107 F. 402 | 5th Cir. | 1901
(after stating the facts as above). 1. The failure of the court to give the three charges requested by the plaintiff in error, and the giving of the first eight against: its objection, all of which we have set out in full, raised practically the same question. The distinguished counsel for the plaintiff in error contend that the application for insurance was made the foundation of the policy, and that its statements are covenanted to be trae, and that if
The contract of insurance was made and delivered, and the premiums paid, in the state of Georgia, where the insured resided. It is therefore a Georgia contract, and is governed by the laws of that state. Society v. Pettus, 140 U. S. 226, 11. Sup. Ct. 822, 35 L. Ed. 497. The following are sections of the Code of Georgia of 1895:
“See. 2097. Application, Good. Faith. Every application for insurance must be made in the utmost good faith, and the representations contained in such application are considered as covenanted to be true by. the applicant. Any variation by which the nature, or extent, or character of the risk is changed, will void the policy.”,
“Sec. 2099. Concealment. A failure to state a material fact, if not done fraudulently, does not void; but the willful concealment of such a fac-t, which would enhance the risk, will void the policy.”
“Sec. 2101. Willful misrepresentation by the assured, or his agent, as to the . interest of the assured, or as to other insurance, or as to any other material inquiry made, will void the policy.”
These sections are made applicable to both life and fire insurance. Code Ga. §2117..
It may he stated as a general rule that answers to questions propounded to insured in an application for insurance, unless they are clearly shown by the form of the contract to have been intended by both parties to he warranties to be strictly and literally complied with, are to he construed as representations and not as warranties. Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644. One of the statements that the insured was required to make to obtain the insurance was that he was “free from any and all diseases,”
'We are not: unmindful of the fact that the insured distinctly certifies that the statements in his application are true, and that: he agrees that, if any concealment or untrue statement or answer he made, the policy of insurance shall be void. Referring to the Georgia statute, and probably without the statute, concealment; means "willful concealment.” By that statute it is only the willful misrepresentations and willful concealments that affect the policy. And when the insured agrees that the policy shall be void if it contains any untrue statements, what, does he mean? He surely means "untrue,” in the sense of the law which governs the contract. He means, to quote the Georgia statute, that there is no willful concealment and no willful misrepresentation, and that his statements are made in the utmost good faith. 'Construing a life policy, Mr. Justice Harlan asked what was meant by true and untrue answers, and be answered the question, saying:
“In one sense, that only is true which is conformable to the actual state of tilings. In that sense, a statement is untrue which does not express things exactly as they are. But, in another and broader sense, the word ‘true’ is often used as a synonym of ‘honest,’ ‘sincere,’ ‘not fraudulent.’ Looking at all the clauses of tlie application, in connection with the policy, it is reasonably clear — certainly the contrary cannot be confidently asserted — that what tlie company required of the applicant, as a condition precedent to any binding contract, was that lie would observe the utmost good faith towards it. and make full, direct, and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation, or concealment of facts with which the company ought to lie made acquainted, and that by so doing, and only by so doing, would he be deemed to have made ‘fair and true answers.’ ” Moulor v. Insurance Co., 111 U. S. 335, 345, 4 Sup. Ct. 466, 28 L. Ed. 447.
The application in the case at bar does not contain the word “warrant ed.” It purports to be a declaration or statement., and not a warranty. In Moulor v. Insurance Co., supra, the word “warranted” was used in the application which was part of the contract sued on.
Recently, the supreme court of Georgia has had occasion to construe section 2099 of the Georgia Code. In the court below the request had been made for a charge that the policy would be made void if the applicant failed to give the names of other insurance companies to which he had applied for insurance. He had given the name of one, when he had applied to several. A charge was also asked that the policy would be made void'because he had given the name of only one physician who had attended him during the last 10 years, when, in fact, during that time he had been attended by several others. The trial court refused to give these charges, and the refusal was assigned as error in the supreme court. It was held, Fish, J., delivering the opinion of the court and all the justices concurring, that the court did not err in refusing to give the charges. “It will be seen,” said the learned justice, “that, if the instruction requested correctly stated the law, a policy would be avoided because of a mere omission upon the part of the assured to state a material fact, without reference to the motive by which he was influenced in omitting to make such statement. An omission to state is the equivalent of a failure to state, and by our Civil Code (section 2099) it is expressly provided as follows: ‘A failure to state a material fact, if not done fraudulently, does not void; but the willful concealment of such a fact, which would enhance the risk, will void the policy.’ The request under consideration was not adjusted to the section of the Code we have just quoted, because if the failure to state the fact was the result of an oversight or other cause, and was not done fraudulently, it would not avoid the policy. The omission from the request of the word ‘fraudulently’ put it in direct opposition to the Code provision above referred to, and it was therefore properly refused by the court.” Association v. Farley, 102 Ga. 720, 744, 29 S. E. 615.
2. Martin A. Jeffords applied for and obtained the policy on his own life. He is conclusively presumed to have an insurable interest in his own life. Bliss, Ins. § 17. He directed who should be the beneficiaries. His wife was to receive $3,000, and his brother, Thomas C. Jeffords, $10,000. This latter sum, by agreement between the parties, was “to protect his child or children.” He had one child to survive him. The first premium was paid out of the-money of Martin A. Jeffords. The other premiums were paid by Thomas C. Jeffords for his brother. The insurance company receipted for the money as paid by Martin A. Jeffords. The fact that Thomas C. Jeffords paid the premiums did not invalidate the policy. On the facts stated, it was not a wager policy. A man may take out a policy of insurance upon his life for the benefit of his brother, and it is immaterial what arrangement is made between them for the payment
3. The court charged the jury that they should closely scan evidence prepared by William E. Gary and E. C. Milliken, inspectors of the defendant in error. Gary obtained a written statement of Mrs. Jeffords, the widow of the insured, and Milliken obtained a written statement from Dr. Hall. These statements were offered in evidence, and tended to contradict the evidence of Mrs. Jeffords and Dr. Hall given on the trial. The charge referred to is numbered 10, and is set out in full in the sta tement of the case. The giving of this charge is assigned as error. William E. Gary, one of the inspectors, sought and had two interviews with Mrs. Jeffords, — one in Georgia and one at her home in Florida. Gary, on cross-examination, stated that he informed her of the “result” of some suit recently brought against an insurance company where the defense of fraud and conspiracy was made, and he told her “that if the company refused to pay her she could not recover * * * unless the courts reversed themselves. I cited cases, no doubt.” He denied making any threats, saying: “I have been in this business twenty years, and I never make any threat in any case, sir.” An important question in the case was whether Dr. Hinman had examined the insured after the policy was issued, or in 1894, before it was issued. Gary testified that Mrs. Jeffords said “it was in 1894.” Mrs. Jeffords testified,as to the interviews. She said that “Mr. Gary seemed very sympathetic”; that the paper she signed was written in his presence, .and partly from his dictation; that Gary assured her that her claim would be paid in full; and that she was very much agitated when she wrote the paper. The statement signed by Dr. Hall, which was offered in evidence, was obtained by the other inspector, E. O. Milliken. Dr. Hall’s evidence tended to show that the statement was not entirely correct. Milliken approached Hall, and asked him to sign the paper. Dr. Hall testified:
“Q. Under what circumstances did they get that statement from you? A. He [Milliken] was going over there. Seemed to be gathering up proofs for his side of the cuse. He was wanting to write them up and outline the manner in which they might not be mistaken, and that my interrogatories might corroborate such statement as I made to him. And at that time I told him, when he drew up those papers, that some things are not fresh in my mind at the moment, and T told him at the time, if I recollected things more clearly, I should correct them. Q. You reserved the right to make corrections? A. Yes, sir.”
Dr. Hall’s evidence tended to show that the statement prepared by Milliken and signed by him wras materially inaccurate.
In this state of the evidence, we think the court was amply justified in giving the instructions. These inspectors were the agents of the plaintiff in error. They were engaged in preparing a defense in this case. An insurance company can only act through its agents. It is, as the learned trial judge said, a legitimate business to investigate the facts of a cáse that will probably be litigated. Still, the fact that agents so employed are likely to be partial to their prinei