66 Me. 523 | Me. | 1876
On the third day of October, 1873, the defendant, Warren, procured of the plaintiff company a policy of insurance payable to himself, upon the life of his sister, Serecta Anna Warren. The policy was issued upon an application purporting to have been signed by the assured and his sister, in which the health of the said Serecta was fully set out and described in answer to questions therein propounded. "Very soon the said Serecta died, and upon proof of the death the company paid the amount due, and now seek to recover it back on the ground of fraudulent representations, in which it is alleged that all the defendants were participants. These alleged fraudulent representations consist mainly in the answers found in the application relating to the health of the person to be insured. In order to establish these allegations, the plaintiffs offer certain declarations of the said Serecta, relating to her health at or about the time of the application, and others made just before her death, for the purpose of showing the falsity of the answers in «the application.
These declarations offered and rejected were of two classes, first
Usually such testimony comes from a party, and is offered in his own behalf. In this case it comes from one who was neither a party to the record, nor in interest, one who, if she had been living, would have been a disinterested witness pecuniarily. Still the same principles apply in either case. The health of the person whose life was insured, was the ground upon which the policy was issned, and a true description of it was necessary to the validity of the contract.
If the action were upon the policy, it might have been sufficient to show the representations false. In this case it is necessary to go one step further, and bring a knowledge of it home to the defendants, to show that they were participants. In either case, the truth of the representations is in issue, and the principles applicable to the testimony upon this issue the same.
The general rule applicable to such cases would make this testimony hearsay. But to this rule there are many exceptions, and when the declarations come within any exceptions they become original testimony. When the fact of such a declaration having been made is to be proved regardless of its truth, it is original testimony necessarily. When an act of a third party is material, and has more or less weight according to the motive which prompted it or the purpose for which it was done, under well known and established principles of law, any cotemporaneons declarations explanatory of that act are admissible as a part of it. The same principle will apply when it is material to prove the physical health or bodily or mental feeling of any person.
In this case it became important to prove the condition of health in which the said Serecta was at the time of the application. Witnesses testified as to certain indications of ill health. These indications may have a slight or a deep foundation, or may be entirely illusory. What she may have said in explanation of them at the time has universally been regarded as res gestes and, as
It is particularly to be noticed that in this definition the decía-rations are such as are “made at the time in question,” and relate to the “malady under which he is laboring at the time.”
In Bacon v. Charlton, 7 Cush. 581, 586, Bigelow, J., says: “The rule is now well settled, and it forms an exception to the general rules of evidence, that where the bodily or mental feelings of a party are to be proved, the usual and natural expressions of such feelings, made at the time, are considered competent and original evidence in his favor.” In Insurance Company v. Mosley, 8 Wall. 397, the rule with its limitations and restrictions is fully stated and settled in accordance with the other authorities cited. The rule itself seems now to be settled beyond question ; the only difficulty is in its extent and, application. In the case last cited the principle seems to have been carried to the extreme limit, and so far that two of the judges in a very able opinion by Clifford, J., dissented in part.
The principle as laid down by Greenleaf and Bigelow, above cited, was not questioned, but its application to certain declarations as to the cause of the injury, was denied in the dissenting opinion, while the court admitted the declaration on the ground that it was so near the time, and so connected with it by the circumstances developed, that it was in fact a part of the thing to be proved. Ashland v. Marlborough, 99 Mass. 47, is to the same effect. So also, Jacobs v. Whitcomb, 10 Cush. 255.
Is the rule sufficiently extensive to cover the declarations in relation to the “cause of her then present sufferings, and the length of time they had existed ?” From the testimony weTearn that these declarations were made a few hours before her death, and after she became conscious that she could not live, and relate
In Emerson v. Lowell Gas Light Co., 6 Allen, 146, it was held that “a plaintiff’s narrative of past events, though made to his attending physician, are incompetent evidence in ins favor.”
There is undoubtedly a distinction to be made between declarations made to an attending physician, and such as may have been made to others; much more liberality is to be allowed in the former case than in the latter. This is allowed on the ground of their necessity, to enable t,he physician to form an opinion as to the true condition of the patient, as well as because the professional man is less liable to be deceived than others. But even in such case it is rather to show the reasons and foundation of the medical opinion, than as substantive proof of the facts stated. Barber et ux. v. Merriam, 11 Allen, 322. But the limits of the rule under discussion are so clearly laid down by Clifford, J., in his dissenting opinion in Insurance Co. v. Mosley, that it is unnecessary to pursue the discussion further. It is clear that the rule itself is not sufficiently broad to cover the second class of declarations offered, while the principles upon which it is founded, and the limitations to it, established by the decisions, will exclude them.
But it is claimed, that as the application was produced by the defendants, with Sereeta’s name attached to it, thereby giving it her sanction, the plaintiffs should be permitted to put in her subsequent conflicting statements to prove its falsity. But she was
In opposition to these cases we have that of Aveson v. Lord Kinnaird, 6 East. 188, cited and relied upon in the argument, This case, so far as the question under discussion is concerned, is like the present and fully sustains all that is claimed for it. It is cited in Gilchirst v. Bale, 8 Watts, (Pa.) 355, as authority for the doctrine there enunciated though the latter case does not go so far as the former. It is also cited in many more modern cases with approbation and without any suggestions that the principles sustained are in any respect to be limited or qualified. In an earlier case that of Climer v. Littler et al., 3 Burr. 1244, where a question arose ás to which of the two wills should be established as the true one, the later was in the hand writing of William Medlicott, who had possession of both, and was also a subscribing witness to the last one. This Medlicott on his death bed took the earlier will from his bosom and delivered it to his sister, saying “it was the
But a more careful examination of it will very much detract from its force in that respect. Both wills were in the possession of Medlicott, and had by him been secreted, and the competency of the testimony is made evidently to rest very much, if not mainly, upon these facts. In the opinion it is further said in relation to the first will, “it was necessary to show how it was secreted, and how it was discovered; the declaration of Medlicott in his last illness, when he delivered it for the use of the plaintiff, is allowed to be competent and material evidence;” and of the last, “the instrument of 1745, it was equally in his custody and secreted. The account he gave of it in his last moments, is equally proper.” We think, therefore, the decision may be sustained upon the ground that the declarations were a part of the res gestes, and does not afford much aid to Aveson v. Lord Kinnaird, in sustaining the principle under discussion.
In White et ex. v. Holman, 32 Maine, 157, 160, Weston, C. J., after analyzing Aveson v. Lord Kinnaird, says, “in our opinion, no general principle can be extracted from a case, so peculiar in character.”
In Stobart v. Dryden, 1 Mee. & W. 615, it was held that declarations made by a deceased attesting witness, respecting the attested instrument, are not admissible in evidence, though admissions of fraud or forgery on his own part, and though his handwriting has been proved as proof of the instrument, and Aveson v. Lord Kinnaird, was overruled.
Thus it will be seen that the last named case so far as it author
The result is that, such declarations of the said Serecta, as were descriptive of her state of health at the time they were made, and were “such complaints, exclamations and expressions as usually and naturally accompany and furnish evidence of a present existing pain or malady,” as were offered and excluded, should have been received. While the second class offered, relating as they did to her past condition, and being “in the nature of narrative or statement,” were properly excluded. It is to be understood that in order to make such declarations admissible, it must first appear that at the time when made, her condition as to health was a material fact to be proved.
We do not mean to intimate an opinion that it may not be material to prove the nature of the disease of which she died ; and in proving that, such declarations as come within the principle indicated may be admissible. If from such proof it should appear, that her death was caused by such a disease as must necessarily have existed from a period anterior to the date of the application, or by a fair inference may be considered as having a bearing upon her condition at that time, we see no objection to its use for that purpose.
There is also a motion in the case to set aside the verdict because it is against the law and the evidence, and “because James Cutts, one of the jurors, who was summoned as a talesman to serve on the panel which tried and returned a verdict in this case, was not legally qualified to serve thereon in said trial.”
It appears from the testimony that two of the defendants, Warren and Curtis, had prior to the trial in this case been convicted under an indictment for the same offense as that charged in the writ, and had received their sentence therefor. The testimony also satisfactorily shows that the juror, Cutts, had signed a petition for the pardon of Curtis on the ground that “he has been sufficiently
The verdict in this case is so clearly against the testimony that it would be difficult to account for it upon any other ground than that the jury failed to comprehend the distinction between a civil and criminal proceeding upon the same charge, and thus the plain
Exceptions and motion sustained.