Mullen v. Union Central Life Insurance

Insurance — Life insurance — Agent—Application. Where an applicant for life insurance correctly informs the agent of the insurance company of other policies upon his life, and the agent in filling in. the blank spaces in the application fails to mention certain of these policies, and the application is signed by the insured without its being read by 0«? to him, the insurance company is bound by the omission or neglect of its agent, and cannot claim that the policy is invalid. Life insurance — Insurance by creditor — Evidence—Gross-examination. Where a beneficiary in a policy of life insurance is the brother of the insured, and in support' of his claim as a creditor of her estate testifies to services rendered the insured during twenty years for which he says that he expected to be paid, although he had kept no account of them, it is not improper in cross-examination to ask him whether he had made any effort to collect his claim out of the estate of the insured. Life insurance — Insurable interest — Brother and sister. Not decided whether a brother has an insurable interest in the life of his sister, on the ground of kinship alone. Evidence — Affidavit of defense — Reading affidavit of defense not offered in evidence. It is reversible error for a trial court to permit counsel for plaintiff to read in his argument to the jury the affidavit of defense filed in the ease, when such affidavit has not been offered in evidence by either side.

Appeal, No. 149, Jan. T., 1897, by defendant, from judgment of C. P. Luzerne Co., Jan. T., 1898, No. 122, on verdict for plaintiff. Assumpsit on a policy of life insurance. Before Lynch, J. At the trial the plaintiff testified that he had performed services for the assured, who was his sister, for about twenty years; that he had expected to be paid although he had kept no account of them. He was asked this question on cross-examination: After she died did you endeavor to collect this money which you say she owed you, out of her estate ? Objected to. The Court: I do not see what that has to do with it, Mr. Palmer. Objection sustained, exception noted for defendant. Bill sealed. [1] Counsel for plaintiff, in his closing address to the jury, proposed to read the defendant’s affidavit of defense, and counsel for the defendant objected because the affidavit of defense and the files in the case had not been formally offered in evidence. The Court: I think the affidavit is evidence, and counsel may read from it in his address to the jury. Exception noted for the defendant, bill sealed. [2] The court charged in part as follows : [The plaintiff has testified as to the service rendered by him for his sister for twenty-two years, and what they were. Tou will remember that he said that his services consisted in looking after her garden, hoeing it, raising garden truck for her, and some other services, and in shingling her house, and that his services were worth during that time at the rate of $6.00 a month. If you believe what the plaintiff has testified to on that subject, that he labored for this woman in the neighborhood of twenty-two years, and that his services were worth at the rate of $6.00 per month, then he was such a creditor as would give Mm an interest in the life of the sister at the time the insurance was effected. If, however, you.believe these services were gratuitous, that he never intended to charge her for the same, that he did not look upon her as his debtor, but it was a free gift of the services, then he would not be such a creditor. He testified on that subject that he did charge her for the services, or kept an account of that charge, I have forgotten the exact words, but it was not in a book; that he did intend she should pay, but he did not know how. It makes no difference whether he knew how or not, if he intended that she should pay him for the services, and I take it no matter whether he could enforce the claim against her in law or not, he would have such an interest in her life as would entitle him to maintain this action in this case, and, therefore, we do not think the court would be warranted in holding, as a matter of law, that this was a mere gambling policy upon the life in which the plaintiff had no interest.] [3] [As to the second point of defense, the plaintiff and Andrew Weir, the agent, testified that the answers to the printed interrogatories were written by the agent of the company; that when he asked what other insurance there was on the life, of Mary Howley, she mentioned the policy for $1,000, and the Metropolitan policies for $435, and that the agent had learned from other sources of this insurance, and that in writing the answers he, by mistake or otherwise, omitted to mention the Metropolitan policies, and that Mr. Weir did not read to them the answers which he had written in the application. You will inquire, did Mrs. Howley give truthful answers as to the other insurance on her life, and did the agent by mistake omit to insert the correct answer ? Did she and the plaintiff sign the application through ignorance of the fact that the answers were incorrectly written, and was or was not the application read after the answers had been written by the agent? You will see the importance of this. If Mrs. Howley gave an untruthful answer; if she said she had $1,000 in the Prudential when she had in fact $1,000 in the Prudential and $435 in the Metropolitan, then it is such an untruthful answer as would prevent a recovery in this case. But if she gave a truthful answer to the agent of the company, she being an ignorant woman, unable to write at least, and the agent through mistake put down $1,000 instead of $1,435, and she, without having the policy read to her, or without having the application and the answers read to her, signed the answers so incorrectly written down by the agent, it would not bar or prevent a recovery in this case. In other words, if it was the agent’s mistake or fraud in writing down the answers, and not that of Mrs. Howley or the plaintiff here, and she and the plaintiff here signed the application, believing that her truthful answers were correctly written down, it would not bar a recovery, but if it was her untruthful answer, or even her mistake in giving an untruthful answer, the plaintiff could not recover.] [4] [If you believe the evidence adduced upon the part of the plaintiff, and there is no other evidence in the case, you should find a verdict for the plaintiff for the amount of $1,500, and interest from October 9,1892. Whether you believe the evidence or not is for you to decide. The credibility of the witness is for you to pass upon, and not for the court.] [5] Verdict and judgment for plaintiff for $1,867. 50. Defendant appealed. .Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) permitting counsel to read affidavit of defense not offered in evidence; (3-5) above instructions, quoting them.