134 F. 732 | 3rd Cir. | 1905
This was an action by Kate L. Ma-hon against the Royal Union Mutual Life Insurance Company of Des Moines, .Iowa, upon a policy of insurance dated December 12, 1901, on the life of Peter A. Mahon, for the sum of $5,000, payable to the wife of the insured, Kate L. Mahon, the plaintiff. At the close of the trial, after all the evidence was in, the court below gave a positive direction to the jury to render a verdict for the defendant, which was done, and subsequently judgment was entered for the defendant on the verdict. The plaintiff excepted to the instruction of the court that the jury find for the defendant, and this instruction is the subject of an assignment of error. We will, in the first-instance, consider this assignment, for, if the peremptory instruction to the jury to render a verdict in favor of defendant was right; the other assignments become immaterial and need not be considered.
The case is an extraordinary one. It appears from the evidence on the part of the plaintiff that neither her husband ..(Peter A. Ma-hon) nor the plaintiff herself intended to insure his life in the defendant company, and that neither of them at the time knew that an application to that company was made, or a policy was issued by it. The plaintiff testified that, acting on behalf of her husband, she signed an application to the Equitable Life Insurance Company of Iowa for insurance in that company for $5,000 on his life, and that when- Mr. Latham, the local agent of the last-named company, delivered to her the policy in suit, and she gave him her check for the premium, she believed it was the policy of the Equitable Life Insurance Company, and did not discover it was the policy of the
Upon the evidence upon the part of the plaintiff it is plain that a valid contract of insurance upon the life of Peter A. Mahon was not entered into by the defendant company. Neither Mahon nor his wife intended to insure his life in the defendant company, and they made no application to it. The application they made was to the Equitable Life Insurance Company; and, according to the plaintiff’s testimony, when the policy in suit was delivered to her, it was received as the policy of the Equitable Company. Mahon did not sign the application to the defendant company nor the attached medical certificate, and he did not authorize any one to sign his name to either of these papers. The defendant company was induced to issue its policy in suit by means of a deception practiced upon it. The application for the policy and the accompanying medical certificate were fabricated. Assuming the good faith of Mr. and Mrs. Mahon, still it must be said that those who undertook
It is, indeed, earnestly contended on behalf of the plaintiff in error that the defendant company is estopped from denying its liability for the reason that the fraud was perpetrated solely by its own agents, without the participation of the insured or his beneficiary. But this argument rests upon false premises. The proposition urged is without any support in the evidence. No agent of the defendant company was concerned in the fraud. The proof is that neither Clark nor Latham was agent of the defendant company. It is shown that in soliciting the insurance Clark acted as a mere broker for the person to be insured. The evidence entirely fails to show that McCue was a party to the fraud, or cognizant of it. The evidence is quite convincing that McCue was ignorant of, and had no reason to suspect, the manner in which the application and medical certificate were prepared and executed.
Under the uncontradicted evidence the court was right in giving a binding instruction in favor of the defendant, and accordingly its judgment is affirmed.
