Nos. 10,063-(255) | Minn. | Jul 17, 1896
This is an action on a policy of life insurance in the sum of $10,000, issued by defendant to James B. Bouse upon his own life on September 7, 1892, and assigned to the plaintiff. The assured died November 25, 1893; and plaintiff, claiming an insurable interest in his life, made and furnished proofs of his death to the defendant, and demanded payment of the policy to herself, by virtue of such assignment. Payment was refused.
These facts are duly alleged in the complaint. The answer admits the making of the policy, and alleges that the assured committed suicide. This phase of the defense was considered on a former appeal in this.case. 61 Minn. 516" court="Minn." date_filed="1895-07-02" href="https://app.midpage.ai/document/hale-v-life-indemnity--investment-co-7968973?utm_source=webapp" opinion_id="7968973">61 Minn. 516, 63 N. W. 1108. The answer also alleges, among other defenses, that the warranties on the part of the assured,
The defendant’s assignments of error may be classified under three general heads: The rulings of the trial court as to the admission and rejection of evidence; its rulings in giving and refusing instructions to the jury; the sufficiency of the evidence to support the verdict.
1. Assignments of error 9 and 10 raise the question of the correctness of the trial court in receiving in evidence plaintiff’s Exhibits C (the proofs of death) and J (the notes of the assured indorsed to the plaintiff). They were properly received in evidence as tending to establish the plaintiff’s cause of action, and that, as a creditor, she had an insurable interest in the life of the assured. Whether she established such interest will hereinafter be referred to.
Alleged errors 14, 15, 16, and 17 challenge the correctness of the ruling of the court in excluding testimony as to the declarations of the assured on the subjects of suicide and his health.
The defendant offered to show .by the witness Jaggard that in October and December, 1891, the assured, in connection with a conversation as to his financial condition, said to the witness, in substance, “If you press me now upon that claim which you hold against me, * * * I will commit suicide,” and that he further said in that connection, “If at any time I get severely pressed in the future, financially, I will commit suicide.” The defendant claims that this was competent evidence on the question whether the assured died by his own voluntary act.
It is true that, when the question is whether a person did a certain act, his declarations, oral or written, made prior to and about the time he is alleged to have done the act, to the effect that he in
The cases cited and relied on by the defendant are not in conflict with the views we have expressed. In the case of Smith v. National Benefit Soc., 123 N.Y. 85" court="NY" date_filed="1890-10-07" href="https://app.midpage.ai/document/smith-v-national-benefit-society-3598033?utm_source=webapp" opinion_id="3598033">123 N. Y. 85, 25 N. E. 197, a series of acts and declarations of the assured, covering a period of nearly a year before his death, were admitted in evidence in support of the defense that, in pursuance of a deliberately planned scheme to defraud the defendant and other insurance companies, the assured procured insurance on his life in 36 companies to the aggregate amount of $285,000, and consummated the fraud by suicide. The issue was not that he had committed suicide in violation of any stipulations in the policy, for it contained none, but fraud in procuring the policy was the issue, and great latitude was properly allowed in the admission of evidence to prove the fraud. Evidence of continued acts and declarations of the assured up to the day before his death were received as a part of the chain of circumstances tending to prove the fraud, and as a
The declarations of the assured here in question were made in the fall of 1891, — a year before the policy was issued, and two years before his death, — and were no part of the res gestae, and were too far removed in point of time from the death of the assured, to justify any reasonable inference that his death was the execution of such alleged declared intent. The trial court, in its discretion, was fully justified in excluding the evidence of such declarations.
It is further claimed that the court erred in excluding declarations on the subject of his health made by the assured prior to the issuance of the policy.
The first of such alleged errors is the ruling of the court in sustaining an objection to the defendant’s question to the witness Jaggard, who testified that he met the assured in the fall of 1891. The question was, “You may state what he stated to you in regard to the condition of his health at that tune.” Other than as may be inferred from the question, the record does not disclose what declarations of the assured the defendant desired to prove.
Whether the ruling on this particular question was correct or not, we need not stop to inquire; for it appears from the record that the witness was subsequently, and during his examination in chief, allowed to, and did, testify fully as to the subject-matter of this question. The witness testified that he had seen the assured when he was sick, and described his appearance and symptoms, and continued as follows:
*553 “Q. Did he make any complaint as to whether he was suffering? A. Yes, sir. Q. What did he say with reference to his sickness, if anything? A. I asked Mr. Rouse, on a number of times, what was the matter with him. 1 might say, and he replied a number of times to me, that he had been prostrated by nervous dyspepsia. Q. Did he complain of any particular pain at any of these times, — I am confining myself now to Minneapolis? A. Except as I have stated, I don’t recall. Q. Did he at the same time state what the length or duration of this nervous dyspepsia had been? A. Yes; I think he did. I think Mr. Rouse talked to me pretty freely about his physical condition.”
The witness gave further testimony along the same line, and the whole subject of the assured’s health, and his statements as to the same, appear from the record to have been gone into just as fully as the defendant desired.'
The defendant, however, now claims that the evidence admitted “was far from identical with that sought to be introduced and excluded.” This may be true, but we can only deal with the record, and, in the absence of any offer or statement as to what was sought to be proven by the question, the objection to which was sustained, it clearly appears that the ruling of the court, if error, was harmless, for the reasons suggested.
For similar reasons, there was no error in sustaining the objection to the question to the witness Green, which was as follows: “Did you have any talk with Rouse, or did he made any statements to you, concerning his condition of health that day?” This was merely a preliminary question, and wholly immaterial, unless, in case of an affirmative answer, it was followed by the further question as to what the statements were. Assuming — what does not appear from the record — that it was the purpose of the defendant to follow the question with others, for the purpose of eliciting material evidence, we are of the opinion that the question was substantially answered in response to the two questions which immediately followed: “Q. Did you observe anything concerning his condition of health or strength on that day? A. No, sir. Q. Did he make to you any complaints of any physical sufferings or ailments on that occasion? A. No, sir.”
One of the defendant’s witnesses (Sniffen) testified that he visited and saw the assured on several occasions in the year 1891, when he
“Q. During the different times that you saw Mr. Bouse sick in the year 1891 and in January, 1892, did Mr. Bouse say anything to you about the nature of his illness? The Court: I want the witness to understand that he is to tell what Mr. Bouse said he was then suffering with. Witness: That is what I understand the question. The Court: That is, upon these occasions when you found him sick as you have described him. Witness: Yes, sir. Q. Wbat did he say he was suffering with? A. His ‘old stomach trouble.’ Q. Did he say that upon each of the times that you saw him in the year 1891? A. No, sir. Q. Which of these occasions did he say that? A. On the majority of them. He always referred to stomach trouble. When he was at my house, for instance, he had to open his vest, complaining that he couldn’t stand the pressure on his stomach. He complained of dyspepsia, and of cramps, severe cramps, but invariably it was referred to as ‘stomach trouble.’ Q. Yes; stomach trouble,— the old stomach trouble? A. Yes; stomach trouble. He told me that in the Holmes Hotel, the first time I wanted to have a physician in the New York Life attend him. He said,‘No;’ he knew just what to do for it. Q. Now, what did he say at that time about its duration? (Same objection.) The Court: That comes within the rule. He may answer to show knowledge that he had this trouble. A. He stated specifically that he had had it for a long time. Q. Now, did he state that at each ofthe times when you saw him in March, April, June, and October, 1891? A. Yes, sir; he stated literally that. It might have been the difference of a line, but he stated literally the same thing, because I continued the conversation, ‘How are you feeling?’ or ‘How are you getting along?’ or something of that sort.”
The witness gave further testimony as to the assured’s then physical condition, and his statements as to such condition, and there is no suggestion that he did not testify to all that the assured said to him. H it was error to sustain the objections to the original ques
The defendant offered in rebuttal certain written statements made by the assured to the Keeley Institute relating to his intemperate habits. The offer was objected to on the ground, among others, that it was not proper evidence in rebuttal, and the court sustained the objections. This ruling is the basis of defendant’s assignments 18 and 19. The offered'evidence, if admissible at all, should have been offered as original evidence in support of the defendant’s main case in its defense. It was not proper rebuttal evidence, and whether it should have been received at the time it was offered, bcause of the fact that the defendant did not discover its existence until after it rested its defense, was a matter resting in the discretion of the trial court. It was not an abuse of the discretion t.o refuse to receive it.
Assignment 20 is not regardable. The ruling complained of was correct for the reason that the question was not proper cross-examination.
2. Assignments of error 6 and 7 relate to the instruction of the court, and its refusal to instruct, as to the plaintiff’s insurable interest in the life of the assured.
The policy was assigned by Rouse to the plaintiff as her interest might appear. There is evidence in the case tending to show that the plaintiff held the note of her son-in-law, Woodruff, indorsed by Rouse before its delivery, for the sum of $10,000 loaned by her to Woodruff to enable him to purchase a one-half interest in Rouse’s business, which he did. The assignment in question was made to the plaintiff to secure this debt. Subsequently Rouse repurchased the interest sold to Woodruff, and executed to him therefor 100 notes of $100 each, which Woodruff indorsed to the plaintiff, and his $10,000 note, with Rouse’s indorsement thereon, was surrendered.
The defendant claims that this transaction constituted a payment of Rouse’s original debt, which the policy was given to secure, and her insurable interest ceased. The plaintiff claims that Rouse’s liability on the original debt was never paid, but that the new notes were substituted in place of the old one. The trial court instructed the jury, in substance, that the burden was upon the plaintiff to establish her claim that the new notes were taken as a substitute for
The court also instructed the jury that, if the plaintiff was entitled to recover anything, she was entitled to the face value of the policy, and interest, and refused the defendant’s request to limit the amount of the recovery to the amount actually due on her notes at the commencement of this action, or at the time of trial. This is the basis of the defendant’s assignments of error Nos. 11, 12, and 13.
The instruction and ruling of the court were correct. The amount of the plaintiff’s notes against the assured exceeded the face of the policy. But the defendant claims that, although the plaintiff established the fact that she held the policy to secure her debt, yet she was not entitled to recover the full amount of the policy, because the larger portion of her notes had not matured at the time of the trial. Whether the notes were due or not is no concern of the defendant. That is a matter to be adjusted between the plaintiff and the personal representatives of the deceased. The cause of action is not on the notes, but on the policy. That was due when the action was commenced, and the cause of action thereon against the defendant is single, and not divisible into as many separate causes of action as the plaintiff held notes against the assured. The whole of the plaintiff’s notes, due or to become due, were secured by the policy; and, when she collects the amount due from the defendant on the policy, questions as to its application or retention as security for notes not due, in place of the policy, do not interest the defendant. Even if the amount of the plaintiff’s notes was less than the face of the policy, she would be entitled to recover the full amount due on the policy, and would hold the surplus for the personal representatives of the assured. Bliss, Ins. § 328.
Alleged errors Nos. 3 and 4 are to the effect that the court erred in refusing the defendant’s first and second requests for instructions to the jury. These requests are practically the same, and refer to the claim of the defendant that assured gave false answers to questions put to him by its medical examiner as to the physicians he had consulted, and for what ailments.
For a clear understanding of the questions raised by these requests, it is necessary first to refer to the application of the assured, which contained the questions and answers upon which the requests were based. It was agreed by the assured that all the statements and answers made by him in his application, as well as those made to the defendant’s medical examiner, were warranted by him to be true. There was no warranty that the answers were full and complete, but he did warrant that the answers, as given, were true. Under this agreement the assured was bound to answer accurately and truthfully only in so far as he undertook to answer, and his warranty could not be extended beyond his answers so actually given. If a question was not answered, there was no warranty, and, if only partially answered, the warranty cannot be extended beyond the answer, for it can only be predicated on the affirmation of something not true. Dilleber v. Home Life Ins. Co., 69 N.Y. 256" court="NY" date_filed="1877-04-10" href="https://app.midpage.ai/document/dilleber-v--home-life-insurance-co-3579818?utm_source=webapp" opinion_id="3579818">69 N. Y. 256.
The trial court instructed the jury in accordance with these views, the correctness of -which is practically conceded by defendant; but it, is claimed that they have no application to this case, because the as
The application consisted of two parts, one on each side of the same sheet of paper. The first part consisted of questions and answers to and by the assured. The second part was the report of the defendant’s medical examiner, which also consisted Of questions to and answers by him. Question No. 12, in part 1, and its answer, were substantially as follows: “For what have you sought medical advice during the past seven years? Dates? Duration? Physicians consulted? Answer. Malaria in Kansas, and la grippe, — first, 1888; second, 1891. One week, malaria. Dr. J. S. Oldham. La grippe, one week. Dr. Anderson.” ' Under the head of “Remarks” the assured further stated as follows: “In 1891 had enlargement of liver, lasting four months. The principal effect was that of indigestion. Fully recovered.” Subdivision No. 15 of the medical examiner’s report contained the following question and answer: “When and for what has medical advice been sought within the last three years? Answer. Only as stated above.”
The claim of the defendant is that this answer must be read into the answer to question No. 12, so that Ms answer as to what physicians he had consulted must be construed as if it read only Dr. Old-ham in 1888, and Dr. Anderson in 1891. This is not the reasonable construction of these answers. The question to the medical examiner did not call for the names of the physicians consulted, but only for the time when, and the ailment for which, medical advice had been sought, and the answer, “Only as stated above,” refers to his previous statements as to the subject-matter of the question,viz. for la grippe in 1891, and for enlargement of liver in 1891, resulting in indigestion.
But, as already suggested, the requests for instructions now under consideration were properly refused, upon the defendant’s own
“If you find that James B. Rouse, in answer to the question put to him by the medical examiner who made examination for insurance with reference to the policy here sued on: ‘(a) For what have you sought medical advice during the past seven years? (b) Dates? (c) Duration? (d) Physician consulted?’ — stated that he had sought medical advice of Dr. J. E. Oldham in 1888 for malaria, and of Dr. Anderson in 1891 for la grippe, and made no further answer, and if you further find that said Rouse had, at any time within seven years to the said medical examination and his giving said answers, sought medical advice from, and had been treated by, any other physician or physicians than those named by him, you are instructed that the facts so found by you vitiated and rendered void the contract of life insurance sued on in this case, and your verdict will be for the defendant.”
It is apparent on the face of this request that it does not state the law applicable to this case correctly; for, if the assured made “no further answer” to the question referred to in the request, it follows that he did not answer that the physicians named were the only ones whom he had consulted within seven years, and his warranty could not be extended beyond his answer as given. If, as the defendant claims, the answer to the question to the medical examiner, “When and for what has medical advice been sought within the last three years?” “Only as stated above,” — so qualified the answer to the question recited in the request that it was the equivalent of a statement that he had sought within the last three years medical advice only of the physicians named in his answer, the words, “No further answer,” should have been omitted, and the question of the medical examiner, and answer thereto, in substance or effect, should have been included in the request, and the time limit within which the assured sought advice from other physicians should have been three, instead of seven, years. The words in the request, “and made no further answer,” negative the idea that the instruction rested on any other answer except the one therein recited.
The requests were properly refused for both reasons which we have suggested.
The claim of the defendant is that the assured, prior to his application for insurance, was subject to the disease of dyspepsia; that he was a man grossly intemperate in his habits, addicted to both the drink and morphine habit, and was not, to his own knowledge, a fit subject for life insurance, and that this claim was established on the trial by clear and uncontradicted evidence; and that, therefore, the court erred in its refusal to dismiss the action at the close of the plaintiff’s evidence, and also in refusing to direct a verdict for the defendant at the close of the evidence. If the defendant’s premises are correct, its conclusion follows as a logical sequence. Its premises, however, rest upon the assumption of the absolute credibility of its witnesses, and that there was no contradictory evidence.
The subject of the inquiry related to the habit of eating opium or morphine, not to the proper occasional use of the drug, and to his habit or practice of immoderate drinking or overindulgence in liquors, and not to the moderate use of them. The defendant introduced evidence tending to show specific acts and declarations on the part of the assured, and other evidence as to his physical condition, which, if absolutely credible and uncontradicted, would justify, if not require, the jury to find that he was addicted to the drink and morphine habit, and did have the dyspepsia, when he made Ms application. But the credibility of several of the defendant’s witnesses cannot be assumed, for the record discloses circumstances connected with them and their evidence which made the question of their credibility one for the jury. A large part of the evidence on the part of the plaintiff, of necessity, was general in its character, and consisted of the testimony of the wife of the assured, his intimate friends, and business and social associates, including doctors, and a druggist who knew him intimately, and Ms habits, tending to show the state of his health, and that he was not addicted to the drink or morphine habit. The plaintiff also gave evidence tending to contradict the testimony of some of the defendant’s witnesses as to certain alleged specific acts of excessive drinking on the part of the assured, by showing that he was not present at the time and place stated.
We are of the opinion that the trial court did not err in refusing to take this case from the jury, and that the verdict is sustained by the evidence.
Order affirmed.
Mitchell, J., took no part.