Plаintiff, as beneficiary in a policy of accident insurance issued by defendant, instituted this action to recover the amount specified in the policy for the accidental death of the insured. The trial of the issues which were raised by the pleadings of the parties was had before the court and a jury selected for the purpose and resulted in the return of a verdict in plaintiff’s favor for the amount-demanded. Judgment in plaintiff’s favor was thereafter duly rendered. From the judgment thus entered the defendant has prosecuted the present appeal.
Numerous specifications of error which are claimed to have been committed by the court during the progress of the trial are relied upon as warranting a reversal of the judgment. Before giving consideration to them it may properly be оbserved that the record demonstrates that plaintiff made out a
prima facie
ease authorizing recovery by showing that the policy of insurance had been duly issued and once renewed by defendant, that the annual premiums due on the policy were paid, that the policy provided that in case of loss of life of the insured resulting from bodily injury sustained through specified accidental means the insurer would pay to the beneficiary named in the policy the sum of $5,000, that plaintiff was the beneficiary named in the policy, that the insured lost his life as a result of bodily injury sustained by him through accidental means as defined and limited by the terms of the policy during the time the policy was in force, that proof of loss was duly given as required by the terms of the policy, and that defendant refused to pay the sum stated in the policy for loss of life, but, on the contrary, gave notice that it- rescinded the contract of insurance and tendered to plaintiff the sums paid as premiums on the policy, together with interest, which plaintiff declined to accept. Defendant’s answer to plaintiff’s complaint alleged as affirmative defenses, first, that the contract of insurance was not made with the person named in the policy as the insured, but was made with plaintiff; second, that at the time the insured lost his life plaintiff had no insurable interest in his life: third, that plaintiff in the application for the policy which was made a part thereof, made certain false, untrue and misleading statements relative to the habits of life of the insured which were made with the intent of deceiving
Appellant’s first contention is that the trial court improperly permitted certain evidence to be introduced. The evidence which is claimed to have been inadmissible consists of the statements of the insured made to various persons. These statements fall into three classes. The first of them consists of statements made by him to respondent relative to his authorizing her to sign his name to the application for the policy. The second class consists of certain statements purportedly made to third persons wherein the insured recognized the existence of the policy and his approval of it. The third сlass consists of statements made to third persons wherein the insured admitted that he was indebted to respondent.
The first of the above-mentioned classes of declarations relates to certain testimony given by respondent herself. She was permitted to testify without objection that she signed the name of the insured to the application at his request and that at the time she did so she telephoned him with regard to taking out the insurance and he directed her to sign his name to the application and requested her to advance the initial premium. She was also permitted to testify without objection that prior to the renewal date of the policy the insured telephoned her and inquired as to the renewal date and on' being informed thereof requested her again to advance the amount required to renew the policy. Subsequently during the trial appellant moved the court to strike out the above-mentioned testimony, which motion was denied. It is maintained that the denial of the motion was erroneous and that the testimony should not have been permitted to stand for the reason that the statements attributed to the deceased were purely in support of his own interest and therefore inadmissible.
The evidence was properly admitted and the trial court’s refusal to strike out the testimony was correct. One of the principal issues in the case was whether the policy of
The second of the above-mentioned classes of evidence was also properly admitted. The fact of agency was, under the circumstances, an important feature of the case. Agency may be shown either by proof of direct authorization or by proof of subsequent ratification. Respondent was clearly entitled to prove not only that direct authorization was given her to sign the insured’s name to the application but also that subsequent to the issuance of the policy he made statements which showed that he knew of the issuance of the policy. Knowledge on his part of the existence of a policy of insurance in which he was named as the insured was a fact that pointed strongly to ratification by him of respondent’s act of signing his name to the application.
The third class of evidence was likewise properly received. This class consisted of statements of the insured wherein he admitted that he was indebted to respondent. One of the recognized exceptions to the rule which prohibits the admission of hearsay evidence is that which permits evidence of the declarations of a person against his interest. The reason for the exception is that it is presumed that a declaration so made is truthful. The exception applies to declarations оf deceased persons as well as to those of the living.
(Rulofson
v.
Billings,
Furthermore, with respect to the second and third classes of evidence of whose admission appellant complains, certain observations are proper to be made. As to the second class, even if it be conceded that it was erroneous to permit its reception, the error is not sufficiently serious to warrant a reversal of the judgment. As above noted, evidence that the insured had admitted that he knew that
Appellant further complains that the respondent was herself permitted to testify that the insured was indebted to her in an amount in excess of the sum which the contract of insurance prоvided should be paid in the event of death. The ground of this objection is that she was thereby allowed to vary the terms of a written contract which she had herself executed. Proper consideration of this contention requires a brief recital of certain facts established by the evidence. At the time application for the insurance was made respondent was the wife of the insured. Approximately eight months thereafter an action for divorce was instituted by the insured against respondent. The latter filed an answer and cross-complaint in the action and later secured an interlocutory decree of divorce. On
It is perhaps a sufficient answer to appellant’s contention in this regard to point to the fact that the jury by its .special finding that the contract of insurance was made between respondent’s husband and appellant effectually eliminated the question of insurable interest. If, therefore, it be conceded that the ground of appellant’s, objection is correct and that the evidence should not have been admitted for the reason stated, the error committed in its reception is harmless. However, it should also be observed that respondent did not basе the present action on the property settlement agreement which she entered into with her husband. The instant action.is on a policy of insurance issued by appellant who is a stranger to the property agreement. Appellant could not therefore be bound by the agreement between respondent and her husband and would be at liberty to show that the written agreement did not express the full or true character of the transaction. Since appellant had the right thus to vary or contradict the written agreement by parol evidence respondent, although a party to the agreement, had an equal right to do so. (22 Cor. Jur., p. 1292;
Budd
v.
Hughes,
With regard to the property settlement contract it is further contended that the trial court erroneously refused to permit appellant’s counsel to cross-examine re
Appellant . further contends that the trial court erroneously overruled its objection to a certain inquiry propounded to the respondent on her direct examination. The question to which objection was interposed called for a recital of a conversation which occurred between respondent and the soliciting agent of appellant regarding the answer to be given to a certain question contained in the application for insurance. The question which provoked the discussion between respondent and the agent was as follows: “Are your habits of life correct and temperate!” In this connection it is also contended that the trial court committed reversible error in permitting another witness who stated that she was present at the time the application was signed to testify with respect to the discussion that ensued between respondent and appellant’s agent regarding the answer to be given to the above-quoted question contained in the application.
In giving consideration to appellant’s contentions in this regard, it should be borne in mind that appellant in its answer had set up the affirmative defense that the answer returned to the above-stated inquiry in the аpplication was false and misleading and made with the intent to deceive appellant and that the false answer given in response to the inquiry did deceive appellant to its detriment. It should also be borne in mind that the inquiry was contained in a blank form of application prepared by appellant. It is our opinion that the correct meaning of the word “temperate” is not so clear as to render any explanation of the sense in which it was used by appellant unnecessary. The question of whether or not an individual is temperate calls for an an
It is further contended that the trial court erred in denying appellant’s motion for a nonsuit which was presented at the close of respondent’s case. The grounds of the motion were that the evidence showed that the contract of insurance was between respondent as the beneficiary named in the policy and appellant and that there was a failure of proof that respondent had an insurable interest in the life of the insured. The court, in denying the motion, ruled that a prima facie showing had been made that the contract was between the insured named in the policy and appellant as insurer and that the question of insurable interest was therefore immaterial at that stage of the ease since the law declares that everyone has an insurable interest in his own life. In thus holding the court committed no error.
An additional and third ground of the motion, however, deserves special consideration. This ground was that there was a concealment by respondent of a fact material to the issuance of the policy and a wilful and fraudulent representation by her as to a fact that was material to the risk or hazard which was to be assumed by appellant in executing the contract of insurance. The fact which forms the basis for this third ground of the motion and which is now particularly urged by appellant in its attack upon the court’s denial of the motion for nonsuit relates to the habits of life of the insured. As heretofore noted, the application contained the following question: “Are your habits of life .correct and temperate?” An affirmative answer was returned to this question by respondent, acting as her husband’s agent in making the application. It is urged that the evidence which was before the court when the motion for nonsuit was presented showed that respondent, in returning an affirmative answer to the question, wilfully concealed from the insurer the highly material fact that her
As heretofore noted, the trial court over appellant’s objection permitted the respondent and another witness to testify regarding the discussion which ensued between respondent and the soliciting agent of appellant when the above-quoted question relating to the habits of life of the insured was encountered in the application. The respondent testified in substance that she explained to the agent who called on her to solicit the application for insurance that, although her husband indulged in the use of intoxicants, he did not drink to excess. She further testified that the agent asked her if the insured drank to such an extent that he could not carry on his business, to which she replied “Absolutely not” and that while his indulgеnce in alcoholics made him quarrelsome and ugly it did not prevent his carrying on his business affairs. She also stated that the agent said: “That is what the question means” and thereupon himself wrote the answer “yes” to the question contained in the application. Another witness who was respondent’s mother testified that she was present when the application was signed and that she heard respondent tell the agent that the insured “didn’t get in a state from drinking that he couldn’t carry on his business”. The agent who soli
In giving consideration to appellant’s contention that the evidence showed that the defense of misrepresentation was established, it may be assumed that the inquiry respecting the insured’s habits of life related to a fact that was material to the risk which appellant was about to assume. We do not understand that it is otherwise contended by respondent.
It may also properly be observed that the form of the inquiry contained in the application was most general. It was not specific as, for example, it would have been if it had been in the following language: “Do you use intoxicating liquor?” The inquiry as to whether one’s habits of life are temperate necessarily calls for the opinion of the person to whom the inquiry is directed. This must be true
It is further urged that even though it be conceded that full disclosure of the facts relating to the insured’s use of intoxicating liquor was made to the agent who took the application nevertheless the agent was not authоrized to change the policy or to waive any of its provisions as the policy itself plainly prohibited any change in its terms or waiver of any provision by an agent. It is then contended that even though the agent was fully advised as to the insured’s use of intoxicants he was not empowered to interpret the word “temperate” as the same was used with reference to the insured’s habits of life and he was not authorized to waive the condition of the policy which required the insured to be temperate in the use of intoxicants in order to be insurable.
With respect to this contention the evidence which was produced with reference to the relationship which the person who received the application for insurance bore to appellant may properly be examined. It wаs shown that he was employed by and was a director of the Kettner-Stafford Goldsmith Co., Ltd., a corporation which was engaged in general insurance business in the city of San Diego. The concluding paragraph of the policy of insurance which was issued by appellant is in the following language: “In Witness Whereof the Company has caused this policy to be signed by its President and its Vice President-Secretary but the policy shall not be binding upon the Company until countersigned by a duly authorized representative of the
It is apparent from the above-described evidence as to which there is no conflict that we have here something essentially different from a waiver of conditions by a mere soliciting agent. We have an interpretation of certain language used by the insurer in its printed form of application which interpretation was given by an officer of a corporation that was the general agent of the insurer. Appellant points to the fact that the policy itself which the undisputed evidence showed was delivered to respondent provided as follows: “No agent has authority to change this policy or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the company and such approval be endorsed hereon.” It is then further observed that no evidence was submitted which tended to show that any executive officer was ever apprised of the disclosures which respondent testified she made to the agent relative to her husband’s use of intoxicants and that the policy contains no endorsement of approval by any such officer of any change in the policy that would permit of its issuance in the face of such disclosures. The obvious answer to that part of the argument which pertains to the requirement of approval by an executive officer of the company is that it is not pretended that there was any change in the policy. It is contended that full disclosure of the insured’s habits with respect to
With respect to the feature of waiver it is proper further to observe that appellant’s contention that no waiver of any provision of the policy could be accomplished by an agent of the insurеr is based on the assumption that the fact of intemperance of the insured was established by the evidence. With this basic assumption we cannot agree. The jury returned a general verdict in favor of respondent. In support of this verdict and the judgment which followed it a reviewing court is entitled to assume that the jury found that the affirmative defense of misrepresentation had not been established by appellant. As heretofore noted the misrepresentation relied upon by appellant as sufficient to enable it to avoid its contract related not' to a definite, readily definable fact, but to a matter which necessarily called for an expression of opinion. Appellant itself selected the language which formed the inquiry and is therefore responsible for any lack of clаrity or ambiguity or difficulty of definition of the phraseology which it elected to employ. The meaning of the word “temperate” as used in the application for insurance is largely a matter of opinion depending upon the liberality of view entertained upon the subject by the individual. In the absence of any standard of measurement, the question was one of fact to be determined by the jurors, whose conclusion with respect
Appellant further contends that the court committed reversible error in submitting to the jury a special interrogatory and in declining to submit four other special interrogatories which were specifically requested by appellant. The special interrogatory which was submitted by the court was as follows: “Was the contract of insurance a contract between the defendant, The Fidelity and Casualty Company' of New York and Robert Frank Mayfield?” The interrogatories which appellant prepared and requested the court to submit related to the matters of insurable interest and misrepresentation and concealment by respondent.
With respect to this contention it may be observed that section 625 of the Code of Civil Procedure provides as follows: “In an action for the recovery of money only, or specific real property, the jury, in their discretion may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing upon all, or any of the issues, and in all eases may
Appellant contends that the trial court erred in refusing to give to the jury certain instructions which were requested by it and in giving certain instructions which are criticized as containing incorrect and misleading advice with respect to the legal principles involved in the action. Two of the instructions which were given by. the court deserve special mention and consideration.
In one of these instructions the court, in referring to the issue of whether or not the contract of insurance was made by the insured, stated that the uncontradicted evidence showed that respondent signed her husband’s name to the application. The court then said: 1 ‘ She would have a right to do that if she were аuthorized by her husband to do that or if, after she had done it, he knew about it or acquiesced or agreed that it was all right.” (Italics ours.) The obvious objection to this language is that the disjunctive “or” was used when it is apparent that the conjunctive “and” should have been employed.
Assuming that no typographical error has been committed and that the phonographic reporter correctly reported the court’s language we are nevertheless constrained to hold that the use of the improper disjunctive rather than the obviously proper conjunctive was' harmless. It is fundamental that, in examining instructions, a part of one instruction may not be separated from its context and made the object of special criticism if the instructions taken in their entirety correctly advised the jury as to the
The second criticized instruction which is here selected for special mention is as follows: “To establish such evidentiary fact of bad faith or deception the evidence should be clear and satisfactory.” This language was used by the court in advising the jury relative to the affirmative defense of misrepresentation respecting the insured’s habits of life. In effect, the court told the jury that the defense thus presented amounted to a charge of fraud on the part of respondent entitling appellant to avoid its contract. The court clearly pointed out that the burden of proof rested
With- regard to other instructions given by the court which are attacked on this appeal and appellant’s complaint that the court erroneously refused to give certain instructions which it offered, it is a sufficient answer thereto to remark that an examination of the instructions in their entirety impels the conclusion that the jury was fully, fairly and correctly advised with respect to the law and that no reversible error was committed by the trial court in this regard.
It is finally contended that the judgment and the verdict upon which it is based are lacking in evidentiary support. The record fails to sustain the contention.
Appellant has attempted to appeal from the trial court’s order denying its motion for a new trial. Since no appeal lies from such an order the attempted appeal therefrom is dismissed.
For the reasons stated the judgment is affirmed.
Barnard, P. J., and Marks, J., concurred.