether uniform on the question of the admissibility of the declarations and admissions of the insured, made by him before or after his application for his insurance, relating to his health or his age. The weight of •authority appears to establish the general rule that such declarations or admissions of the insured, subject to the general rules relating to evidence of declarations or admissions as a part of the res gestae are inadmissible to show the falsity of his statements in his application and answers in his medical examination. Case-note, 11 L. R. A., N. S., 92, to Taylor v. Grand Lodge A. O. U. W. In a case decided as late as October, 1908, the Wisconsin supreme court in Johnson v. Fraternal Reserve Assn., 136 Wis. 528, 117 N. W. 1019, passing upon this question, says: “The beneficiary in a policy of insurance, whether issued by a fraternal society or otherwise, has such a vested interest therein that, upon its maturing without such interest having been devested and an action being brought by such beneficiary to enforce the policy, alleged misrepresentations made by the assured in taking it out cannot be supported by evidence of his declarations, unless they were made so near the time of the application and so closely related thereto as to so characterize some act or fact respecting his then condition as to be a part of the res gestae; that otherwise such evidence is not admissible, in the absence of independent proof of the falsity of the application in respect to matters'referred to in the declarations, and then only to prove knowledge of such falsity on the part of the assured.” In Supreme Lodge K. of H. v. Wollschlager, 22 Colo. 213, 44 Pac. 598, the court, on the issue of age of the insured, holds that declarations made by hi-m in applications for membership in the Grand Army of the Republic, also.for membership in other orders, and for pensions and increase of pensions, are not admissible to contradict statements made in the application for the insurance policy in suit. In Yore v. Booth, 110 Cal. 238, 52 Am. St. Rep. 81, 42 Pac. 808, the question is the admissibility of [395] statements of the age of the insured made in applications to other companies for insurance, and the statement of his age, appearing on the great register of the county in which he voted, offered to establish the age of the insured as different from that stated in application for the policy in suit. The court held such statements inadmissible as tending to prove no fact at issue. To the same effect are: Granger’s Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446; Rawls v. American Mut. L. Ins. Co., 27 N. Y. 282, 84 Am. Dec. 280; Union Cent. L. Ins. Co. v. Cheever, 36 Ohio St. 201, 38 Am. Rep. 573; Dial v. Valley Mut. L. Assn., 29 S. C. 560, 8 S. E. 27; Valley Mut. L. Ins. Co. v. Teewalt, 79 Va. 421; Wilson v. Life Assn. of Am., 6 Ins. L. J. 240, 3 Cent. L. J. 715, 765, Fed. Cas. No. 17,818; Dillerber v. Home Life Ins. Co., 69 N. Y. 256, 25 Am. Rep. 182; Mobile L. Ins. Co. v. Morris, 3 Lea (Tenn.), 101, 31 Am. Rep. 631. A great many additional cases may be cited to the same effect. We think the weight of reason, as well as the weight of authority, clearly supports the rule rejecting such declarations where they are no part of the res gestae, explain no fact in the application for insurance, and are made in a transaction where the exact age of the insured is not material to the matter then before the mind of the declarant. The ruling of the court in excluding the affidavits for the purpose of registration was without error. It follows that it was immaterial that such order was made at a late stage of the trial. The appellant could suffer no injury from the exclusion of incompetent testimony at any stage of the trial. At most, the appellant could only complain that the logical time to exclude the testimony was at the time it was offered. The order in which a trial is conducted, evidence is offered, received or excluded, is in the sound legal discretion of the trial court, and nothing less than a clear abuse of such discretion, resulting in apparent injury to a party, should eall for a reversal by this court. No such condition is shown by this record. The judgment and order of the trial court are affirmed. FRANKLIN, C. J., and ROSS, J., concur. Application for rehearing denied. [396] NOTE.—As to warranty, as distinguished from mere representation, in life insurance, see note in 37 Am. St. Rep. 372. As to materiality of representation by the insured, see note in 3 Am. St. Rep. 633.