Mutual Benefit Life Insurance v. Wise

Grason, J., delivered the opinion of the Court. The record in this cause contains two exceptions, the first, taken to the ruling of the Court below in excluding from the consideration by the jury the evidence therein set out; and the second, to the rejection of ten of the eleven prayers offered by the appellant, its first prayer having been conceded. The rejected prayers all relate to certain answers made by Henry A. Wise, Jr., to questions five, eleven and fifteen put to him before the policy was issued by the agent of the appellant. The appellee, by her declaration in writing, dated the seventeenth day of May, in the year 1867, (the same day the policy-bears date,) and filed with the application, declared that the age of said Henry A. Wise, Jr., at his next birth-day thereafter, would be thirty-three years.; that he did not, to the best of her knowledge and belief, practice any bad or vicious habit that tended to shorten life, and that she had an interest in his life to the full amount of $20,000; and she thereby agreed that the answers of the said Henry A. Wise, Jr., and those of his friend and physician, should be the basis of the contract between herself and the company, and that if any untrue or fraudulent allegation should be contained in those answers or in said declaration, all moneys which should be paid to the — 597 — company on account of the insurance, made in consequence thereof, should be forfeited for the benefit of the company. The policy contains a stipulation that it shall be void if “the declaration made by the assured, and upon the faith of which this agreement is made, shall be found in any respect untrue.” The fifth, eleventh and fifteenth questions, to which the prayers refer, and the answers thereto, are as follows: “ 5. Has the party been or is he now employed in any military or naval service?” The answer was “no.” “11. Has the party had any sickness within the last ten years; if so, what?” The answer was, “pneumonia in 1862.” “15. Has any company declined to insure the party; if so, what company, when, and for what reason ?” The answer was “ no.” The contract between the parties having been entered into upon the basis of the truth of these answers, it becomes necessary to ascertain whether they constitute warranties, which cast upon the assured the onus of proving the literal truth of them, or whether they are representations merely, and if representations, whether their materiality, as well as their truth, is to be passed upon by the jury. We have carefully examined and considered the authorities referred to in the argument, and are of opinion that the true rule of construction of contracts like this, is that adopted and acted upon in the cases of Anderson vs. Fitzgerald, 4 House of Lords’ Cases, 503-514, and Campbell vs. New Eng. Ins. Co., 98 Mass., 381. Both of those eases presented questions almost identical with those raised in this case, and in each of them it was held that the answers were not warranties, but representations made material by the agreement of the parties, and, therefore, that their truth alone was open to the consideration of the jury. In those cases, it was also held that it was not incumbent upon the insurer to show that the answers were morally false, but that if they were shown to be simply untrue, it would be sufficient to defeat the plaintiff’s action. Being satisfied that those cases announce the true rule of construction of such — 598 — contracts as the one before us, we will now proceed to consider the prayers. The second, third, ninth and tenth prayers refer to the eleventh question and answer. Upon the theory of these prayers, notwithstanding the jury might find that Mr. "Wise’s answer that he had pneumonia in 1862, was true, yet their verdict must have been for the appellant, if they further found that he had had “ chronic pharyngitis ” within the ten preceding years, and that he had not communicated that fact, and that he had been treated therefor by a physician, however innocent he may have been in making said answer. By the tenth question, Mr. Wise’s attention had been directed to certain diseases, specifically enumerated therein, and had been asked if he had had any of those diseases, and upon his replying in the negative, he was asked by the eleventh question if he had had any sickness within ten years. It is not alleged that the answer to this question, as far as it went, was untrue, but it is contended that it ought to have gone further and disclosed the fact that he had had “chronic pharyngitis” in 1860 or 1861. There is evidence in the record to show that pharyngitis is an inflammation of the throat, and, when slight, not to be called a sickness, and not likely to shorten life. If "the policy in this cáse is to be avoided by the fact of Mr. Wise having had this affection in 1860 or 1861, and by his not having disclosed that fact in his answer, then, if he had suffered from any slight indisposition or sickness within the same period, and had failed to communicate that fact in answer to the eleventh question, the policy of insurance would' have been made void. His attention having been directed by the tenth question to certain diseases particularly named therein, Mr. Wise may have very naturally supposed that the eleventh question had reference to diseases or sicknesses of the same class, and like importance. It will be recollected that pharyngitis is not named in either the tenth or eleventh questions, and that there was proof to show that it is an affection slight in its character and effects; and if, as matter of law, a — 599 — policy is to bo avoided, if a party insured is shown to have had it some six or seven years before insurance, and that he failed to make it known in answering a question like the eleventh, then policies on lives, where the truth of answers to questions is made the basis of the contracts, would be mere devices by which insurance companies could obtain money, by way of premiums, without becoming liable upon the policies issued to the insured. The four prayers now under consideration were therefore properly rejected, because they did not leave it to the jury to find from all the evidence before them upon this matter, whether “chronic pharyngitis” was a “sickness ” in contemplation of the parties in putting and answering the eleventh question, in addition to the other facts which these prayers required the'jury to find. The eleventh prayer denied the appellee’s right to recover if the jury should find that Mr. Wise was a chaplain in the Confederate army in the year 1862. The only evidence as to this point, was a statement of Mr. Haxall, who, without being inquired of about the matter, so testified at the trial below. The fifth question put to Mr. Wise, and answered by him in the negative, was: “ Has the party been, or is he now employed in any military or naval service?” There is no evidence to show whether a chaplain in the army is or is not in fact in the military service, and none to show that Mr. Wise was ever actually employed in said service, even if a chaplain can be said to be in the military service. He may have held the position of chaplain without having been ever actually employed. The onus of proving such employment was upon the appellant, and it was a question properly and exclusively for the jury to pass upon, and as the eleventh prayer did not-submit to the finding of the jury either the question whether a chaplain in the army is in the military service, or the question whether Mr. Wise, if in the military service, was ever actually employed in such service, it was properly rejected. - The fourth, fifth, seventh and eighth prayers refer to the fifteenth question and answer. In answer to the question — 600 — whether any company had declined to insure Mr. Wise’s life, he said “ no.” He had in fact made application to Mr. Bresee, general agent at Baltimore of the Mutual Life Insurance Company of New York, for insurance in that company. Mr. Bresee sent on to the president of his company, in the same letter, the applications of Macmurdo, Staley and Wise, and several days afterwards, received a reply from the vice-president of the company, in the following words, viz: “ I have received your letter, dated 1st May. I enclose policies No. 62,413, Macmurdo, . . . $36.13 “Staley, ....... Declined. “Wise, .... Returned. See mem.” The proof shows that Macmurdo’s policy was granted; that “declined” opposite Staley’s name, indicated that his application had been finally acted upon and rejected, and that the memorandum referred to in the letter as made upon Mr. Wise’s application was the word “returned ” or “withdrawn,” which indicated that his application might be reconsidered. Dr. Donaldson, the examining physician of the New York company, had reported that Mr. Wise’s weight did not correspond with his height by forty pounds. Mr. Bresee proved that Mr. Wise did not know that his application had been sent on to New York; that he had no means of knowing; that after it was returned from New York, he sent a message to Mr; Wise, that his company had some rules about a man’s weight corresponding with his height, and that he thought there might be some difficulty or doubt about his application passing, and advising him to withdraw it, and that Mr. Wise sent a message in reply, that he would not take a policy if the company would give it to him, that he would not insure in a company having such nonsensical rules. Mr. Winston, the president of the New York company, was twice asked, upon his examination, whether Mr. Wise’s601 application had been declined by his company, without eliciting a reply in the affirmative. The fourth and seventh prayers asked instructions, in substance, that, if Mr. Wise did not make known, in answer to the fifteenth question, the facts connected with his application to the Yew York company, the plaintiff was not entitled to recover. The Court below was right in rejecting those two prayers, because they did not submit to the jury to find, upon all the evidence in relation thereto, whether any other company liad declined to insure Mr. Wise’s life. That was a question exclusively within the province of the jury to pass upon. For the same reason, the fifth prayer, which asked the Court to say, as matter of law, that the above facts amounted to a declining of Mr. Wise’s application, was also properly rejected. The sixth and eighth prayers do not deny the appellee’s right to recover upon the ground of any want of truth in Mr. Wise’s answer to the fifteenth question, but upon the ground that it was the duty of Mr. Wise to have disclosed to the appellant all the facts connected with his application to the Yew York company and its return and fate. In other words, the sixth and eighth prayers are based, in effect, upon the theory of a fraudulent concealment by Mr. Wise of facts, which good faith and fair dealing required him to disclose. Mr. Bresee testified that Mr. Wise did not know that his application liad been sent on to Yew York; that he had no means of knowing ; that lie had never seen Mr. Wise after his application had been made out, and that he thought he had returned Mr. Wise’s application to him, as he had not been able to find it at his office. If Mr. W ise did not know that his application had been presented to and considered by the Yew York company, but believed that the suggestion for its withdrawal came from Mr. Bresee alone, for the reason that Mr. Wise’s weight did not correspond with his height, how can it bo said that there was any concealment of facts, or want of good faith in not disclosing them ? The prayers should have left it to the jury to find whether or not, upon all the evidence before — 602 — them, Mr. Wise knew all the facts connected with said application, its return and fate, and knowing them, concealed them. Not having submitted that question to the jury, the sixth and eighth prayers were properly rejected. (Decided 22d June, 1871.) We think that the evidence set out in the first bill of exceptions was clearly inadmissible. Whether Mr. Wise was so fatigued by the morning services in 1860 or 1861, that he had to omit services in the afternoon and have them in the evening, or whether, if such were the fact, it would have influenced Dr. Hartman, if known to him, in making up his opinion about recommending him for insurance in 1867, wc are at a loss to perceive how the questions at issue between the parties to this case can be affected by it. Air. Wise was asked no question in regard to it; there is no evidence to show that such a thing ever occurred after he left Philadelphia, even if it occurred there, upon which point the evidence is conflicting; it was irrelevant and therefore inadmissible. The only remaining question to be noticed, arises from the refusal of the Superior Court of Baltimore city to remove the case to the Circuit Court of the United States upon the petition of the appellant. It conclusively appears that Mrs. Wise, the appellee, was a citizen of the State of Virginia at the time of the institution of the suit, and therefore the provisions of the Act of Congress, .authorizing removals from the State to the Federal Courts, do not apply. Finding no error in the rulings of the Court below, its judgment must be affirmed. Judgment affirmed.