Imágenes de páginas

contract continued in force for the benefit of stantially agreed that in such a case the interall tbe parties until the goods were delivered at mediate carrier cannot successfully claim the their destination.

benefit of the provisions of the original conThe opposing contention is, that the contract tract. Martin v. Am. Exp. Co. 19 Wis. 336; between the United States Express Company Bancroft v. Merchants Despatch Transp. Ch. 47 and the plaintiffs did not inure to the benetit Iowa, 262, 29 Am. Rep. 482; Merchants Desof the appellant, and that, when it accepted the patch Transp. Co. v. Bolles, 80 DI. 473: Cam. goods for transportation, it received them un- den & A. R. Co. v. Forsythe, 61 Pa. 81; Ætno der the law and became bound by the ordinary Ins. Co. v. Wheeler, 49 N. Y. 616. rules which prevail in cases where there is no The rule declared by the decisions we have special contract.

referred to is the only one that can be defended If the appellant had been designated in the on principle; for, where the contract designates contract with the first carrier as one of the only one carrier, there is no privity between intermediate carriers, or if the contract had the owners and the designated carriers; but, provided that its stipulations should inure to where the contract is a through one, by desig. the benefit of all the carriers, then the conten- nated carriers there is a privity of contract, for it tion of the appellant would find strong support is justly inferable that the contract was intend. from the authorities. U. 8. Exp. Co. v. Har ed for the benefit of all who perform services ris, 51 Ind. 127; St. Louis, I. M. & S. R. Co. under it. So, too, where the contract declares v., 50 Ark. 397; Halliday v. St. Louis, that it is for the benefit of intermediate carriers K. C. & N. R. Co. 74 Mo. 159, 41 Am. Rep. it may be enforced, since it is a contract for the 309; Evansville & C. R. Co. v. Androscoggin benefit of a third person, and, as it is beneficial Mills, 89 U. S. 22 Wall. 594 [22 L. ed. 724]; to him, it is natural to presume that its terms Maghee v. Camden & A. R. Transp. Co. 45 N. Y. were assented to and forined the contract un. 514; Manhattan Oil Co, v. Camden & A. R. & der which the goods were transported. Wbere, Transp. Co. 54 N. Y. 197.

bowever, the contract is solely for the benetit But the contract does not provide that its of the original parties it is not possible to apstipulations sball inure to the benefit of any ply this rule to it. other carrier than tbe one with whom it was Where, as here, the names of the plaintiffs. made, nor does it designate any other carrier are given in full in the title of the cause, it is along the line. Its provisions apply only to the unnecessary to repeat them in alleging that the carrier with whom the contract was directly plaintiffs were partners. It is sufficient to al. made, and they leave it to that carrier to select lege that the plaintiffs were partners, without the carrier from the termination of its live to again giving their names. the end of the route. The authorities are sub- The name of the defendant imports that it is

contract will be upheld; the valuation and lim- , shipper should put a value on the articles, he cannot itation of liability in the bill of lading, being recover beyond that value. Rosenfeld v. Peoria, D. just and reasonable, is binding on the shipper. & E. R. Co. 1 West. Rep. 150, 103 Ind. 121. Newburger v. Howard & Co's Express, 6 Phila. A stipulation, in a bill of lading, that the carrier's 174; Squire v. New York Cent. R. Co. 98 Mass, responsibility as a common carrier shall terminate 239; Hopkins v. Westcott, 6 Blatchf. 64; Belger v. when the goods are transported and safely stored Dinsmore, 51 N. Y. 166; Oppenheimer v. U. S. Exp. in the depot of the carrier, is not opposed to publio Co. 69 II. 62; Magnip v. Dinsmore, 56 N. Y. 163, 62 policy, and operates to limit the liability thereafter N. Y. 35, 70 N. Y. 410; Earnest v. Southern Exp. Co to that of a warehouseman. Western R. CO. V. 1 Woods, 573; Elking v. Empire Transp. Co. 81* Pa, Little, 86 Ala. 159. 315; South and North Ala. R. Co. v. Henlein, 52 Ala. 606, 56 Ala. 368; Muser v. Holland, 17 Blatchf. 412;

In case of connecting carriers. Harvey v. Terre Haute & I. R. Co.74 Mo. 538; Graves v. Lake Shore & M. S. R. Co. 1:37 Mass. 33, approved The rights of a connecting carrier receiving in H rt v. Pennsylvania R. Co. 112 U. S. 333 (28 L. ed. goods from another carrier are not affected by any 719; Louisville & N. R. Co. v. Sherrod, 84 Ala. 178; limitations put upon the latter's authority by the St. Louis, l. M. & S. R. Co. v. Weakly, 50 Ark. 397. shipper, of wbich the connecting carrier has no no

A bill of lading is the written contract of the par- tice. Price v. Denver & R. G. R. Co. 12 Colo. 402. ties, and by its terms their rights and liabilities When several carriers unite to complete a line of must be measured (Fry v. Louisville N. A. & C. R. transportation, and receive goods for one freight, Co.1 West. Rep. 280, 103 Ind. 205), and one accepting they are each liable for damages during transporit without examining its contents will be bound tation, subject to reclamation against the party by thereby. Snow v. Indiana, B. & W. R. Co. 7 West. whose act the damage occurred. Richardson v. ep. 264, 109 Ind, 422.

The Charles P. Chouteau, 37 Fed. Rep. 532. The effect of acceptance by the shipper of a bill A carrier receiving freight from another carrier of lading is regulated by the Civil Code of Dakota. under an agreement between the latter and the See Hartwell v. Northern Pac. Exp. Co. 3 L. R. A. shipper is entitled to the benefit of any valid lim342, 5 Dak. 463.

itation of the first carrier's liability, just as it is liaThe rule that a shipper must examine a bill of ble for any failure to perform its part of the conlading, or if he does not he is bound by its terms, tract. St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. does not apply where, before delivery of the bill, 397. the goods have been shipped so far that be could A railroad company whose line is one of several not have reclaimed them had he objected to the connecting roads, in the absence of a special conbill; nor does it apply where the parties have acted tract or of an association or copartnership by upon a previous parol agreement. Guillaume v. which each connecting line is liable for the conGeneral Transatlantic Co. 1 Cent. Rep. 723, 100 N. Y. tracts of the others, is not responsible for damages 491; Snow v. Indiana, B. & W. R. Co. 7 West. Rep. for negligence occurring beyond its terminus. In 264, 109 Ind. 4:22; Hamilton v. Western N. C. R. Co. such case its liability is confined to that of a for96 N. C. 398.

warding agent. Knott v. Raleigh & G. R. Co. 98 N. If for the purpose of getting reduced rates the IC. 73.

a corporation, and it was therefore not neces- In deciding, as we have, that the provisions sary to specitically aver that it was a corpora- of the contract with tbe United States Express tion. Adam8 Erp. Co. v. Hil, 43 Ind. 157; In- Company cannot be taken advantage of by the dianapolis Sun Co. v. Horrell, 53 Ind. 527; appellant, we bare disposed of the point that Sayers v. Crawfordsville First Nat. Bank, 89 the damages are limited to $50; but if we were Ind. 230.

wrong in this, still, the limitation will not conThe defendant's denial of the possession of trol, since there is evidence of negligence and the goods at Mooresville excused the plaintiffs no evidence tbat a lower rate of freight was from making a tender of the carrier's charges. I given on account of the limitation placed upon A common carrier waives bis right to detain the value of the property. Rosenfeld v. Peoria, goods for the freight if be puts bis refusal to D. & E. R. Co. 103 Ind. 121, 1 West. Rep. 150; deliver them to tbe owner upon the ground that Bartlett v. Pittsburgh, C. & St. L. R. Co. 94 tbey are not in his possession at the place Ind. 281; United States Erp. Co. v. Backman, where a demand is duly made. Vinton v. 28 Ohio St. 144. Baldurin, 95 Ind. 433, and cases cited; Mathis As there was evidence of negligence, and no v. Thomas, 101 Ind. 119; Platter v. Elkhart evidence ihat there was any special consideraCounty, 103 Ind. 360, 1 West. Rep. 235; House | tion inducing the owners to place a less value V. Alexander, 105 Ind. 109, 3 West. Rep. 316. on their property than its actual worth, the

Where a corporation invests an agent with linitation, even conceding it to be available to general authority to adjust claims against it, the appellant as a part of the contract, is nulthe declarations of that agent, made wbile en- lified. deavoring to secure an adjustment of the claim, The instructions of the court are quite as are competent evidence against bis principal. favorable to the appellant as the law warrants, This general rule bas often been applied id in and the evidence fully supports the verdict. surance cases, and must necessarily apply in Judgment affirmed. such cases as ibis, for, otherwise, the corporation would be entirely without a representa

Petition for rehearing denied September 25,tive.



CIETY of the United States, Appl.,


him responsible for the truth of such answers as reported to the company; and if by being incorrectly written down by such examiner without the applicant's knowledge they are untrue as reported to the company, the policy will not be avoided thereby. 2. The signature of an applicant for life insurance, written at the begin. ning of the paper containing his medical examination, is for purposes of identification rather

(.... Tex.....) 1. A warranty by an applicant for a life insurance that his answers to the 80ciety's medical examiner are true, does not make

NOTE.-Life policy; construction of.

Where a physician, acting as agent for the comA policy of insurance is a single entire contract pany, in examining an applicant for life insurance, and continues during the life of the insured subject assumes to write out the answers to the questions to discontinuance by ponpayment of the premiums. upon bis own knowledge of the facts, rather than Fearn v. Ward, 80 Ala. 555.

from the answers given by the applicant, the anThe provisions of a policy are construed and ap- swers as given by him are conclusive on the complied like other contracts, and may render it void pany. Pudritzky v. Supreme Lodge K. of H. 76 ab initin, by its terms and failure of warranty.

Mich. 428. Connecticut Mut. L. Ins. Co. v. Pyle, 2 West. Rep.

A copy of an application attached to an ins'ır250, 44 Ohio St. 19.

ance policy, which does not have the name of the Questions and answers will be reasonably con- applicant appended thereto, is not a copy of such strued although the policy is conditioned on the application within the Statute of Wisconsin, requirtrutb of the answers. Home Mut. L. Asso. v. Gil- ing a copy to be attached to the policy in order to lespie, 1 Cent. Rep. 134, 110 Pa. 84.

permit the insurance company to prove the falsity Mistakes in policies may be disregarded or cor- of any statement therein. Dunbar v. Phenix Ins. rected. Connecticut Mut. L. Ins. Co. v. Pyle, supra.

Co. 72 Wis. 492.

Whether the signature to an application for inApplication for insurance on life.

surance, which was by mark only, is genuine or not Where the application was signed before being is immaterial, where the policy has been accepted, filled out, the fact that the answers were incorrectly the premiums paid for several years, and received written in by the agent may be established by paroi and retained by the company, with no offer to reevidence; otherwise if the applicant had signed turn them. Home Mut. L. Asso. v. Riel (Pa.) 17 Atl. afterwards. Brown v. Metropolitan L. Ins. Co. 8 Rep. 36. West. Rep. 775. *5 Mich. 306.

Where an insurance contract is ambiguous, the Where an agent of a life insurance company as- doubt should be resolved against the company. sumed the whole preparation of an applicution, and see note to Kratzenstein v. Western Assur. Co. (N. asked or told the applicant to sign it, without her Y.) 5 L. R. A. 799. reading it or hearing it read, the company cannot defend op the ground of false statements in the ap

Company responsible for acts of its agents. plication. Temmink v. Metropolitan L. Ins. Co. 72 The insurance company, and not the insured, isMich. — 40N. W. Rep. 469.

responsible for the falsity of answers inserted in the

see also 12 L. R. A. 315; 20 L. R. A. 761; 21 L. R. A. 746; 35 L. R. A. 692.

A de

than for the purpose of binding him for the truth out the policy, does not render it void; but such of the contents of the paper.

person may be treated as an assignee, appointco 3. Where payment of a policy of life

or trustee to receive the proceeds for whoever insurance is contested because of the

may be lawfully entitled to enjoy them. falsity of certain answers made by the 8. One has an insurable interest in the applicant to questions propounded to him, and

life of his brother. which he warranted to be true, the charge to the 9. There is no special reason for limit. jury upon the question of falsity must be con- ing the amount for which a policy may be fined to such questions and answers as were put taken out when the insurance is obtained by a in issue by the pleadings and evidence, and not person on his own life and made payable origi. extended to all the answers made by the appli- nally or by assignment to another having po, or cant.

only a limited, insurable interest in his life. 4. While an applicant for life insurance

(December 6, 1889.) is not bound to exercise supervision over the writing down of his answers

the District Court for Delta County in by the medical examiner, yet, if he knows that his answers have been incorrectly written down, favor of plaintiff in an action upon a policy of it becomes his duty to see that proper corrections

life insurance. Affirmed. are made, and if he fails to do so he will be estop- The facts are sufficiently stated in the opin. ped from disputing them as written even although ion.

recovery upon the policy is thereby defeated. Messrs. Maxey, Lightfoot & Denton 5. Where a life insurance company con- and Hodges & Lane, for appellant: tests payment of a policy upon the ground

Where a policy of life insurance was taken that it was taken out by the beneficiary as a

out for speculation-at the instance of the benewagering policy, and proves that the beneficiary ficiary, who furnished the money to pay the loaned the insured the money with which he paid premium-upon the life of a brother, twentythe premium, testimony of the agent of the cor- eight years of age, the beneficiary being a man poration is admissible as to negotiations pre- in no way dependent upon the assured, even ceding the application, tending to show that both though there might have been a small indebtedthe beneficiary and the insured were urged by ness greatly disproportionate to the policy, such the agent to apply for the insurance; that the policy cannot be sustained, but is a wagering premium was paid by insured; and that he thought contract and void, as against public policy. of taking the policy for the benefit of the mincr children of the beneficiary, but did not do so be

Price v. Knights of Honor, 68 Tex. 366, and cause the beneficiaries could not then be so easily authorities there cited; Levy v. Taylor, 66 Tex. changed in case such change became desirable.

652; Warnock v. Davis, 104 U. S. 782 (26 L. ed. 6. Where the applicant stated that no

927; Cammack v. Lewis, 82 U. S. 15 Wall. 643 application by him for insurance was Co. 39 Conn. 100; Sing'eton v. St. Louis Mut.

(21 L. ed. 214); Leuis v. Phanix Mut. L. Ins. ever rejected, and it is shown that bis appli- Ins. Co. 66 Mo. 63, 27 Am. Rep. 321; Guardian cation for membership in a mutual benefit society Mut. L. Ins. Co. v. llogan, 80 N. 35, 22 Am. was rejected, plaintiff may show that the company's agent informed the insured that such so- Rep. 180; Keystone Yut. Ben. 1880. v. Norris, cieties were not regarded as life insurance com- 7 Cent. Rep. 204, 115 Pa. 446; Bacon, Ben.

panies and need not be considered as such by him. Societies, $ 250, pp. 368, 370, 595, 363, $ 249; 7. The designation of a person as bene- Bliss, Ins. pp. 27, 40, 42, 43; Stevens v. Warren,

ficiary in a life insurance policy, who has no 101 Mass. 501. insurable interest in the life of the person taking Where both the application and the policy

application by an authorized agent of the company, ! An insurance company cannot repudiate the where the insured had given true answers. O'Brien | fraud of its agent in inserting untrue answers in v. Home Ben, Society, 27 N. Y. S. R. 326.

the application, and thus escape the obligations of Where the law of a State provides that a person its contract, merely because the assured accepted in who solicits or procures an application for insurance good faith the act of the agent, without examinashall be held to be the agent of the insurance com- tion. Kister v. Lebanon Mut. Ins. Co. 5 L. R. A. 646, pany, and such agent fills up the application, his 128 Pa. 553. act in doing so is the act of the company. Conti

Insurable interest in life. nental L. Ing. Co. v. Chamberlain, 132 U.S. 304 (33 L. To create an insurable interest in the life of an. ed. 341).

other, there must be a reasonable ground, founded If the applicant for insurance fully states the in the relations of the parties, -either pecuniary, facts to the agent, and the nt writes the answers or of blood, or affinity,--to expect some benefit or to the questions contrary to the facts stated by the advantage from the continuance of his life. United applicant, the insurance company is estopped from Brethren Mut. Aid Society v. McDonald, 1 L. R. A. making a defense in an action on the policy, by 238, 122 Pa. 324. reason of the falsity of such answers. Continental A stepson has no insurable interest in the life of L. Ins. Co. v. Chamberlain, 132 U.S. 304 (33 L. ed. 341). his stepfather. Ibid.

Where the agent writes in the application that In the absence of any insurable interest of the the applicant has no other insurance, although the beneficiary, the law will presume that a policy was applicant told him that he had certificates of mem- taken out for the purpose of a wager or speculation. bership in co-operative companies, which the agent ibid. said were not considered insurance by him, the A son-in-law has no insurable interest in the life company is bound by the agent's interpretation, of his mother-in-law, who has no visible means of and estopped from asserting the contrary. Ibid. support and whom he keeps and maintains. Stam

The act of an agent authorized to solicit and take baugh v. Blake (Pa.) 22 W. N. C. 407. applications for insurance, in inserting false an. A wife and children have an insurable interest in swers to interrogatories, without the knowledge or the life of the husband and father. Washington fault of the applicant, is binding upon the company. Cent. Nat. Bank v. Hume, 128 U. S. 195 (32 L. ed. 370). Phoenix Ins. Co. v. Stark, 120 Ind. 444.

The foundation of the doctrine is that no one

refer to each other, and warrant that all the Where all the stipulations of a contract of statements made in the application as well as assurance are set out in writing and by its those made by the assured to the medical ex- terms the statements therein are warranted to aminer are true, and stipulate that if any of be true, they cannot be varied upon a material such statements are in any respect untrue the point by contemporaneous verbal statements policy shall be void, any misstatement by the and conversations between the assured and the assured in such application or examination, soliciting agent of the company. whereby the insurer is misled as to his true Union Mut. L. Ins. Co. v. Mowry, New York condition, will avoid the policy.

L. Ins. Co. v. Fletcher, McCoy v. Metropolitan Galveston Ins. Co. v. Long, 51 Tex. 91; Æt. L. Ins. Co. Miles v. Connecticut Mut. L. Ins. Co. na L. Ins. Co. v. France, 91 U. S. 510 (23 L. and Draper v. Charter Oak F. Ins. Co. supra; ed. 401); Jeffries v. Economical Mut. L. Ins. Co. Bliss, Life Ins. $ 82, pp. 122, 123. 89 U. S. 22 Wall. 47 (22 L. ed. 833); New York Messrs. J. A. Templeton, E. B. Perkins L. Ins. Co. v. Fletcher, 117 U. S. 519 (29 L. ed. and E. H. Bennett, for appellee: 934); Vose v. Eagle Life & H. Ins. Co. 6 Cush. Henry Clay Hazlewood had an insurable in42; Metropolitan L. Ins. Co. v. Mclague, 8 terest in his own life, and if he himself in good Cent. Rep. 611, 49 N. J. L. 587, 60 Am. Rep. faith applied for and obtained •he policy sued 665; Bliss, Life Ins. pp. 46, 48, SS 34, 36, on, and paid to defendant all premiums due $$ 37, 38, 50, p. 72; $ 54, p. 79; $ 58, p. 85; thereon, and if he in good faith had the same Sš 59, 60, 64, 77, p. 109; § 82, p. 122; Bacon, made payable to appellee, said rolicy would Ben. Societies, 233, p. 328; $427, p. 637; not be a speculative or wagering policy, but May, Ins. § 298, p. 326; SS 186, 187, p. 195; valid and birding obligation on defendant. Poicers v. Northeastern Mut. L. Asso. 50 Vt. 630. Connecticut Mut. L. Ins. Co. v. Schaefer, 94

Where the contract between the parties for U. S. 457 (24 L. ed. 251); Ætna L.. Ins. Co. v. assurance is one of warranty, and the facts in France, 94 U. S. 561 (24 L. ed. 287); Langion evidence show, or tend to show, that the af- v. Union Mut. L. Ins. Co. 14 Fed. Rep. 272, and firmative warranty of the assured, upon which authorities there cited; Bacon, Ben. Societies, the policy is based, is untrue, the court should SS 248, 249, 397; Bliss, Life Ins. 3 26; Lemmis so cbarge the jury as to leave them to find the v. Eagle Life & H. Ins. Co. 6 Gray, 399; Elkhort truth or falsity of such warranted facts; and it Mut. Aid B. & R. A880. v. Houghton, 1 West. is error to allow them to consider outside con- Rep. 284, 103 Ind. 286, and authorities tberein temporaneous conversations, or other matters cited; Campbell v. New England Yut. L. Ins. Co. concerning the materiality of the questions, 98 Mass. 381; Provident L. Ins. & Inv. Co. v. which were not carried into the written con- Baum, 29 Ind. 236; Morrell v. Trenton Mut. L. tract.

& F. Ins. Co. 10 Cusb. 282, 57 Am. Dec. 92 et Teras Mut. L. Ins. Co. v. Davidge, 51 Tex. seq. 244; Galveston Ins. Co. v. Long, 51 Tex. 89; Henry Clay Hazlewood had an insurable inNew York L. Ins. Co. v. Fletcher, supra; Thomp- terest in his own life, and could effect such son v. Knickerbocker L. Ins. Co. 104 U. S. 252 insurance, and appoint anyone to receive the (26 L. ed. 765); Union Mut. L. Ins. Co. v. Mow-money in case of his death during the existence ry, 96 U. S. 544 (24 L. ed. 674); Bacon, Ben. of such policy. Societies, $ 155, note 1, and authorities cited; Langdon v. Union Mut. L. Ing. Co. Elkhart McCoy v. Metropolitan L. Ins. Co. 133 Mass. 85; Mut. Aid B. & R. A880, v. Houghton and ProvMiles v. Connecticut Mut. L. Ins. Co. 3 Gray, ident L. In8. & Inv. Co. v. Baum, supra. 580; Draper v. Charter Oak F. Ins. Co. 2 Allen, One brother has an insurable interest in the 569; Kibbe v. Hamilton Mut. Ins. Co. 11 Gray, life of another where there is superadded to 163.

that relationship that of debtor and creditor;

sball have a benefit of any kind in a life policy, who An insurance contract is void, unless the insured is not presumed to be interested in the preservation has an interest in the subject matter of the policy. of the life insured. Gilbert v. Moose, 104 Pa. 78. Adams v. Pennsylvania Ins. Co.1 Rawle, 106; Gil

A party having no insurable interest in the life of bert v. Moose, 104 Pa. 80; Stoner v. Line, and Keyanother cannot receive an assignment of a policy stone Mut. Ben. Asso. v. Norris, supra; Downey v. of insurance upon the life of the latter, on an agree- Hoffer, 110 Pa. 109, 16 W. N. C. 184; Seigrist v. ment merely to pay the premiums or assessments. Schmaltz, 5 Cent. Rep. 230,113 Pa. 326; Grant v. Kline, Such an assignment will not vitiate the policy, but 7 Cent. Rep. 620, 115 Pa. 618; Cooper v. Shaeffer (Pa.) will leave the insurance money payable, on the o Cent, Rep. 601; Cammack v. Lewis, 82 U.S. 15 Wall. death of the assured, to the party originally desig- 643 (21 L. ed. 214); Warnock v. Davis, 104 U. S. 775 nated in the certificate. Price v. Supreme Lodge (26 L. ed. 924); Stevens v. Warren, 101 Mass. 564; K. of H. 68 Tex. 361.

Franklin F. Ins. Co. v. Hazzard, 41 Ind. 116, 13 Am. Insurable interest in life of another. See note to Rep. 313; Mo. Valley L. Ins. Co. v. Sturges, 18 Kan. Rittler v. Smith (Md.) 2 L, R. A. 844.

93, 26 Am. Rep. 761; Franklin L. Ins. Co. v. Sefton, That a company is estopped by the fraud of its 53 Ind. 380; Singleton y. St. Louis Mut. Ins. Co. 66 agent, see note to Kister v. Lebanon Mut. Ins. Co. Mo. 63, 27 Am. Rep. 321; Moore v. Small, 19 Pa. 468; (Pa.) 5 L. R. A. 646.

De France v. De France, 34 Pa. 390.
Wager policies.

When the life of a debtor who owes but $100 is inIt is the absence of this insurable interest which sured by his creditor for $3,000, the transaction is gives to the policy the character of a wager con- within the prohibition against wagering policies. tract; there can arise in such case no question of In such a case the court should declare, as a matter motive or good faith. Downey v. Hoffer, 110 Pa. 109. of law, that no more can be recovered by a creditor

The rule,applicable alike to life and fire insurauce, than sufficien to reimburse him his debt, the rests in public policy for the protection of human premium he has paid and interest. Cooper v. Shaeflife and property. Stoner v. Line, 16 W. N. C. 187; fer (Pa.) 9 Cent. Rep. 601. Keystone Mut. Ben. As8o. v. Norris, 7 Cent. Rep. An assignment does not help a wagering policy. 204, 115 Pa. 446.

Stambaugh v. Blake (Pa.) 22 W. N. C. 407.

and in such a case the extent of the recovery | number and variety of questions and answers, will not be limited to the amount of the in relating to the history of the said Henry, and of debiedness due, and the beneficiary may re- bis ancestors and collateral kindred, and to his cover the amount of the entire policy.

physique, system, general health record, babits Goodwin v. Massachusetts Mut. L. Ins. Co. and environment. The answers are usually 73 N. Y. 480, 18 Alb. L. J. 217; Grant v. Kline, “Yes” or “No,” and, from the space allowed 7 Cent. Rep. 626, 115 Pa. 618.

for them in the form used, it is evident that they The clearest and most unequivocal language are required to be monosyllabic. Some of tbe is necessary to create a warranty, and all state. answers are evidently made by the medical ex. menis and expressions of a doubtful character aminer, and some by the subject of tbe examwill be construed as representations merely. ination. There is nothing but the nature of the

Goddard v. East Texas F. Ins. Co. 67 Tex. answers to distinguish those of the medical ex. 69; Moulor v. Am. L. Ins, Co. 111 U. S. 335 aminer from those of the subject of the exam. (28 L. ed. 447); First Nat. Bank v. Ilartford F. ipation; and it is not easy to distinguisti, in Ins. Co. 95 U. S. 673 (24 L. ed. 563); Phoenix some instances, by wbich one the answer was L. Ins. Co. v. Raddin, 120 U. S. 183 (30 L. ed. really made. Wbile many of the questions 644); Alabama Gold L, Ins. Co. v. Johnston, 80 answered by the witness relate to facts peces. Ala. 407, and authorities cited; Continental 1. sarily within his knowledge, and to wbich he Ins. Co. v. Rogers, 8 West. Rep. 88, 119 Ill. 474; | evidently ought to have been able to give catClapp_v. Massachusetts Ben. A880. 6 New egorical and truthful answers, there are others Eng. Rep. 103, 146 Mass. 519; Dilleber v. Ilome seemingly required to be and in fact answered L. Ing. Co. 69 N. Y. 256 et seq.; Stout v. Comuy bim, about which he could not, in the nature merciul Union Assur. Co. 12 Fed. Rep. 554; of things, have had exact and positive knowl. May, Ins. 160-165, 174–178; Bliss, Life Ins. edge, and about wbich it is not probable that $ 404; Bacon, Ben. Societies, $ 468.

he could bave expressed himself satisfactorily No statement in the application made by the by simply answering “Yes” or “No." All assured, and which he at that time bonestly answers were written down by the medical and in good faith believed to be true, would vi- examiner. tiate the policy, even though it should ulti. The policy sets out on its face that it is iesued mately appear ibat such statement was not in “in consideration of the application, and of all respects literally true.

each statement made therein." Among the Moulor v. Am. L. Ins. Co. Alabama Gold L. provisions of the policy is one reading: “If Ins. Co. v. Johnston, Continental L. Ins. Co. v. any statement made in the application for ibis. Rogers, and Clapp v. Massachusetts Ben. A880. policy be in any respect untrue, this policy supra; Southern L. Ins. Co. v. Booker, 9 Heisk. sball be void." The application set out on its 606, 24 Am. Rep. 344, 354; May, Ins. $$ 169, face: “I certify that I am temperate in my 170; Bacon, Ben. Societies, $ 214.

habits, and am, to the best of my knowlerlge

and belief, in sound pbysical condition, and a Henry, J., delivered the opinion of the satisfactory subject for life assurance. This court:

was signed by the insured, and indorsed by the Upon the application of Henry C. Hazle beneficiary. Under the general bealth record, wood, appellant, in August, 1887, issued its the question was asked in the written and policy upon his life, payable to Robert R. Ha printed medical examination wbich was sent zlewood, if living, if not, then to bis brother, forward to the company in New York: “(13) Henry C. Hazlewood, for the sum of $15,000, Any history of serious illness, injury or infirm. payable at the death of the said Ilevry C. H. ity, etc.?" to which the insured answered, C. Hazlewood was a younger brotber of R. R. "No." (165) When, and for wbat, has med. Hazlewood. He died in March, 1888, aged ical ailvice been sought within the last three then about twenty-eight years. Appellee, be years?" to wbich the insured answered “Noihginning with the year 1881, and between that ing." The medical examiner of defendant testime and the date of the application for the intified that he asked both of the above questions, surance, bad advanced to the said Henry C. and the assured answered them as recorded, various sums of money, amounting to about and made no other statements under those $1,200, for wbich the said Henry acknowl-heads. He says: “I wrote the answers. Mr. edged an indebtedness. On the back of the H. C. Hazlewood was sitting at my leit elbow. application for the insurance, and just above I asked him each question, and wrote the the signatures of both of said Hazlewoods, is a answer as he gave it. First, had bim sign at the printed agreement in the following words: top. Asked him questions 1 to 18, inclusive, " It is hereby agreed that all the foregoing and then wrote the answers. After the exam. statements and answers, as well as those made, ination, he asked me what sort of a risk be was. or to be made, to the Society's medical exam. I told him Le could see for himself, and gave iner, are warranted to be true, and are otfered him the report; and he read it over himself. I to the Society as a consideration of the con- asked him each question separately, and wrote tract." In the body of, and on the back of, the his answers. He told me he had not sought application, and above said signatures, there merlical advice in three years. That question are a number of questions and answers relating is considered material. Allare so regarded, as to the risk. Attached to the application is all go to make up the report. Henry Clay another paper, styled “Medical Examiner's Hazlewood gave no history of mental disorder Report,” at the beginning of which appears the or derangement. Applicant ought to have insignature of Henry Clay IIazlewool, and at the formed me of any mental derangement. Ab. end of it the pame of the medical examiner. sent-mindedness, or hallucivations of fear, and Between the two signatures there appear a great' the like,-general belief that someone was after

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