26 F. 230 | U.S. Cir. Ct. | 1884
Lead Opinion
When this case was previously tried this application was produced, as it is now, for the purpose of proving fraud. I said then it was not necessary to consider (in the view I took of the law) whether the statute is in any case applicable to the trial of a cause in this court. I intimated no opinion or impression respecting it. Since that time this question has been decided, not upon this statute, hut upon a similar statute, in New York. The statute is held to be applicable to trial in this court.
The decision of that question, however, now, as it then was, is unnecessary, because the statute, in the judgment of the court, is inapplicable to a case such as this. To my mind, it is plain that the purpose of this statute was to exclude the application where it is not attached to the policy, bat is sought to be made a part of the contract, so as to qualify or affect the terms of the policy. It is inapplicable to a case where the purpose is to show, as here, that there was no application made by the insured; that the company was deceived and imposed upon, in the presentation of a paper purporting to be the application of the individual insured, when it was not. No such case was contemplated by the legislature, or there would have been provision to protect a party, under such circumstances, against the use of the application. How could the fraud alleged here, if it exists, bo set up in the absence of the paper? Suppose the defendants had undertaken to show, in the absence of the paper, that it was a for
The act of assembly says that an application made and not attached to the policy shall not be used in any way to qualify the terms of the contract. But the application is the foundation of the policy, — it rests upon it, — and can it not be shown that the company was qjroeured to issue this policy by the execution of a fraudulent application? It strikes at the obligation of the policy itself. It is not to be regarded as touching the construction of the paper itself, but as to the subsistence of the policy as an instrument binding the company. That seems to be a common-sense construction of the act of assembly.
The application having been admitted in evidence, the defendant’s counsel, in view of the admission made by plaintiff that Mary Mc-Caffrey did not herself sign the application, here requested the court to charge the jury, without going further into the evidence, that, as a matter of law, the plaintiff could not recover if the application were signed in the manner set forth in the admission.
Concurrence Opinion
After a lengthy argument of counsel, the following opinion of the court was rendered by Judge Butler, Judge McKennan concurring:
(charging jury.) The plaintiff put in evidence the policy of insurance and proofs of dedth, and there rested. The defendants, charging that the policy was fraudulently obtained, by means of a paper which, while it purported to be the application of Mary McCaffrey, the assured, was not, but was made and executed in her name by another in her absence, called witnesses to sustain the charge. Among these witnesses was the plaintiff in the suit, who testified that the signature was not Mary McCaffrey’s. When the case had reached this situation, the plaintiff’s counsel arose and admitted that the paper purporting to be the application of the assured was not signed by her, nor in her presence; stating at the same time that the person who signed it had been told by her that if an application for an insurance was brought to the house in her absence he should sign it for her. Here the case rested. In this state of the evidence the plaintiff, in our judgment, cannot recover. The policy and by-laws of the company require the written application of the assured, embracing answers to various interrogatories, made and executed by her in person. The paper before us, purporting to be her application, was presented to the company, and the policy thus obtained. This (whether designed or not) was a fraud. Upon its face, the policy shows that it was issued in the belief that the paper was
It was urged on behalf of the plaintiff that the admission of the paper, here called an “application,” is prohibited by the Pennsylvania statute cited, and that it cannot therefore he considered in this connection. If this were true, it is probable the plaintiff’s admission above referred to would of itself sufficiently establish the fact of imposition, on which the defendant relies. It is not true, however. The legislature did not contemplate such a case as this, and the statute is clearly inapplicable. The paper here, as we have already indicated, is not an application within the meaning of the statute any more than it is within that of the policy. It is not the application of the assured, except in appearance. It is a deceptive pretense.
While we have admitted the paper in evidence, it is not for the purpose of opening its contents to contestation, but simply as a means of proving that no application, within the meaning of the policy, was made; and that the defendant was fraudulently induced to enter into a contract of insurance without any reciprocal obligation on the part of the assured, as is plainly contemplated in the policy itself.
