Guaranty, etc., Society v. Ford

| Tenn. | May 17, 1900

Wilkes, J.

This is an action upon a policy upon the life of Jennie Ford. The policy was after death of assured assigned to J. W. Crane, and suit was brought in the name of the beneficiary husband, for use of the assignee, Crane. There was a trial before the Court and a jury in the Court below, and verdict and judgment for the amount of the policy and interest, in all $512.50, and the defendant insurance company has appealed and assigned errors.

The first assignment of error is to the effect that the proof of marriage of the deceased was so contradictory as to dates and circumstances that the trial Judge should have given the jury some instructions in regard thereto, and should not have completely ignored this feature of the case and left the jury to infer that no proof was necessary; and the second assignment is that the charge of the Court in regard to proof of death was not full enough, in view of the inconsistencies and contradictions of the -ease.

It is only necessary to say that both of these assignments go to show the paucity and meagerness of the charge, and such defect, if it exists, is not reversible error, unless specific instructions and a fuller charge are asked. We do not think, however, that the charge is subject to the criticism made.

The third assignment is to the refusal of the Court to give in charge a special request made in regard to the identity of the party, who died in Mississippi, as being the party assured.

These instructions are not set out in the assignment, and this omission makes it faulty. They also appear from the transcript to have been asked before the general charge was given.

The requests in the bill of exceptions follow immediately after the evidence and the transcript shows that after the evidence was closed the plaintiff made certain requests, and immediately following is the statement that the defendant asked for the following instructions, and all the requests were refused except as given in the general charge. Immediately following these instructions is found the general charge.

Instructions must be asked for after the general charge is given, and the record must affirmatively show that fact.

But tbe trial Judge did not err in refusing to give tbe special requests, even if they bad been properly presented and asked. The first request is not tbe law, as it was, in effect, . to charge that tbe statements made as to tbe physical condition of assured were guaranties, and if tbe answers were untrue, whether known to be so by tbe assured or not, they would vitiate the policy.- This is noc tbe rule as laid down in Knights of Pythias v. Rosenfield, 8 Pickle, 508; Knights of Pythias v. Cogbill, 15 Pickle, 36; Band v. Life Association, 13 Pickle, 291.

Tbe second request as to the proof of tbe death and identity of tbe person whose death was proven as that of tbe assured was sufficiently given in charge, and tbe burden of proof upon these features of tbe case was stated properly to be on tbe plaintiff.

It is said that tbe evidence of tbe husband and nominal plaintiff, Cb aides Ford, was wholly unworthy of belief, and in tbe absence of bis testimony a most flagrant fraud is shown to have been perpetrated on tbe company, and it was error not to have granted a new trial upon this ground.

This assignment does not specify in what tbe fraud consists, and the only fraud we are enabled to surmise is tbe statement made by tbe assured that, she was not pregnant when she was insured; but tbe evidence we think clearly shows that tin's fact was not known to tbe assured or her bus-■baud at the time the insurance was taken out, and, moreover, that- the company continued to receive premiums and carry the policy in force after it learned of the fact, and made no offer or effort to cancel the policy.

We are of opinion there is nothing in the affidavits of Dr. Eaymond and C. H. Harris to demand a netv trial. All that is stated in them that was material could, . with proper diligence, have been brought out on the trial.

We see no error in the ' action and judgment of the Court below, and it is affirmed with costs.