Mutual Benefit Life Insurance v. Wise

Grason, J., delivered the opinion of the Court. The record in this cause contains two exceptions, the first, taken to the ruling of the Court below in excluding from the consideration by the jury the evidence therein set out; and the second, to the rejection of ten of the eleven prayers offered by the appellant, its first prayer having been conceded. The rejected prayers all relate to certain answers made by Henry A. Wise, Jr., to questions five, eleven and fifteen put to him before the policy was issued by the agent of the appellant. The appellee, by her declaration in writing, dated the seventeenth day of May, in the year 1867, (the same day the policy-bears date,) and filed with the application, declared that the age of said Henry A. Wise, Jr., at his next birth-day thereafter, would be thirty-three years.; that he did not, to the best of her knowledge and belief, practice any bad or vicious habit that tended to shorten life, and that she had an interest in his life to the full amount of $20,000; and she thereby agreed that the answers of the said Henry A. Wise, Jr., and those of his friend and physician, should be the basis of the contract between herself and the company, and that if any untrue or fraudulent allegation should be contained in those answers or in said declaration, all moneys which should be paid to the ⁵⁹⁷ company on account of the insurance, made in consequence thereof, should be forfeited for the benefit of the company.

The policy contains a stipulation that it shall be void if “the declaration made by the assured, and upon the faith of which this agreement is made, shall be found in any respect untrue.” The fifth, eleventh and fifteenth questions, to which the prayers refer, and the answers thereto, are as follows: “ 5. Has the party been or is he now employed in any military or naval service?” The answer was “no.” “11. Has the party had any sickness within the last ten years; if so, what?” The answer was, “pneumonia in 1862.” “15. Has any company declined to insure the party; if so, what company, when, and for what reason ?” The answer was “ no.” The contract between the parties having been entered into upon the basis of the truth of these answers, it becomes necessary to ascertain whether they constitute warranties, which cast upon the assured the onus of proving the literal truth of them, or whether they are representations merely, and if representations, whether their materiality, as well as their truth, is to be passed upon by the jury.

We have carefully examined and considered the authorities referred to in the argument, and are of opinion that the true rule of construction of contracts like this, is that adopted and acted upon in the cases of Anderson vs. Fitzgerald, 4 House of Lords’ Cases, 503-514, and Campbell vs. New Eng. Ins. Co., 98 Mass., 381 . Both of those eases presented questions almost identical with those raised in this case, and in each of them it was held that the answers were not warranties, but representations made material by the agreement of the parties, and, therefore, that their truth alone was open to the consideration of the jury.

In those cases, it was also held that it was not incumbent upon the insurer to show that the answers were morally false, but that if they were shown to be simply untrue, it would be sufficient to defeat the plaintiff’s action. Being satisfied that those cases announce the true rule of construction of such ⁵⁹⁸ contracts as the one before us, we will now proceed to consider the prayers. The second, third, ninth and tenth prayers refer to the eleventh question and answer. Upon the theory of these prayers, notwithstanding the jury might find that Mr. "Wise’s answer that he had pneumonia in 1862, was true, yet their verdict must have been for the appellant, if they further found that he had had “ chronic pharyngitis ” within the ten preceding years, and that he had not communicated that fact, and that he had been treated therefor by a physician, however innocent he may have been in making said answer.

By the tenth question, Mr. Wise’s attention had been directed to certain diseases, specifically enumerated therein, and had been asked if he had had any of those diseases, and upon his replying in the negative, he was asked by the eleventh question if he had had any sickness within ten years. It is not alleged that the answer to this question, as far as it went, was untrue, but it is contended that it ought to have gone further and disclosed the fact that he had had “chronic pharyngitis” in 1860 or 1861. There is evidence in the record to show that pharyngitis is an inflammation of the throat, and, when slight, not to be called a sickness, and not likely to shorten life. If "the policy in this cáse is to be avoided by the fact of Mr. Wise having had this affection in 1860 or 1861, and by his not having disclosed that fact in his answer, then, if he had suffered from any slight indisposition or sickness within the same period, and had failed to communicate that fact in answer to the eleventh question, the policy of insurance would' have been made void.

His attention having been directed by the tenth question to certain diseases particularly named therein, Mr. Wise may have very naturally supposed that the eleventh question had reference to diseases or sicknesses of the same class, and like importance. It will be recollected that pharyngitis is not named in either the tenth or eleventh questions, and that there was proof to show that it is an affection slight in its character and effects; and if, as matter of law, a ⁵⁹⁹ policy is to bo avoided, if a party insured is shown to have had it some six or seven years before insurance, and that he failed to make it known in answering a question like the eleventh, then policies on lives, where the truth of answers to questions is made the basis of the contracts, would be mere devices by which insurance companies could obtain money, by way of premiums, without becoming liable upon the policies issued to the insured. The four prayers now under consideration were therefore properly rejected, because they did not leave it to the jury to find from all the evidence before them upon this matter, whether “chronic pharyngitis” was a “sickness ” in contemplation of the parties in putting and answering the eleventh question, in addition to the other facts which these prayers required the'jury to find. The eleventh prayer denied the appellee’s right to recover if the jury should find that Mr. Wise was a chaplain in the Confederate army in the year 1862.

The only evidence as to this point, was a statement of Mr. Haxall, who, without being