ERROR to the Circuit Court of the United States for the District of South Carolina.
In January, 1872, Foley obtained from the Knickerbocker Life Insurance Company of the city of New York a policy of insurance for $5,000, on the life of one Badenhop, his debtor to that amount. The premium required at the time and the stipulated annual premiums were paid. The profits arising upon them entitled the assured, in May, 1873, to a further insurance on the life of his debtor, to the amount of $36.03; and in June, 1874, to the amount of $39.36; and policies for these sums were issued to him.
Badenhop died in January, 1875; but the assured, being ignorant of the fact, paid the next annual premium. The present action, to recover the amount of the policies and of the premium overpaid, with interest, was commenced in a court of the State, and, upon application of the company, removed to the Circuit Court of the United States. The complaint alleges the issue of the policies, the interest in them of the plaintiff, the death of Badenhop, the proof thereof furnished to the company, the fulfilment by the plaintiff and the deceased of 'all the conditions' of the policies, the amount due, and its non-payment. It also alleges the payment of the annual premium after the death of the insured. A copy of the policies is annexed to the complaint. The first policy declares that it is issued upon the express condition that the application on file in the office of the company is an express warranty of the truth of the answers and statements contained in it, and that, if they are in any respect untrue, the policy is to be void and of no effect to any one. The additional policies declare that they are subject to the same conditions as the first.
In its answer the company sets up, among other things, as a defence, that the plaintiff and the insured did not make true and correct answers and statements to certain questions contained in the application for the first policy, in this, that to the questions, 'Is the party of temperate habits? Has he always been so?' the answers given were 'Yes,'-when, in fact, he was a man of intemperate habits, thus conceraling by the answer his true habits, and making a false statement concerning thmem; whereby the policy became void.
On the point thus raised, whether the answers given as to the habits of the insured were true or false, the testimony offered was conflicting. On the part of the company, one witness testified that in 1871 and in the early part of 1872 he was the family physician of Badenhop; that at that time Badenhop was drinking hard; that during that year he had attended him for delirium tremens, and once or twice for indisposition, produced, 'as he thought,' from the excessive use of intoxicating drink; and that he 'regarded' him as a man of intemperate habits. But, on his cross-examination, he admitted that he did not know Badenhop intimately, had no relations with him other than professional, and saw him only when he attended him professionally, or met him occasionally in the street. Two other witnesses testified for the company,-one, that he was intimate with Badenhop; the other, that he had known him for several years, and that he was a very intemperate man; that they had frequently seen him under the influence of liquor; but neither of them stated when his acquaintance commenced, whether before or after the policy was issued.
On the part of the plaintiff several witnesses were called, who had known Badenhop intimately for many years, their acquaintance with him commencing before the policy was issued and continuing afterwards, and one of whom had been his partner in 1869 and 1870; and they all testified unqualifiedly to his being a man of temperate habits.
The defendant requested the court, among other things, to instruct the jury, 'That where, in a question whether the party assured is one of temperate habits at the time when he seeks to be insured, and has always been so, witnesses testify, from their own knowledge of the party and his habits, that he was not of temperate habits, their testimony is entitled to greater consideration by a jury than witnesses who testify otherwise, because they have not seen or known of such habits as are testified to by those who declare that he was not a person of temperate habits.'
This instruction the court refused to give, and an exception was taken. The court, among other things, instructed the jury that all the representations in the application for the policy of insurance are warranties that such representations are true, and that if they find from the evidence that the habits of the insured, at the time of, or at any time prior to the application, were not temperate, then the answers made by him to the questions, 'Are you a man of temperate habits?' 'Have you always been so?' were untrue, and the policy is void; but that if they find that his habits in the usual, ordinary, and every-day routine of his life were temperate, then such representations were not untrue within the meaning of the policy, although they may find that he had an attack of delirium tremens resulting from an exceptional indulgence in drink prior to the issue of the policy; and that the burden of proof is upon the defendant to show the breach of any warranty in the policy. To the charge the defendant excepted. The jury found for the plaintiff, and, upon the verdict, judgment was entered; to review which the case is brought to this court on a writ of error.
Mr. A. G. Magrath for the plaintiff in error.
Mr. J. P. K. Bryan for the defendant in error.
MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.
Notes edit
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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