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Vol. II.)

Fitch v. AM. POPULAR LIFE Ins. Co.

[No. 11.

tems of disease of any organ; whether he is acquainted with the laws of health, and whether he takes pains to observe them, and a host of other questions which no human being could with safety undertake to answer accurately and warrant the correctness of his answers. Then follow questions as to his knowledge of the conditions of the insurance, and among these whether he is aware that any fraud will vitiate the insurance, but he is not asked whether he is aware that any unintentional mistake in answering any of the host of questions thrust at him, whether material to the risk or not, will be a breach of warranty and vitiate his policy.

The applicant is required to answer the questions thus propounded by making upon or over each question conventional marks, one of which signifies yes, or good, or positive; one no, or bad, or negative; double of either, very or decidedly; one medium, and the other, do not know.

This document, which the applicant is required to sign, concludes with a declaration that his answers to the questions and the written statements in the preceding statement, declaration, or warranty, together with the statement made to the examining physician and signed, are warranties correct and true, and that there is not concealed, withheld, or unmentioned therein any circumstance in relation to the past or present state of health, habits of life, condition, or intentions of the applicant, nor any fact concerning his relatives or ancestry with which the company ought to be made acquainted (without specifying what is the nature of such last mentioned facts), also that the statements, &c., shall be the basis, and form part of the contract or policy, and if not in all respects true and correct, the policy shall be void.

This application was signed by Fitch, the questions being wholly or in part answered by means of the stipulated hieroglyphics, and a policy was thereupon issued on his life in favor of the plaintiff as assured for $3,000. This policy contains a declaration on the part of the company that it is issued in entire, unconditional, honest good faith, and with the just intent of scrupulously fulfilling all the conditions and engagements of the contract with absolute certainty, and then proceeds to state that fraud or intentional misrepresentation violates the policy, and that the statements and declarations made in the application are warranties, and in all respects true, and do not suppress or omit any fact relative to the insured affecting the interest of the company, or which, whether material or not, would tend to influence the company in taking the risk. To this policy is annexed a notice to the policy holders of the conditions of the insurance, one of which is, that proofs of loss may be presented at any time, but that as the payment will be contested only in case of fraud, it is agreed and provided, in order that the facts may be fresh and attainable, that no action on the policy shall be sustainable unless commenced within twelve months after the decease of the insured.

It seems to us - looking at all these papers together, considering the character of the minute inquiries made of the applicant, the extravagance of supposing as to many of them that any one could undertake to answer them categorically as required, and warrant the answers, or at most do more than express an opinion concerning the subject of them, coupled with the repeated professions of good faith on the part of the company and exhortations to like good faith on the part of the applicant, and the

Vol. II.]


[No. 11.

en tone of thonly by dihe sole objeverything or inten

declarations, that if the application is made in good faith, equal to that professed by the company, and the conditions fulfilled, premiums paid, &c., the assured may confidently rely upon the prompt payment of the assurance by the company as one of the most certain of human events; that the assurance can be jeopardized only by dishonesty or inexcusable carelessness on the part of the applicant ; that the sole object is to protect the honest from the effects of misstatements by having everything so plain that a misstatement can be made by intention only, that`fraud or intentional misrepresentation violates the policy, and that the payment will be contested only in case of fraud — the true construction of the papers is that the policy is to be void only in case of intentional and fraudulent misrepresentation or suppression of facts by the applicant, and that although the term warranty is used, yet its legal effect is so modified by the explanations and declarations by which it is accompanied, that it imports no more than an assurance that the statements are made honestly, in good faith, and are believed by the applicant to be correct and true. These explanations and declarations are so inconsistent with the legal effects of warranty, in the strict legal sense of the term, that both cannot stand together; and to hold the applicant to the strict rules applicable to warranties would be to entrap him into an agreement which he never intended to make.

The statement, that payment of the loss will be contested only in case of fraud, is one easily comprehended by every man of ordinary understanding, and together with the other plain declarations, explanations, and assurances contained in the papers must have been intended and were calculated to inspire confidence in applicants for insurance, and to induce them to believe that an unintentional and honest mistake or omission on their part, in travelling through the maze •of complicated questions put to them, would not be taken advantage of by the company. Where a warranty is understandingly and clearly given by an insured, no matter how immaterial the fact warranted may be, he will be held strictly to his contract. But when thrown off his guard and induced to enter into such a contract by declarations of the insurer, such as appear in this case to have been contained in the papers prepared by the defendant and evidencing the contract, the declaration in the same papers, that the statements are warranties and the basis of the contract, &c., must be so construed, if possible, as to harmonize with the explanations and declarations of the insurer, and if this is not possible they should be rejected.

Under this view of the contract it was necessary, in order to sustain the defence, to show not only that the statements were untrue, but that they were known by the insured so to be, and that they and the alleged omissions were made intentionally and with a fraudulent design, and to entitle the defendant to the nonsuit asked, it was necessary that this fraud should be so conclusively proved that there was no question for the jury.

There was some evidence tending to show fraud in the statement and in omitting to mention certain facts; but this evidence was in our judgment far from being of that conclusive character and so uncontroverted as to have justified the judge in nonsuiting the plaintiff.

The main facts relied upon were that some six years before the policy was applied for the deceased had had an inflammation of the eyes, termed

Vol. II.]

Fitch v. AM. POPULAR LIFE INs. Co.

No. 11.

sed as the; 1870, and have justified oof was contr bis having

by the physicians conjunctivitis. The evidence tended to show that this was caused by some sand being thrown in his eyes while in the army in 1864, and that he had been discharged from the army for this cause. That this conjunctivitis was merely a temporary inflammation of the eye, of which he had been long since cured, and that it was not calculated to affect the duration of his life. That he had been confined in the hospital in Virginia by reason of this inflammation of the eyes in October, 1864, when he was furloughed, and that he was treated for the same complaint by Dr. Benson, in November, 1864, and was finally discharged from the army in May, 1865.

It was attempted to be proved that his eyes bore traces of his having had iritis at some period of his life, but this proof was controverted by evidence, and therefore would not have justified a nonsuit. The policy was issued in November, 1870, and it is not claimed that he then had any disease of the eyes. The application contained an inquiry whether the deceased “had ever had any illness, local disease, or injury in any organ," which question he answered in the negative.

This is claimed to have been a misrepresentation and breach of warranty by reason of which the plaintiff should have been nonsuited.

The president of the defendant, who appears to have been a physician, enumerates about fifty parts of the human body which come under the denomination of organs, including among others the eye, the nerves, bones, cartilages, veins, glands of the skin, &c., and it is claimed by the defence that an injury to or disease of any of these organs at any previous period necessarily rendered the answer given by the deceased a breach of warranty, or a misrepresentation which should avoid the policy. If a finger had been broken, the skin injured, or a vein cut at any period of the applicant's life, the policy would according to this doctrine be void.

We think that, according to the construction which we have put upon the contract in question, the judge would not have been justified in holding that the omission to mention a temporary injury to the eye by sand being thrown into it, which had produced inflammation, six years before the policy was applied for, and which was then cured, was conclusive evidence of fraud, or breach of warranty sufficient to avoid the policy. If of any importance, it was at most evidence of fraud to be submitted to the jury.

These policies are provision made usually by persons of slender means for the benefit of their families in case of death. They sometimes devote their small savings for many successive years to paying the premiums. To justify us in holding that all the answers given to the multitude of questions asked in the case before us are warranties, and that a mistake or unintentional omission as to any of them should avoid the policy, the clearest, most unequivocal, and unqualified language should be employed in the policy and conditions.

A company cannot be permitted in the same papers to say to the assured, to induce him to enter into the contract, that nothing but fraud or intentional misstatement shall avoid his policy, or that payment will be contested only in case of fraud, and when the claim for payment is presented, to set up as a defence a merely technical breach of warranty in relation to some trivial matter. In a case like this, considering the numVol. II.)

Fitch v. Am. POPULAR AM. LIFE Ins. Co.

[No. 11.

ber and character of the inquiries made of the insured, if the answers were all held to be warranties it would in substance be optional with the company whether to pay or not, for it would be a marvel if some flaw could not be found in the application. No intelligent person would knowingly invest his earnings in so precarious a security.

Another alleged ground of nonsuit was the response of the applicant to the question: “Family physician, and each one who has ever given the party medical attendance? if neither exists, name some medical man, an acquaintance, who knows the party well.” The answer was, “ Have none."

This answer was upon its face incomplete. It applies only to the call for the name of the family physician. Whether the suppression of the name of Dr. Benson, who had attended the applicant for inflammation of the eyes in November, 1864, and again in 1867, for some other complaint not mentioned, and of the doctor who was called in to visit his boy in 1870, and attended him twice at Troy, were fraudulent suppressions, were questions for the jury. If the defendant had desired a fuller answer to the question it should have insisted upon it at the time.

The same remarks apply to the statements of the applicant as to his vocation, his residence, and to the question whether he had been medically examined for the army or navy, or with reference to insurance; and to his omission to mention the fact of his discharge from the army. There was no such conclusive evidence of fraud or intentional misrepresentation as required the court to pass upon the fact. The refusals to charge as requested are covered by the remarks already made, and this disposes of all the material exceptions, except the rejection of evidence that Fitch, the deceased, committed suicide.

The policy contained no stipulation that it should be void in case of the death of the insured by suicide. It was not taken out for the benefit of Fitch, but of his wife and children. Although they were bound by his representations, and any fraud he may have committed in taking out the policy, the policy having been obtained through his agency, yet they were not bound by any acts or declarations done or made by him after the issue of the policy, unless such acts were in violation of some condition of the policy. We have examined the various grounds upon which the defendant claims that this evidence was admissible, but are of opinion that they are not sufficient.

The order of the general term should be reversed, and the judgment entered upon the verdict affirmed with costs.

All concur, except.CHURCH, Ch. J., and FOLGER J., not voting.

quested ferial excepti suicide.nulation that it

Vol. II.)

Guillon v. Fontain.

(No. 11.



[OCTOBER, 1875.]



A United States court has power, under sec. 915, Revised Statutes, to issue process of

foreign attachment against the property of non-residents, according to state laws.

This was an action of debt, commenced by the plaintiff in error, in June, 1873, by process of foreign attachment, in the district court of the United States for the Eastern District of Pennsylvania.

The attachment was served on July 1, 1873, upon property of the defendant in error, in the hands of garnishees, as indorsed upon the writ; and on the 23d day of July following the plaintiff filed his declaration, setting forth that on the 18th day of October, A. D. 1869, a limited partnership was formed under the provisions of the acts of Assembly of the Commonwealth of Pennsylvania in such case made and provided, between the said defendant, as special partner, and Charles Vezin, as general partner, for the transaction of the business of the importation and sale of gloves, under the firm name of Charles Vezin & Co., for a term to commence on the 18th day of October, A. D. 1869, and to terminate on the 18th day of October, A. D. 1872, the amount of the capital contributed by the said special partner being $50,000 in cash. That afterwards, at various specified times, and while the said limited partnership continued and was in existence, portions of said capital, so contributed by said special partner to the common stock of said firm, were withdrawn by and paid to the said defendant, as and in the name of interest on the said capital, amounting together to the sum of $5,7827. That by such payment of interest to the said special partner, the defendant in this action, the original capital has been reduced by an amount of $5,782706. That afterwards, to wit, on the 29th day of November, A. D. 1871, the said Charles Vezin, trading as Charles Vezin & Co., was, on creditors' petitions filed in the said court, duly adjudicated a bankrupt; and this plaintiff was afterwards, to wit, on the 22d day of January, A. D. 1872, duly appointed assignee, and an assignment, by instrument of writing, under the hand of Edwin T. Chase, Esq., one of the registers in bankruptcy of said court, bearing date January 22d, A. D. 1872 (here shown to the court), assigning and conveying to this plaintiff all the estate, real and personal, of the said Charles Vezin, bankrupt, with all his deeds, books, and papers relating thereto, was duly made and delivered to this plaintiff. By means and reason whereof an action has accrued to this plaintiff, to demand, and have of and from the said defendant, the sum of $5,7827% above demanded.

The defendant failing to appear, a motion was made, at the third term of the court ensuing the execution of the writ, for judgment for such default, which was refused; the court, Cadwallader, J., saying, “ that if the

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