Arter v. Northwestern Mut. Life Ins.

DALLAS, Circuit Judge. This was an action by Lydia B. Arter (plaintiff in error) against the Northwestern Mutual Life Insurance Company (defendant in error) to recover upon a policy of insurance upon the life of her husband, Winfield S. Arter, who died upon December 37, 1901. The defense was that within two years from the date of his application for the insurance he had died by his own hand, and that, therefore, the company was not liable, because the application (which was expressly made a part of the contract) contained the following agreement: “It Is hereby declared and agreed alt the statements and answers written in this application, marked Part I, as well as those to be made to the Medical Examiner, marked Part II, are warranted to be true and full and fair answers to the questions and are offered to the company as a consideration for the Contract of Insurance, which shall not take effect until the first premium shall have been actually paid during the life of the person herein proposed for insurance, and while he is in good health. It is also agreed that if within two years from the date hereof, I shall pass south of the Tropic of Cancer, or be personally engaged in blasting, mining or sub-marine operations, or in the production of highly inflammable or explosive substances, or in switching or coupling or uncoupling cars, or be employed in any capacity on the trains of a railroad except as passenger or sleeping car conductor, mail agent, express messenger or baggage master, or in ocean navigation, or shall enter or be engaged in any military or naval service (except in time of peace), without a written permit therefor signed by the President or Secretary of the Company, or shall, within the said two years, either undertake an aerial voyage, or die in consequence of a duel, or, whether sane or insane, die Try my own hand, then, and in every such case, any policy issued on this application shall be null and void.” A Pennsylvania statute (Act May 11, 1881, P. L. 20) provides (section 1): “That all life and fire insurance policies upon the lives or property of persons within this commonwealth, whether issued by companies organized under the laws of this state or by foreign companies doing business therein, which contain any reference to the application of the insured * * * either as forming part of the policy or contract between the parties thereto, or hav [769] ing any bearing on said contract, shall contain or have attached to said policies correct copies of the application as signed by the applicant, * * * and unless so attached and accompanying the policy no such application * * * shall be received in evidence in any controversy between the parties to or interested in the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties.” The only substantial point presented by this record is whether the court below was in error in instructing the jury, with reference to the foregoing statutory provision, that a correct copy of the application was attached to the policy in suit, and in declining to submit that question to the jury. There was in fact a photographic copy attached to the policy, which comparison with the original demonstrates to be a correct one, and the only testimony upon the subject was that it is so. Therefore, if there were nothing more in the case, it would be difficult to assign any rational ground for objection to the action of the court; but the real subject of complaint is, not that the copy is not a correct one, but that it is not legible, and it has been not unreasonably urged that in fairness to the insured the original should not have been so greatly reduced in the reproduction. But the learned trial judge appears to have experienced no difficulty in reading it, and, although it has become somewhat blurred — probably since the trial — we, too, have been able to read it. Under these circumstances there was nothing to be left to the jury. The photographic print was certainly “correct,” and, in the absence of any specific designation or description in the statute, we know of no more apt test by which to determine whether it should be regarded as a “cop}"” than that supplied by Stephen (Dig. of Ev. p. 3) in defining the word “document,” which, he says, “means any substance having any matter expressed or described upon it by marks capable of being read.” The judgment of the circuit court; is affirmed. Note by the Court. The judgment in this case was determined upon prior to the death of the late Judge Kirkpatrick, and was concurred in by him.