ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania.
This action was brought by Emilie Moulor, widow of Louis Moulor, against the American Life Insurance Company, upon a policy of insurance upon his life issued June 17, 1872. The instrument contains the following stipulation: 'And it is hereby declared and agreed that if the representations and answers made to this company in the application for this policy, upon the full faith of which it is issued, shall be found to be untrue in any respect, or that there has been any concealment of facts, then, and in such case, this policy shall be null and void.' The application contains the following interrogatories and answers, among others: 'Seventh. Has the party' (Louis Moulor) 'ever been afflicted with any of the following diseases? Answer 'yes' or 'no' to each. Insanity? No.-Gourt? No.-Rheumatism? No.-Palsy? No.-Scrofula? No. Convulsions? No.-Dropsy? No.-Small-pox? No. Yellow fever? Yes. Fistula? No.-Rupture? No.-Asthma? No.-Spitting of blood? No. Consumption? No.-Any diseases of the lungs or throat? No.-Or of the heart? No.-Or of the urinary organs? No.'
Interrogatory twelfth. 'How long since the party was attended by a physician? For what disease or diseases?' Answer. 'Not since the year 1847, when he had the yellow fever.'
After these answers the application contained the followi g: 'It is hereby declared and warranted that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned' (Louis Moulor) 'that this application shall form a part of the contract of insurance, and that if there be in any of the answers herein made any untrue or evasive statements, or any misrepresentations, or concealment of facts, then any policy granted upon this application shall be null and void.'The defence set up at the trial was that some of the answers to the interrogatories contained in the application were untrue, and this defence was attempted to be supported by the testimony of a single witness, Dr. Mathieu. He testified that he had been the family physician of Moulor since 1855; that in 1858 and 1859 he attended Moulor for chronic asthma, manifestations of the first stage of consumption, and also treated him for scrofula. They witness did not testify positively that Moulor had the diseases for which he treated him, but his testimony was that Moulor never learned from him or any other physician, and that he never suspected or had the remotest idea that he was affected with any such diseases; on the contrary, that he always boasted of himself as being a strong, healthy, and robust man. The witness further testified that the asthma Moulor had was the dry, nervous asthma, attended by no expectoration; that there was nothing connected with it to make the patient believe he had it. As to the first stage of consumption, there was no softening of the tubercles, and, therefore, no expectoration of the tuberculous matter. As to the scrofula, that his was very mild diathesis.
This was all the testimony adduced, and now relied upon to prove that the answers in the application were untrue.
There was, however, in evidence the statement of two medical examiners attending the application. They represented the assured as in perfect health, and as having never had any constitutional disease except yellow fever, and a curvature of the spine in his early youth, and as having no predisposition, either hereditary or acquired, to any constitutional disease.
The court instructed the jury to find for the defendant. Judgment having been rendered accordingly, the plaintiff sued out this writ.
Mr. James Parsons for the plaintiff in error.
Mr. Isaac Hazlehurst and Mr. Henry Hazlehurst for the defendant in error.
MR. JUSTICE STRONG, after stating the facts, delivered the opinion of the court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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