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Argument for Plaintiff in Error.

number of printed questions “to be answered by the person whose life is proposed to be insured,” and “ declared that the above are fair and true answers to the foregoing questions," and that it was agreed by the applicant “that this application shall form the basis of the contract for insurance," "and that any untrue or fraudulent answers, or any suppression of facts,” should avoid the policy. One of those questions was: “Has any application been made to this or any other company for assurance on the life of the party? If so, with what result ? What amounts are now assured on the life of the party, and in what companies?” To this question the applicant answered, “$10,000, Equitable Life Assurance Society.” A policy of that society was in fact the only other existing insurance. IIeld, that the answers were not warranties, but representations; and that the issue of a policy, without further inquiry, was a waiver of the right of the insurers to require further answers as to the particulars mentioned in this question, and estopped them to set up that the omission, though intentional, to disclose unsuccessful applications

for additional insurance was material and avoided the policy. A bill of exceptions should not contain the whole charge of the court to

the jury, but should only state distinctly the several matters of law ex

cepted to. A bill of exceptions cannot be sustained to an instruction or to a refusal to

instruct in matter of law, without showing that there was evidence to

which the instruction given or refused was applicable. The acceptance by insurers of payment of a premium, after they know that

there has been a breach of a condition of the policy, is a waiver of the

right to avoid the policy for that breach. Where the declaration in an action on a policy of insurance alleges that the

consideration of the contract was the payment of a certain premium at once, and of future annual premiums, and the policy given in evidence is expressed to be made “in consideration of the representations made in the application for this policy” and of the sums paid and to be paid for premiums, and the application contains no promise or agreement of the assured, there is no variance.

Tuis was an action at law to recover upon a policy of life insurance issued by the plaintiff in error. Verdict for the plaintiff below, and judgment on the verdict. The defendant below sued out this writ of error. The case is stated in the opinion of the court.

Mr. M. F. Dickinson, Jr., for plaintiff in error, cited: 11 oodruff v. Wentworth, 133 Mass. 309; Stone v. White, 8 Gray, 589; Pierce v. Charter Oak Insurance Co., 138 Mass. 151; Shultz v. Mutual Life Insurance Co., 6 Fed. Rep. 672 ; Cazenove v. British Assurance Co., 6 C. B. N. S. 437; S. C. on appeal,

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Argument for Defendant in Error.

29 Law Journal, N. S. (C. P.) 160; Wright v. Equitable Life Assurance Co., 50 How. Pr. 367; Thompson v. Weems, 9 App. Cas. 671; Jeffries v. Life Insurance Co., 22 Wall. 47; Etna Life Insurance Co. v. France, 91 U. S. 510; Insurance Co. v. Trefz, 104 U. S. 197; Carpenter v. Providence lashington Insurance Co., 16 Pet. 495; London Assurance Co. v. Mansel, 16 Ch. D. 363; McDonald v. Law Union Insurance Co., L. R. 9 Q. B. 328; Ellington v. Ætna Life Insurance Co., 77 N. Y. 564; S. C. 100 N. Y. 536; Rivaz v. Gerussi, 6 Q. B. D. 222; McLanahan v. Universal Insurance Co., 1 Pet. 170; New York Life Insurance Co. v. Fletcher, 117 U. S. 519; McCoy v. Metropolitan Insurance Co., 133 Mass. 82; Batchelder v. Queen Insurance Co., 135 Mass. 449; Fowkes v. Manchester & London Insurance Co., 3 Fost. & Fin. 410; S. C. 3 B. & S. 915; Dilleber v. Ilome Life Insurance Co., 69 N. Y. 256; Connecticut Life Insurance Co. v. Union Trust Co., 112 T. S. 250; N. Y. Mutual Life Insurance Co. v. Armstrong, 117 U. S. 591 ; Moulor v. Insurance Co., 101 U. S. 708; In re General Provincial Life Assurance Co., 18 Weekly Reporter, 396; American Insurance Co. v. Mahone, 56 Miss. 180; Roehner v. Knickerbocker Life Insurance Co., 63 N. Y. 160; Railroad Co. v. Dubois, 12 Wall. 47; Taylor v. Ely, 25 Conn. 250; Insurance Co. v. Wolff, 95 U. S. 326; Devens v. Mechanics & Traders' Insurance Co., 83 N. Y. 168; Bennecke v. Insurance Co., 105 U. S. 355.

Mr. Robert M. Morse, Jr. (Mr. William M. Richardson was with him on the brief), for defendant in error, cited : Hampshire Bank v. Billings, 17 Pick. 87; Stone v. White, 8 Gray, 589; American Insurance Co. v. Mahone, 56 Miss. 180; Connecticut Insurance Co. v, Luchs, 108 U. S. 498; Liberty Hall Association v. Hlousatonic Insurance Co., 7 Gray, 261; Bardwell v. Conway Insurance Co., 122 Mass. 90; Ilall v. Peoples' Insurance Co., 6 Gray, 185; Lorillard Fire Insurance Co. v. McCulloch, 21 Ohio St. 176; Toune v. Fitchburg Insurance Co., 7 Allen, 51; Brennan v. Security Insurance Co., 4 Daly, 296; Fowkes v. Manchester Insurance Co., 3 Fost. & Fin. 440; IIoddson v. Guardian Life Insurance Co.,

Opinion of the Court.

97 Mass. 144; Frost v. Saratoga Insurance Co., 5 Denio, 154; S. C. 49 Am. Dec. 234; Ames v. New York Union Insurance Co., 14 N. Y. 253; Shearman v. Niagara Insurance Co., 46 N. Y. 526; Bevin v. Conn. Insurance Co., 23 Conn. 214; Bouton v. American Insurance Co., 25 Conn. 512; Walsh v. Etna Insurance Co., 30 Iowa, 133; Insurance Co. v. Slockbower, 26 Penn. St. 199; North Berwick Co. v. New England Fire and Marine Co., 52 Maine, 336; Reynolds v. Commercial Insurance Co., 47 N. Y. 597; Kennedy v. Green, 3 Myl. & K. 699; Viele v. Germania Insurance Co., 26 Iowa, 9; Von Bories v. United Insurance Co., & Bush, 133; Westchester Co. v. Earle, 33 Mich. 143; Williamsburg Co. v. Cary, 83 Ill. 453; Anson v. Winnesheils Co., 23 Iowa, 84; Jewett v. Ilome Insurance Co., 29 Iowa, 562; Security Co. v. Fay, 22 Mich. 467; IIorwitz v. Equitable Insurance Co., 40 Missouri, 557; Pitney v. Glens Falls Co., 65 N. Y. 6; Pechner v. Phænir Insurance Co., 65 N. Y. 195; IIadley v. Fire Ins. Co., 55 N. H. 110; Fishbeck v. Phænix Insurance Co., 54 Cal. 422.

MR. JUSTICE Gray delivered the opinion of the court.

This was an action brought by Sewell Raddin, and prosecuted by his administrator, upon a policy of life insurance, dated April 25, 1872, the material parts of which were as follows:

“This policy of assurance witnesseth, that the Phoenix Mutual Life Insurance Company of Hartford, Conn., in consideration of the representations made to them in the application for this policy, and of the sum of one hundred and fifty-two dollars and ten cents, to them duly paid by Sewell Raddin, father, and of the semi-annual payment of a like amount on or before the twenty-fifth day of April and October in every year during the continuance of this policy, do assure the life of Charles E. Raddin, of Lynn, in the county of Essex, State of Massachusetts, in the annount of ten thousand dollars, for the term of his natural life.”

“This policy is issued and accepted by the assured upon the following express conditions and agreements," namely, among

Opinion of the Court.

others, that "if any of the declarations or statements made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, this policy shall be null and void.”

The application was signed by Sewell Raddin, both for his son and for himself, and contained twenty-nine printed “questions to be answered by the person whose life is proposed to be insured, and which form the basis of the contract," three of which, with the written answers to them, and the concluding paragraph of the application, were as follows:

“10. Is the party addicted to the habitual use of spirituous No. liquors or opium?

“28. Ilas any application been made to this or any other company for assurance on the life of the party? If so, with what result ? What amounts $10,000, Equitable Life are now assured on the life of Assurance Society. the party, and in what companies? If already assured in this company, state the No.of policy?

“ 29. Is the party and the applicant aware that any untrue or fraudulent answers to the above queries, or any suppression of facts in regard to the

Yes. health, habits, or circumstances of the party to be assured, will vitiate the policy, and forfeit all payments thereon ?

“ It is hereby declared, that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned that this application shall form the basis of the contract for insurance, which contract shall be completed only by delivery of policy, and that any untrue or fraudulent' answers, any suppression of facts, or should the applicant become, as to habits, so far different from

Opinion of the Court.

condition now represented to be in, as to make the risk more than ordinarily hazardous, or neglect to pay the premium on or before the day it becomes due, shall and will render the policy null and void, and forfeit all payments made thereon."

It was admitted at the trial that all premiums were paid as they fell due; that Charles E. Raddin died July 18, 1881; and that at the date of this policy he had an endowment policy in the Equitable Life Assurance Society for $10,000, which was afterwards paid to him.

One of the defences relied on at the trial was that the answer to question 28 in the application was untrue, and that there was a fraudulent suppression of facts material to the insurance, because the plaintiff, by his answer to that question, “$10,000, Equitable Life Assurance Society," intended to have the defendant understand that the only application which had been made to any other company for assurance upon the life of his son was one made to the Equitable Life Assurance Society, upon which that society had issued a policy of $10,000; whereas in fact the plaintiff, within three weeks before the application for the policy in suit, had made applications to that society and to the New York Life Insurance Company for additional insurance upon the son's life, each of which had been declined.

The defendant offered to prove that the two other applications were made and declined as alleged, and that the facts as to the making and the rejection of both those applications were known to the plaintiff, and intentionally concealed by him, at the time of his application to the defendant; and upon these offers of proof asked the court to rule, First, that the answer to question 28 was untrue, and therefore no recovery could be had on this policy; Second, that there was a suppression of facts by the plaintiff, and therefore he could not recover; and Third, " that the answer to question 28 must be construed to be an answer to all the clauses of that question, and as such was misleading, and amounted to a concealment of facts which the defendant was entitled to know and the plaintiff was bound to communicate.”

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