De Camp v. New Jersey Mut. Life Ins.

7 F. Cas. 313, 21 Pitts L.J. 162, 3 Ins. L.J. 89, 1873 U.S. App. LEXIS 1595

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 22, 1873
• Status: Published

Opinion

SHIPMAN, District Judge.

Gentlemen of the jury: This is an action to recover the sum of $10,000, and interest, being the amount named in a policy of insurance executed by the defendant upon the life of John H. De Camp, and payable to his wife, the plaintiff. It is evident from the testimony that the application for the policy dated June 4th, 1869, was made by the defendant and her husband at the suggestion of A. B. Colton, who, although he may have professed to be the agent of the company, was not then in any way in their employ; that he carried the application to the company, which was approved, and the policy produced upon this tidal was executed by them on tbe day of its date, June 5tli, 1800; that the policy on said day was handed to Colton by the company, with instructions to deliver it to the parties named therein only in event of the payment of the premium to him; that he was authorized to receive the premium, and thereupon deliver the policy; that no instructions or information were communicated directly to Ihe De Camps by the company; on the 24th day of June the insured died; on the 20th day of June, 1809, after the death of De Camp, the company by letter to Colton revoked the authority conferred at the time of the execution of the policy, Colton having informed them that the policy was not delivered; that the company never received from Colton any portion of the premium. These, gentlemen, are conceded facts, or else so proved that there is no serious or honest controversy in regard to them. It is testified by Mrs. De Camp that on the 5th or Gth of June, Colton delivered the policy to her husband, who accepted its terms and delivered it to her and promised to pay the premium in a few days, and that on June 14th he did pay the premium, amounting to 8240, to Colton, who received it as in full payment. The company produce certain letters from Colton, which state that he has not delivered the policy. These letters, Col-ton being accessible as a witness, are not evidence to prove that the policy was not delivered or that the premium was not paid to him. but are explanatory simply of the letters of the company in revoking the agency.

There is no direct evidence on the subject of the payment of the premium and the receipt of the policy, except that given by Mrs. De Camp. The defendant offers testimony that after the death of Mr. De Camp,' the policy being then in the possession of Colton, the policy was obtained from him by ihe plaintiff by an action of replevin, and offers testimony to prove that by collusion that policy was redelivered to Mrs. De Camp, who thus obtained it through a species of fraud. The plaintiff explains this evidence by her testimony that Colton received the nolicy from her before the death of her husband for the purpose of being deposited in a safe in New York, where she had other papers, for safe keeping, and that she sued him subsequent to the death of her husband to recover its repossession. The principles of law applicable to the facts in this part of the ease ore as follows: First, that Colton, prior to the execution of the policy, was not an agent of the defendants, although he may have professed so to act. Second, that upon the execution and delivery of the policy to him, he became the special agent of the company to receive the premium and to deliver the policy upon such receipt. Third, that assuming that the representations in the application are true, if you find that the De Camps were made acquainted on June 5th or 6th with the terms of the policy which had been executed by the defendants, and accepted those terms, and paid $240 on the 14th of June to Colton, who received the money as in full payment of the premium, that thereupon it became a perfected and binding policy, notwithstanding Col-ton never paid the money or any part thereof to the defendant. It is true, as a general rule, that if, after the representations were actually made, a material change in the health of the insured occurs before the contract is consummated, it is the duty of the parties to inform the company of such facts; but, fourth, if you find that the policy was executed by the defendant and handed to Colton to be delivered to the applicants upon the receipt by him of the premium, and that they became acquainted with its contents on the 5th or 6th, and assented thereto, and promised to pay the premium in a few days, that the contract then became consummated, subject only to the payment of the premium, and that no duty was incumbent upon them thereon, except to pay the preimum, and upon its payment within the time named, to Col-ton, the policy became a completed contract, whereby the defendant insured the life of De Camp from June 5th, 1S69, and that it was not obligatory upon the plaintiff to inform the defendant of any change in the health of her husband, if such there was, which took place after the 5th of June and prior to the 14th. You will then perceive, gentlemen, that in my view of the case, the fact of the delivery of the policy to Mr. De Camp on the 5th of June is immaterial, except that I regard it as important for the plaintiff to show that she actually acquiesced in the terms of the contract prior to any supposed change in the health of her husband, and that there was an assent on the part of both plaintiff and defendant to the terms of the policy; that the applicants then agreed to pay the premium, and did not leave the question of an acceptance of the policy an opon one so as to speculate upon the probabilities of health. If the terms of contract were definitely agreed to on the 5th or 6th, naught remains but the payment of the premium, which was paid as promised, and before the death of the insured. I regard it as of no particular moment who had the custody of the policy between the 5th and the 14th. If I did regard it as material, I should charge you upon that point. The delivery of a policy is often a material point when credit for the payment is given or pre-payment is waived, and when payment of the premium is deferred until after the loss occurs. But when the terms of the policy are assented to by both parties, that is, when the company executes the policy and tenders it to the insured as the contract of the company, and the insured examines the policy and assents to its terms, agrees to it, and says, I am satisfied with that contract, I assent to it, and subsequently, before the loss or before a revocation, pays the premium, then it is immaterial for the purposes of the case who has the custody of the policy for the time being before its payment, because It being a contract completed, if the company has it, it can be obtained from it by due process of law, or if it is destroyed, secondary proofs of its contents can be exhibited upon the trial. So that thus far, it is necessary that the premium be paid at some time either before or after the loss. If this premium was paid on the 14th, and prior to that time, Upon the 5th or 6th, the contract was assented to on the part of the applicants, it then became a policy from June 5th. If it was not paid on the 14th, why it is agreed that it never was paid, for it confessedly has never been paid at any other time since that date. But if the payment and receipt of the policy was part of a collusive and fraudulent scheme, carried out and perfected after the death of De Camp by collusive proceedings, arranged between the plaintiff and Colton, under which she got possession of the policy, then the plaintiff cannot recover.

Now, to return to the testimony. The testimony upon these points comes from Mrs. De Camp. Colton is not a witness. You have heard the testimony in regard to the obtaining possession of the policy from Col-ton after the death of De Camp, or the recovery of the policy, as the plaintiff would put it. One side put it that it was an obtaining possession for the first time. The other side says that it was obtaining a recovery of the policy. It therefore having been lawfully in the possession of Mrs. De Camp, I shall not spend much time—any time in recapitulating the testimony. It is sufficient for me to say that if Mrs. De Camp is to be believed, if you rely upon her testimony—and you saw and heard her— then she had a right to the possession of the policy from and after the 14th of June. If you find the question thus far submitted to you in favor of the plaintiff, you will proceed to consider the other questions in the case, upon which the plaintiff rightfully says that the defendants take the burden of proof. Mr. De Camp died on the 24th of June, and proofs of loss were thereafter furnished to the company. By the terms of the policy, the representations made in the application by the applicants in regard to the health, history and habits of life of Mr. De Camp, became a part of the policy, and upon the faith of these representations the policy was issued, and if untrue in any material fact, the policy was avoided. Such statements are sometimes considered in law as warran-. ties, and are sometimes called material representations, which must be true. The only representation upon which evidence has been offered by the defendant is the statement in regard to the temperance, and perhaps the general health of the insured; but the statement in regard to the sobriety and temperance is the principal one upon which evidence was offered. Whether the statem mt in regard to which a question is here raised is a warranty or a material representation, the rule of law applicable to its truth is the same; and that is, that at the time of the application, Mr. De Camp must have been, and be found by you to be, a sober and temperate man in his habits in reference to intoxicating liquors, or the policy is voided, because the company had required and had a right to obtain correct information upon a point which they properly conceived to be material to the risk. The question did not inquire whether De Camp totally abstained from the use of liquor, but it did inquire whether he was a sober man; that is, whether he so far abstained, that is, whether he was such an abstinent that he was as a habit free from the excitement which the use of intoxicating liquor causes, and whether he was a temperate man—that is, was he habitually so far free from the use of liquor as to be a temperate man? If the defendant has satisfied you, on the evidence produced, that these questions in regard to the habits of De Camp, when he made the application, were not rightfully answered by him and his wife in the affirmative, the representations which De Camp made were untrue, and if untrue in this material respect, the company did not have a fair and honest statement of the risk which they were called upon to insure, and not having had such a statement the policy Is avoided. Now, to come to the evidence upon this point of representation, that is, upon the habits of Mr. De Camp as to sobriety and temperance, prior to the 5th of June. The evidence on the part of the defendant— who, as I have said, takes the burden of proof —is Mrs. De Camp’s statement before the coroner’s jury, the evidence of the two Horn-ers, and the fact, and 'the inferences which they would draw from this fact, to wit, that assuming that he died on the 24th of June from the effect of intoxicating liquor and stimulants, it ‘is not credible that the use of liquor for so short a time as from the 5th to the 24th of June could have produced such serious results. Now, the evidence on the other side is that of various witnesses, and of the picture which has been produced before you and which was taken after the application, and which, as the plaintiff claims, shows that at that time, even after the application, and after he began, as the defendants say, to use liquor, shows that he was in apparent good health and free from outward and visible marks of intoxicating drink. The evidence on the other side consists of various witnesses who were produced by them. In the first place, Judge Roberts, Mills, Cochran, and the clerk of the board of supervisors, the various ladies who were produced upon the trial, and the other gentlemen living in and about Rye, whose names I cannot at this moment recall, but which you will recollect upon reflection, together perhaps with the last witness, the young man who had known him during boyhood and who had continued his acquaintance from that time down to the time of his death. These witnesses testify, as the plaintiff says, that De Camp’s habits during the time that he lived at Bye'were uniformly those of a temperate and sober man. You will examine the evidence and ascertain whether the -defendants have made out this point by a preponderance'of proof.

The next condition of the policy is that if the insured shall die from the habitual'use ■of intoxicating liquors, the policy-is avoided. In this condition they stipulate that the cause ■of the death shall not be the habitual use ■of liquor voluntarily taken by the insured. I am asked to charge that these conditions ■ are to be construed strictly against the company. In cases where the construction of language is the matter of any doubt, and where the meaning is ambiguous, that rule has been laid down by the courts, and is a correct one. In cases where the meaning is plain and the words are simple, the rule, while it exists, is not so important; but each word and adjective is material and is to be considered. The policy is substantially “that, if the insured shall die by the habitual use ■of intoxicating liquors;” the adjective “habitual” is material. It was inserted deliberately by the defendants in their contract, • and has its meaning. I do not suppose that if a uniformly temperate man should be overcome with liquor, and die in consequence of a single debauch, he could be said to die in consequence of the habitual use of liquor. But it is not for me to say how long the use -of liquor must be considered to make it habitual. You are to judge of this fact as of -■any other fact in the case. The law very frequently requires juries to find what is a reasonable time; there are numerous instances where juries are called upon to examine questions of that sort And so you ■ are to determine in case this man did die by use of intoxicating liquor, whether it had become habitual or whether it was a temporary thing, and you are also, -permit me to say, permitted to find, if you choose, that the use of liquor between the 5th and 24th, or "if you choose to find that the use of liquor for three weeks is an habitual use, you are permitted to do so. It is a thing entirely with- ' in your power. The testimony of the defend-ants is, that the death was caused by the excessive use of alcoholic liquors and opiates, and that statement is contained in the physician’s certificate of death, and is exactly or substantially contained in the verdict of the •coroner’s jury. Now, in regard to the manner of his death, if De Camp used liquors 'habitually and excessively, and used opiates also, for the purpose of allaying the excitement of the liquor, and they combined to •cause and did cause his death, and the liquor, directly, materially and effectually contributed to his death, then the policy was avoided. If you find that he used an undue • quantity of liquor habitually, and in the wild and excited state which liquor created resorted to overdoses of opiates to produce quiet, and so, from the combined effect of these stimulants and narcotics, died—-and observe this; if you find that the stimulants, that is liquors, directly, materially and effectively* contributed to his death, then the policy is not binding upon the company.

Before considering the testimony I will refer to a point made by the defendant in regard to the proofs of loss. The defendant claims that the physician stated in his proofs of loss that the cause of his death was what I have stated, that is, that he died from the exhaustion produced by the overuse of alcoholic liquors and opiates; that is substantially it; that this was in violation of one of the conditions of the company, and the applicant is bound by the statement of the physician’s certificate. I am aware that it has been held in a fire policy that where the applicant makes himself a sworn statement in his proofs of loss, required to be given by the terms of the policy, he is bound by that statement. All that the claimant is called upon in the policy to give, is to give due notice and proofs of the death or loss. The form is not stated. It is not incumbent upon her by the terms of the policy to give a physician’s certificate, although it is proper for the company to ask it, and proper for her to comply with it; but if she does give it, is she concluded by the statement of the attending physician? I think not. It is not her statement. She furnishes it simply to comply with the request of the company. If she was concluded she might be injured, where there was no fraud, on the part of the physician, but where the physician was simply mistaken, and she might be therefore entirely remediless when she had a good case. It is evidence which you should consider and look at carefully. You are to give it weight. It was given at the time with knowledge of the circumstances; it was given under the solemnity of an oath; it was given when the physician was aware of the importance which would be attributed to it by the company, and in a pecuniary matter of no ordinary importance; and, on the other hand, it was not given under the criticism of a cross-examination. This point of the manner in which De Camp came to his death is the great and only leading fact in which a conflict of testimony arises in the case. On the one hand there is the statement of Dr. Johnson, Mrs. De Camp’.s evidence before the coroner’s jury, the verdict of the jury, the testimony before you of three or four physicians—how many I don’t recollect—and the fact that he did die in this sudden manner, and that as the defendant would claim he could not have died in this sudden and untimely manner unless there had been more liquor used by him than is disclosed by the other side. On the other hand, the plaintiff says that the physicians, including Dr. Johnson, do not verify the physician’s certificate; that Mrs. De Camp’s testimony is of no weight before the coroner on account of her excitement and the state of mind in which she was thrown by the sudden death of her husband, and the fact that she was summoned before the coroner’s jury under the circumstances of the case; that Mrs. De Camp now testifies with reliance and self-possession, and differs from her former testimony; that the experts are of the opinion that the symptoms of the post mortem do not point to alcoholism as the cause, or as one of the causes of death. They further show that his death was caused by a high state of mental excitement in consequence of domestic complication, aggravated by the use of liquor, in not large quantities, and mainly by exhaustion produced by very severe and over doses of narcotics taken to allay that excitement.

Now, gentlemen, 1 do not consider it my duty to analyze—to go through the testimony upon the one side and the other, and take up the witnesses and analyze them. I think that you are to look carefully at the physician’s certificate and the verdict of the coroner’s jury, and the testimony offered upon that subject; you are to look carefully and weigh the ' testimony offered on the other side; each item of it; all of it. You have heard all the testimony. It is not for me to decide upon this question of fact, and it is not for me to indicate on this question of fact. It is for you to decide, without any sort of prejudice in favor of or against either of these parties, but simply upon the evidence presented before you. If you find for the plaintiff, you will find the sum of $10,000 and interest from the expiration of ninety days after the rendition of the proofs of loss, and that date I have forgotten.

Mr. Hill: The 20th of October, 1SG9,—that is, the expiration of the ninety days.

THE COURT: If you find for the plaintiff you will find the sum of $10,000 and interest from the 20th of October, 1809.

Is there any point which I have omitted to charge, desired by either of you?

Mr. Hill:.I will only call your honor’s attention to a single fact, that the certificate of Dr. Johnson was given upon the same basis of facts upon which he gave his opinion at the coroner’s inquest, which statement of facts has been materially changed by the evidence here produced.

THE COURT: Well, that is evidence, and they have got to weigh that evidence; I cannot do it; they must do it.

Mr. Hill: I will ask your honor to charge them, that if Mrs. De Camp innocently relied upon the apparent authority to be reasonably inferred from Colton’s possession of the policy, and for that reason was induced to postpone the immediate payment of the premium, the company became bound upon the delivery of the policy to her in the first instance.

THE COURT: However that might be as an abstract question of law, I do not think it is material in this case, because, if her testimony is to be believed, she did pay the premium, and that ended that business.

Mr. Hill: I am in doubt whether I ought to have called your honor's attention to a single word, your charge has been so full,, but in a little different manner from the propositions which i. have made—that there is no-conflict in the evidence, but that Colton delivered this policy on the 5th or Gth of June, 1809, without exacting the pre-payment of the-premium, which act was sufficient of itself in law to justify the belief that the term of' credit for the premium was extended, and. the condition of the policy in this respect waived, and by Mrs. De Camp accepting the policy with that understanding, the contract became valid and operative immediately upon, the company.

THE COURT: That is one of the same-propositions. I think I have charged the jury fully upon that point.

Mr. Hill: There is only one thing more substantially (I suppose that any question of exception may arise after the jury have retired, so that I do not care to prolong the discussion now),—that the maxim of natural justice here applies with full force; that he-who without intention of fraud has enabled a person to do an act which is injurious either-to himself or to another innocent party, shall himself suffer the injury rather than the innocent party who has placed confidence in him should suffer.

THE COURT: That is one of the same class of propositions which, as I have airead}' said, however true they might be as abstract propositions, are not material in this case.

Mr..Hill: There is only one word more. I will ask your honor to charge that the statements of tnis app.ication, if honestly made by Mr. De Camp, are not warranties.

THE COURT: I can only charge that they are representations, and they must be true. If a party makes representations which are mater.al, they must be true; they cannot avoid it by saying that they did not know what they were talking about

Mr. Robinson, after some preliminary remarks: I now ask you to call the attention of the jury to the fact that Mrs. De Camp served such a statement (the certificate of the physician and the verdict of the coroner's jury) sometime after the death of the party, in which statement it appeared that a contributing cause of the death of De Camp was the use of intoxicating liquors; and that they shall take the circumstances into consideration in determining the cause of his death. I merely wish that your honor would call attention to that as well as to the certificate of the physician,

THE COURT: I intended to say that the proofs of loss contain both the physician’s certificate and the verdict of the coroner's jury, which was intended. I suppose, to be an accurate transcript of the verdict

Verdict for the plaintiff for the whole amount, claimed.