Kelsey v. Universal Life Insurance

Hinman, C. J. The plaintiff complains of the ruling of the Superior Court in respect to the admission of evidence, and also of the charge of the court to the jury. He claimed to recover on a policy of insurance on the life of his first wife, and being himself an important witness in his own favor, he was on cross-examination asked how nearly he could tell the — 234 — date of his second marriage. To this question his counsel objected, on the ground of its irrelevancy, and because the answer might prejudice the plaintiff and his case in the estimation of the jury. But the court permitted the question to he put, in order to test the accuracy of the witness’s memory. It appears to us that this ruling was so far a matter of discretion with the court that a new trial ought not to be granted on account of it. It is said that the enquiry related to a matter wholly irrelevant to the issue. In one sense it undoubtedly is so, since his second marriage, and the time of it, could have no influence upon his right to recover upon the policy on the life of his first wife. But the credit that is to be given to the testimony of a witness is always material, and may depend very much upon the accuracy of his memory, as well as upon his disinterestedness and honesty. And in the case of a witness standing as this one did — the sole party plaintiff in the suit — who was charged by the defendants with having procured a large insurance upon the life of his wife, at a time when he knew, or might easily have known, that she had a fatal disease fastened upon her, the court ought to allow such enquiries as would test him most fully. As remarked by Savage, C. J., in Lawrence v. Barker, 5 Wend., 305, “ there may be cases where great latitude of examination may be permitted, arising from the disposition, temper and conduct of the witness, which can be regulated only by the discretion of the court, and for which it is difficult to lay down a precise rule.” And this court, in Steene v. Aglesworth, 18 Conn. R., 244, lays down the proposition, that on the cross-examination of a witness much must be left to the discretion of the judge. In this case the witness had been asked if he remembered the date of his first marriage, and he fixed the year by reference to his own age at the time ; and immediately the question as to the time of his second marriage was put, and on objection allowed, to still further test the accuracy of his memory. We think under the circumstances the court must be held to have exercised its discretion properly in allowing the question to be put. — 235 — But it was objected that the answer of the witness might tend to prejudice the plaintiff’s case in the estimation of the jury. If this was so, it was for the witness to object to giving an answer, and not for his counsel engaged in the trial; and it does not appear from the motion that the witness himself had any objection to answering the question. In the case of Thomas v. Newton, reported in Mood. & Malk., 48, note, Lord Tenterden said that an objection of this sort belonged to the witness, and he would not permit counsel even to argue it. See also Commonwealth v. Shaw, 4 Cush., 594. Besides, the answer which the witness gave to the question shows that the plaintiff’s case could not have been prejudiced by it. His second marriage was not far from six months after the death of his first wife. The fact that he had procured a policy for a large amount on the life of his first wife, so near the time of her death, and then in so short a time afterwards, and while this suit was pending upon that policy, married again, might tend to show that he had no very delicate feelings in respect to her memory; but this probably is not unfrequently the case in respect to the parties to suits; and we are not aware that it tends to prejudice their causes in the estimation of juries. We do not think a new trial ought to be granted on this ground. Again it is claimed that the court erred in admitting in evidence certain declarations and letters of Mrs. Kelsey, made and written about the time the policy was issued. In her application for the policy she had represented herself in her usual state of health, as having never had any disease except a slight bronchial difficulty in the winter, nor any serious illness or local disease, nor any disease tending to impair her constitution ; and that when she had any medical attendant it was Dr. Hawley. And the declarations and letters received in evidence tended strongly to contradict these statements. The claim of the defendants was that the statements in the application were untrue, and known to be so by the plaintiff; and that the policy was therefore obtained by fraudulent representations in respect to Mrs. Kelsey’s health; and these — 236 — declarations and letters, contradictory to her statements in the application for insurance, wore received for the purpose of proving the fraud. The ruling on this point is fully sustained by the case of Aveson v. Lord Kinnaird, 6 East, 188. That was also an action on a life policy on the plaintiff’s wife, and, as in this case, the wife had made representations in her application for the policy in regard to her health which were allowed to be disproved or contradicted by her subsequent declarations to a witness. The difference between the two cases in this respect seems to be, that in the case in East the declarations proved were made shortly after she had made her statement to a medical man in order to procure a health certificate, while in the case under consideration the declarations and letters were made and written just before or not long before her statement in the application for insurance. But this surely is unimportant, since it is equally competent to prove the condition of the life insured before and after the time of the insurance, with a view to show what its condition was at that time. And all that is required is, that the declarations and acts proved should not be so remote from the time as to shed no light on the health of the party at the time. One important ground upon which such declarations are received is, that they are part of the res gestœ. The subject of enquiry is the health of the person whose life is insured at the time the insurance is effected, and no one can have so perfect knowledge of that as the person himself. Medical men always arrive at their conclusions in respect to health by information in part derived from what their patients say, and what is said by them under circumstances which preclude any suspicion of collusion is as fairly a part of the res gestee in respect to health as symptoms learned from other sources. But the court charged the jury “that the conditions and agreements mentioned in the policy, having reference to the application, which was a part of the condition upon which the policy issued, are warranties of facts, which must be proved true in all particulars,” and the plaintiff insists 'that this charge is incorrect in point of law. In the body of the policy, — 237 — under the heading of “conditions and agreements,” is this first condition as to the application.' “ First, that the statements and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health or circumstances of the insured, affecting the interests of this company.” The reference here to the application is as clear and precise as in the case of Jennings v. Chenango County Mutual Ins. Co., 2 Denio., 75 ; and the facts stated in the application in that case were held to be warranties. It is true that in that policy the reference to the application alluded to it as forming a part of the policy, while in the case under consideration the words are, that the policy is made on the faith of the application, and that the statements in it are in all respects true. But we think this stipulation makes the truth of the material facts in the application as much a matter of contract obligation on the part of the insured, and conditions upon which the policy issued, and on the truth of which it was only to bind the company, as if the same had been embodied in the policy itself. And this has been the uniform doctrine of this court. As remarked by Judge Dutton, in Woodbury Savings Bank v. The Charier Oak Insurance Company, 31 Conn., 525, it has maintained the integrity of contracts, and the necessity of a strict compliance with all conditions affecting their validity. And he refers to several of our insurance cases, in which statements contained in applications for insurance llave been held, with great uniformity, to be warranties. Judge Sherman, in the case of Wood v. The Hartford Fire Insurance Co., 13 Conn., 544, perhaps states the law as strongly as it is anywhere laid down, and it may be said goes to the verge in his statement of it. Yet the doctrine as he states it, though somewhat questioned by Judge Ellsworth, in the Glendale Manufacturing Company v. Protection Insurance Company, 21 Conn., 32, as applicable in all cases to fire policies, has never been overruled. While, however, we are satisfied that the charge of the court — 238 — was correct in this case, it is proper to remark that in our opinion it is not very important whether the statements in this application be regarded in the light of technical warranties, or be treated as mere representations of fact, which must be substantially true. The facts stated in the application, regarding the health of Mrs. Kelsey, must be admitted to be important, and material to the risk, and therefore, if untrue, would avoid the policy as fully as if they were considered as technical warranties. If untrue, as we have no doubt the jury must have'found them to be, the plaintiff, and especially his wife, who was his agent to make the application, must have known them to be so, and as they were not disclosed to the company at the time the insurance was effected, the plaintiff is justly chargeable with fraud in procuring an insurance upon such a life. And the application itself provides expressly that any suppression of facts or any untrue or fraudulent answers shall render the policy void. And it would seem that there can be but one opinion on the question of fraud, if Mrs. Kelsey’s letter to her mother, but three days previous to her application for the policy, is to be regarded as true. In that letter she expressly states that the doctor says her lungs are healing, and that he thinks if she lives till spring she shall get well. And the whole letter indicates that in her opinion there was doubt_as to her living till spring, in consequence of the condition of her lungs. Now if it be admitted that her hopes of final recovery were so strong as to induce her to say in her application three days after that she only had a slight bronchial difficulty in winter, how could the husband, knowing, as he must have done, what the doctor said of her lungs, allow her to sign an application for insurance upon her life, in which it is said she never had had any serious illness ? Without therefore alluding to the fact that in this very letter she speaks of another physician than Dr. Hawley, under whose treatment she had been, we can have no doubt that the jury must have found the fraud submitted to'them. We are therefore satisfied that the case was cor — 239 — rectly put to the jury on the question of fraud, as well as upon the question of warranty; and that it was correctly disposed of by them. We do not advise a new trial. In this opinion the other judges concurred.