102 F. 856 | 1st Cir. | 1900
Lead Opinion
Hadley, to whom the five $5,000 20-year life insurance bonds in suit were issued, was a citizen of Massachusetts, and on the 2d day of January, 1897, being in New York, applied to the Provident Savings Life Assurance Society of New York for insurance upon his life, and the insurance described in his application as that desired was $25,000. Among the printed questions in the application addressed to the applicant was the following: “State here the exact kind of policy or policies desired.” To this Hadley answered :, “Twenty-year endowment bond.” Parts 1, 2, and 3, the usual forms of application used by that company, were filled out and executed; and in the usual course of the business the applicant was examined, and informed that he had passed the medical department. The first premium was not paid, but it was understood that the 20-year endowment bond was to be filled out and forwarded to Hadley at his home, in New Bedford, Mass. Thus the matter stood until January 9, 1897, when the secretary of the company inclosed the five policies, of $5,000 each, which are in suit, saying:
“Enclosed we band you bond policies numbers 80,932-3-4-5-6, on your life, aggregating in amount $25,000, in accordance with your application made a few days ago at this office. We have been obliged to issue this insurance in separate policies, for the reason that our bonds are engraved only in amounts of one thousand dollars or five thousand dollars. * ⅜ * If, after inspection, they are found in all respects satisfactory, please send check for $847.50, the total of the five semiannual installments of $169.50 each.”
The question as to the place of contract, — whether*'New York or Massachusetts, — and the question, whether the New York or the Massachusetts law should govern the contract, were very elaborately and ably discussed by counsel at the arguments; but it seems to us, after all, that the problem presented may be solved upon simple grounds, and that we need not determine whether the variance between the application executed in New York, which called for a single $25,000 “twenty-year endowment bond” as “the exact kind of policy ⅞ * * desired,” and the five $5,000 endowment bonds finally delivered in Massachusetts, was of sufficient substance to operate, in and of itself, to open what had been done in New York, and to carry the act of final" completion to Massachusetts, for the simple reason that the company, in its communication through its secretary, who, it must be presumed,
The question whether the rights of (he parties should be administered under New York law or under Massachusetts law ⅛ deemed material by the parlies, for the reason that the New York law is supposed to be less favorable to the policy holder' than'that of Massachusetts; but. we understand it to be well settled that where rights are in dispute, and are being adjudicated in the state where the contract is closed, such dispute is to be determined according to the law of that state. The conditions upon which a given state may permit insurance companies to do business therein may properly enough become a part of the public policy of such state. And the supreme court of Massachusetts has frequently and recently upheld aird sustained the legislative policy of Massachusetts as declared in respect to regulating the conditions under which insurance companies shall do business in that state. Nugent v. Association, 172 Mass. 278, 280, 283, 52 N. E. 440; Considine v. Insurance Co., 165 Mass. 462, 42 N. E. 201. The statutes of Massachusetts (Acts 1894, c. 522, § 72) declare that every policy which contains a reference to the application for insurance must
We now come to the question whether there was error in the instructions to the jury upon this issue. Counsel urge with great seriousness and'with.energy that the defendant was prejudiced by reason of the instructions to the jury thereon; and the particular point is that the court, in submitting the question to the jury, remarked: “It is difficult for me to see that it is material. Perhaps it will be difficult for you to see that it is.” But it must be said that in connection with this remark the learned judge said, “But this is not for me to pass upon, but for you.” It is urged on the other side that it is established by repeated decisions that a court of the United. States, in submitting a case to the jury, may, at its discretion, express its opinion upon the facts. We do not understand that the courts of the United States possess any peculiar right to express opinions upon facts submitted to the jury which, in the absence of restricting statutes, is not possessed by other courts.- It is true, however, ¡hat there are cases which hold that an expression of an opinion by the judge upon the facts is not error which will disturb the verdict; but it will be found that such cases are generally put upon the ground that the judge ultimately left the question to the jury, and distinctly reminded the jurors that the question was, after all, a question to be decided by them upon their own responsibility. The decisions are not grounded upon the right or propriety of the expression, but, rather, upon the ground that the judge immediately renounced his right to interfere with the findings upon the questions of fact submitted to the jury, and that therefore the jury was
The questions attended with the most difficulty are those which relate to the instructions given with reference to the statement of the applicant that he had never been engaged in the sale of spirituous or intoxicating liquors, wherein the jury was told that the answers might have been carelessly made, and upon the other point, with reference to the question whether the applicant had ever used spirits, wine, or malt liquor to excess, where the jury was told, in effect, that the alleged excessive use of intoxicating liquors disclosed by the evidence might have been the result of thoughtless overindulgence. This point stands quite differently from the point just considered, which was directed against the expressions which it is claimed were expressions of an opinion by the judge upon the facts. One stands upon the ground that the court, having qualified the remark, charged upon the jury the entire responsibility of finding the facts, and that the defendant therefore was not prejudiced, while in the other instances, and those now under consideration, the court, in submitting the questions to the jury, gave them a rule of law under which they were to exercise and discharge the responsibility of finding the facts; and the inquiry is whether the jury were given too much latitude with respect to the questions which they were to decide. In the consideration of the questions with which ■we are now dealing, we must keep in mind that the contractual rights of the parties reside solely in the insurance bonds, and that all considerations of warranties in respect to the questions and answers contained in the application are out of the case, and that, while the paper which was called an “application” was used before the jury, it was used, not because it was an application, but because it was a paper which contained certain statements which it is claimed were material statements which induced the company to enter into the contract, and that such material representations were misstatements of fact. So it will be seen that the question was one, generally speaking, of avoiding a contract, upon common-law lines, on the ground of misstatement, and quite aside from a case with the usual warranties, and the consequences that follow the usual conditions which exist in life insurance contracts when the application is accepted and treated as a part thereof. But it was not a contract where the parties had equal information as to the subject-matter thereof. It was a contract where, from the particular conditions, one must rely on the other for his knowledge of the facts, and where the other is bound to diligence, care, thoughtfulness, and good faith in respect to his information. Therefore it comes within that exceptional class of contracts termed “uberrimse fidei,” where the rules in respect to avoidance on the ground of misstatement are different and more rigorous than those governing where the parties stand upon the samé ground with respect to information. It has been said by a modern text writer, in respect to contracts of this kind, that a misrepresentation made recklessly or carelessly, and without caring whether it be true
One of the exceptions to be determined upon the lines of the foregoing general observations was taken to the expression:
“I must instruct you tiiat it is not sufficient to prove a single case of excess, merely, — not sufficient to prove a case of overindulgence thoughtlessly in one, two, or three instances.”
This was said to the jury, and related to the.question whether the representations that the insured had never used spirituous liquors to excess were, in substance, untrue, in the sense of the contract; and in this we can find no substantial error. It was simply explanatory of the measure of proof in respect to the question whether there was any substantial variance between the conditions shown by the evidence and the conditions disclosed by the answers; and, taking this together with the other instructions on the subject, the jury was, in effect, instructed that it was not sufficient to show -a single case of excess, merely, — not sufficient to prove a case of overindulgence thoughtlessly in one, two, or three instances. In substance, it was saying that the expression “excess” was used in the sense of a condition increasing the insurance risk, and should be interpreted in a broader sense than a single indulgence, and as directed against a habit, or, at least, a condition, which, as a matter of fact, was of sufficient substance to increase and enhance the risk, within the contemplation of the parties. This was simply giving the jury an opportunity to determine the substance of the issue, — in other words, to determine whether the conditions shown by the evidence were, in the sense of the contract, substantially and materially at variance with the representations upon which the contract was made. Moreover, the instructions on this branch of the case were sufficiently favorable to the insurance company; for the jury was told to consider, first, whether or not the statements to which the counsel called attention were material to the risk, in the way explained, and whether they were untrue, and then to consider whether the defendant relied upon such statements as were found to be material to the
The point is also taken that the time limit upon the evidence, except that of a general character, tending to show that the insured was guilty of excessive use of intoxicating liquor to the period subsequent to 1880, was not warranted. This point is based upon the same alleged representations in the application, and which were as follows: “Have you ever used spirits, wine, or malt liquor? Ans. Yes. Have you ever used them to excess? Ans. Ho.” It is probable that the court below, acting upon the idea that the application was not a part of the contract, determined the question of time limit upon the ordinary rules as to remoteness. Ordinarily the question of remoteness in respect to a situation of this kind would be a question for the court to determine at the trial, and not a question sub- , ject to review; but the particular question presented is whether the expression, “never used liquor to excess,” places a limitation upon The rule which would otherwise obtain as to the exercise of discretion by a. trial judge in respect to the question of remoteness. It must be assumed that this question of remoteness was determined at the trial with reference to the idea that the actual conditions to be shown, as varying from the representations upon which the company relied, must present matter which would have substantially and ma-' torially enhanced the risk at the time of the contract. So it was for the court to say, within reasonable limits, what conditions would fairly tend to show this, and what were too remote in point of time. Although the general expression, whether he had ever indulged excessively, literally carries it, in point of time, to his childhood, it is not reasonable that such scope should be given in a trial where the issue is whether the conditions actually existing at the time of the contract were so far at variance with the statements actually made as to have substantially and materially enhanced the risk. To take an extreme for purposes of illustration, it is manifest that no one would contend that the scope of the evidence should go back to and include the day of the insured’s birth, although literally the question and the answer carry it there. So it follows that a reasonable time limit, which should comprehend the substantial and material conditions embodied in the contract, may and should be made; and the determination of a question of remoteness of this kind involves discretion ordinarily exercised at the trial, and a discretion ordinarily not subject to review.
The other instruction or remark to the jury to which exception was taken is this:
“You must boar in mind that the mere fact that a statement which was not true is made is far from making out a defense upon this point. The answer might have been made carelessly.”
In my view, the ruling that the contract was a Siassachusetts contract, and was to be controlled by the law of that state, was without error, and the rulings on evidence were correct. When the judge, in his charge to the jury, came to the contract, his instructions on the distinction, in contracts of insurance, between warranties, and representations, were without error, and clearly pointed out the difference between material and immaterial representations, and the rules of law applicable to each kind. It was sufficiently impressed on the jurors that, regardless of any expression of opinion by him on matters of fact, all such matters were exclusively for them to consider and decide. If it be admitted that, later in the charge, in the endeavor to illustrate the rules given, he fell into apparent errors of expression, it is still true that at the close’of his instructions the true and correct rules were repeated, and it was distinctly told to the jurors that any apparent departures from these final statements so repeated, if there were any, should be disregarded, as unintentional and inadvertent expressions. The first and the last impressions of the charge were right, and nowhere was anything said to withdraw or negative them. So I concur in .the result reached by Judge ALDRICH, though not in all respects adopting his reasoning.
Concurrence Opinion
I concur with Judge COLT.
The judgment of the circuit court is affirmed, with interest, and the defendant in error recovers her costs in this court.