Grangers' Life Insurance v. Brown

Chalmers, J., delivered the opinion of the court. This is a suit brought by Mrs. Brown upon a policy of life insurance taken out by her husband in his lifetime, upon his life, for her benefit. The company defends upon the ground that the husband, in his application for the insurance, stated that he had never received any serious personal injury ; whereas, in truth, he had in boyhood received a wound on the head by which his skull had been fractured, and been healed by the operation known as trephining. Upon the trial, which occurred about two years after the death of the insured, the company asked the court for an order to have the body of the deceased exhumed, with a view of ascertaining whether in fact such fracture had been sustained. The motion was based upon an affidavit stating that the defendant was advised and believed the fact to be so, but found it impossible to prove it, by reason of the fact that the boyhood of the insured had been spent, and the injury, if it occurred, had been received in Kentucky, and they found it impossible to produce any witnesses, living within the jurisdiction of the court, who could testify to the occurrence. The motion was denied, and, we think, properly. We are not prepared to say that in a proper case the court, in the interests of justice, should not compel the exhuming [314] and examination of a dead body wbicli is under the control of the plaintiff, if there is strong reason to believe that without such examination a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it. We are prepared to say, however, that such an order should be made only upon a strong showing to that effect. It would be a proceeding repugnant to the best feelings of our nature, and likely to be in many cases so abhorrent to the sensibilities of the surviving relatives that they would prefer an abandonment of the suit to a compliance with the order. Without undertaking to define with accuracy what circumstances would justify the making of such an order, we think that a case calling for it was not shown in this instance. The suit had been pending quite eighteen months before it was brought to trial, and during that time' no steps had been taken to procure any testimony tending to establish the defence set up, nor was there any competent legal testimony adduced upon the trial with this view. It is true that the physician, who attended the deceased in his last illness (which had no connection whatever with the alleged fracture of the skull), testified that the deceased told him that he had himself been told that when a child of four years of age he had met with such an accident; but it is quite evident that this could not be accepted as a basis for the desired order, since it was itself incompetent testimony. The deceased, according to this statement, knew nothing of the fact except from hearsay, and it is well settled that statements of a patient to his attending physicians are only admissible when they relate to his then present symptoms. If they consist of a narration of past events they are incompetent. Chapin v. Marlborough, 9 Gray, 244; Bacon v. Charlton, 7 Cush. 581; Collins v. Waters, 54 Ill. 485. The physician testified further, that when his patient made this statement to him, he examined his head and found marks of an old cicatrix, but he declined to say that it was evidence of a fracture and of trephining, and thought it equally likely to have been produced in other ways. The defendant then offered to prove by another witness that the deceased had made the same statements to him in relation to his skull having been fractured in childhood, but this testimony [315] was upon objection excluded, and, we think, properly. Although there is some conflict in the authorities, the decided weight of them holds that no statements of the insured, made after the issuance of the policy, are receivable in evidence to contradict the written statements contained in his application, where the policy is issued for the benefit of another. The insured in such a case is not a party to the record, has no interest in the policy, and, if he is to be considered as the agent of the beneficiary in procuring it, his agency ceases with its issuance, so that there is no legal ground upon which his statements can be received. Mulliner v. Guardian Ins. Co., 1 Thompson & Cook, 448 ; s. c. 4 Big. Ins. Rep. 267; Rawls v. American Ins. Co., 27 N. Y. 282; Fraternal Ins. Co. v. Applegate, 7 Ohio St. 292; Washington Ins. Co. v. Haney, 10 Kansas, 525. The court properly instructed the jury that the burden of proving the falsity of the answers contained in the application rested upon the company, and that the assured was not bound to prove their truth, though they were conceded to be warranties. The answers were mostly negative responses to interrogatories, covering every conceivable subject that could be of interest to the insurance company, and seeking information as to the applicant’s past suffering from, and present liability to, every disease or casualty known to man. To hold that no recovery can be had until the beneficiary has demonstrated, after the death of the insured, the truth of all these negative responses, would be virtually to declare that no recovery whatever can be obtained upon such a policy. The question is settled in accordance with this view by the Supreme Court of the United States, in Piedmont Ins. Co. v. Ewing, 92 U. S. 377. The policy being payable in the city of Mobile, eight per cent interest was properly awarded upon it according to the law of Alabama. There was no abuse of judicial discretion in refusing a continuance. Judgment affirmed.