1. Where it is not a condition of a policy of life insurance
that a statement of the age of the insured should accompany the
proofs of his death, the party for whose benefit the insurance was
effected, although no previous notice was given to the insurers
that such evidence would be offered, is not estopped from proving
at the trial of a suit on the policy that a statement of the age of
the deceased accompanying such proofs, and differing from that made
in the application, is erroneous.
2. An entry in the minute book of a lodge of odd fellows of
which the deceased was a member, made prior to the issue of the
policy and showing his age as recorded by the secretary of the
lodge in the usual manner of keeping its records, is not admissible
as evidence of such age. It is merely hearsay.
This action was upon a life policy dated March 26, 1867,
procured by Anthony A. McDonough from the Connecticut Mutual Life
Insurance Company in the name and for the sole use and benefit of
his wife, Mary D. McDonough. In case she died before him, the
amount of the insurance was payable to her children, for their use,
or, if they were under age, to their guardians, ninety days after
notice and proof of his death. He died on the twelfth day of April,
1869, and she on the sixteenth day of April, 1868, leaving two
children by him and two by a former husband who, by their
guardians, brought this suit.
The application for insurance was signed by Mary D. McDonough
and Anthony A. McDonough, at Reading, March 25, 1867. To the
question, "Place and date of birth of person whose life is proposed
to be insured -- giving month and day?" the following answer was
given: "Ireland, Aug. 11, 1805." "Age next birthday?"
"Sixty-two."
The declaration contains the common counts in assumpsit,
Page 94 U. S. 594
setting forth the policy, the application, interrogatories, and
answers. The defendant filed fifteen pleas. The first two put in
issue the execution of the policy and alleged performance; the
third, that the said Anthony A. McDonough was not born in the year
1805. The remaining pleas set up misrepresentations and false
allegations in the application as to the health and habits of the
insured. The pleas were traversed by replications.
At the trial, the plaintiffs put in evidence the policy, proofs
of death, and, by request of defendant's counsel, the application
for insurance, and then called Adam Schwenk, who swore that within
sixty days after the death of said Anthony, he gave all the proofs
of it to Tilden, the agent of the company, who did not object to
any matter of form.
The defendant having asked for a nonsuit on the ground that the
affidavit of one Nolan, furnished with the proofs of death, showed
that the deceased was between sixty-six and seventy years of age at
the time of his death, the court, notwithstanding the objection of
the defendant that it had not prior to the trial received notice
that such evidence would be offered, permitted the plaintiffs to
call Nolan as a witness. He testified in substance that he had no
positive knowledge of the age of the deceased, but that the age
fixed by him in his affidavit was a mere impression, founded upon
the appearance of the deceased. To the admission of this evidence
the defendant excepted.
In the course of the trial, the defendant, in order to prove
that the age of the deceased was different from that stated in his
application, offered in evidence a certain entry or statement,
dated Sept. 6, 1845, contained in the minute book of Bernville
Lodge of Odd Fellows, of which deceased was a member and at one
time secretary. The court refused to admit the evidence, and the
defendant duly excepted. The jury found all the issues in favor of
the plaintiffs, and, a judgment having been rendered in their
favor, the defendant sued out this writ of error.
Page 94 U. S. 595
MR. JUSTICE STRONG delivered the opinion of the Court.
The issue, out of which arose both the questions brought here by
this case for determination, was founded on a plea that Dr.
McDonough, the person whose life had been insured, was older than
he had been represented to be in the application for the policy. In
that application, made March 25, 1867, his age was stated to be
sixty-two at his next birthday. Accompanying the proofs of death
furnished to the company by the plaintiffs below was an affidavit
of one Thomas Nolan that the death occurred on the 12th of April,
1869, and that the deceased was between sixty-six and seventy years
of age at that time, according to the best judgment of the affiant.
To explain the discrepancy between the statement of the affidavit
and that made in the application, the plaintiffs offered to prove
that the age of the deceased was different from that stated in the
affidavit, and for this purpose they offered to prove by Nolan
himself that he was mistaken and that he had no knowledge upon the
subject. This evidence the court received notwithstanding an
objection by the defendants (the ground of the objection being that
no notice had been given to them prior to the trial that such
evidence would be offered), and the admission of the evidence is
the first error assigned.
In considering the ruling of the court, it is first to be
observed that nothing in the policy required that proof of the
death of the person whose life was insured should be accompanied by
proof of his age at the time of his death. There was, it is true, a
memorandum, endorsed on and folded in the policy that a certificate
would be required from some intimate friend of the age of the
person insured at the time of his death, but the memorandum was no
part of the contract, and it was not shown to either the court, the
jury, or the counsel before the verdict was rendered. Nolan's
affidavit therefore was no necessary part of the proofs of death,
and hence it was immaterial. Yet, having been furnished by the
plaintiffs to the defendant, it was some evidence of the age of the
person insured, though certainly not conclusive. There can be no
reason why it was not open to correction if it was erroneous. This
is not denied by the plaintiff in error, and it could not be
successfully. It has repeatedly been held that errors and omissions
in the proofs of loss furnished
Page 94 U. S. 596
to insurers, in cases of fire insurance, may be corrected or
supplied at the trial. In
McMasters v. Insurance Company of
North America, 55 N.Y. 222, the plaintiff had stated in his
proofs of loss that he had other insurance on the same property --
a fact which, if true, avoided his policy -- and he had verified
his statement by his oath. Yet he was held not to be estopped by
the statement, and he was permitted to prove at the trial that the
statement was a mistake.
Hubbard v. Hartford Fire Insurance
Co., 33 Ia. 325, is to the same effect. So are
AEtna Fire
Insurance Co. v. Allen, 48 Ill. 431,
Comm. Fire Insurance
Co. v. Huckenburger, 52
id. 464, and numerous other
cases that might be cited. But it is contended that evidence to
show Nolan's affidavit was a mistake ought not to have been
admitted without notice to the insurers before the trial that such
evidence would be offered, and in support of this position
Campbell v. Charter Oak Fire and Marine Insurance Co., 10
Allen (Mass.) 213, and
Irving v. Excelsior Insurance Co.,
1 Bosw. (N.Y.) 500, are cited. In the former of these cases, it was
held that if an incorrect statement of a material matter has been
made through mistake in a notice and proof of loss furnished to
insurers, in compliance with a requirement in the conditions of
insurance annexed to a policy, and no amended statement has been
furnished to the insurers before the trial of an action upon the
policy, the insured cannot be allowed to prove the mistake, and
show that the facts were not as therein stated. But that case is
very different from the one we have before us. There a true
statement of the material fact in the proofs of loss was called for
by the policy, and it was made a condition precedent to the
insurer's liability. The erroneous statement, therefore, was relied
upon by the assured, as the notice required by the conditions of
the policy, and as a necessary basis of his suit. It must have
been, in substance, averred in his declaration; and, for these
reasons, the insurers were misled in regard to a matter which the
assured had obligated himself to state truly, as a condition
precedent to his right to remuneration for his loss. But even in
that case the court declined to say that the incorrect statement in
the proofs of loss could not be corrected. All that was decided was
that the
Page 94 U. S. 597
mistake and the correction could not be first made known to the
insurers at the trial of the action to recover for the loss, and
obviously for the reason that the correction then would be a
surprise to them.
Irving v. Excelsior Fire Insurance
Company is substantially the same. Neither of the cases can be
considered as deciding that an insured is estopped by an erroneous
statement of a fact in the proofs of loss furnished by him, even
though a true statement of that fact be a condition of the policy.
He may correct it, though not first at the trial. But in the case
we have in hand, it was not a condition of the policy that a
statement of the age of the deceased should accompany the proofs of
death. The insurer's liability was independent of that. Nolan's
affidavit, therefore, was superfluous, and it was but a statement
of his conjecture. He stated that, according to the best of his
judgment, the person whose life was insured was between sixty-six
and seventy years of age at the time of his death. This can hardly
be regarded as a contradiction of the statement made in the
application. The insurers ought not to have been misled by it, and
it does not appear that they were. They alleged no surprise when
the evidence was offered to show that Nolan had no knowledge on the
subject, and that he was mistaken. We cannot, therefore, say there
was error in receiving the evidence.
The second assignment is that the court erred in rejecting the
minute book of a lodge of odd fellows, offered by the plaintiffs in
error to show the age of Dr. McDonough, as recorded therein in the
usual manner of keeping the records of the lodge. It might perhaps
be enough to say of this, nothing in the bill of exceptions shows
that the minute book, had it been received, would have tended to
prove the age was greater than it was stated to be in the
application for the policy. But, waiving this and conceding also
that when a policy on the life of a husband has been issued for the
benefit of a wife, his admissions made prior to its issue are
admissible in evidence to contradict her statements in her
application, we are of opinion that none of the entries in the
minute book can be regarded as admissions of McDonough respecting
his age. They were made by the secretary of the lodge before
McDonough became a member of it, and they do not state that any
representation
Page 94 U. S. 598
of his age was made by him, much less that he stated his age was
as the secretary entered it. What was entered, then, was the
declaration of a third party, not an admission by the person whose
life was insured: it was mere hearsay, at best. It nowhere appears
McDonough knew of the entry, or assented to it, when it was made,
or that he ever afterwards acquiesced in it. True, he was
subsequently elected secretary of the lodge, and then had the book
of minutes in his charge. He may then have read the minutes, and
thus have obtained notice that such an entry appeared therein. But
it would be going very far to hold such knowledge was any evidence
of an admission by him that the statement of his age made in the
entry was true.
It is argued, however, that though the entry in the minute book
was the declaration of a third person, it was admissible on the
principle of necessity, and we are referred to the line of
decisions in which it is said to have been ruled that written
entries or declarations of third persons are admissible as primary
evidence after their decease when they accompany or are explanatory
of some material fact, or as secondary evidence when the particular
circumstances afforded reasonable assurance that the person who
made them knew the fact stated, communicated it faithfully, and
cannot be obtained to testify. Without pausing to inquire whether
the doctrine asserted in these cases is as broad as the plaintiffs
in error state it, the present case clearly fails to come within
it. The secretary who made the entry in the lodge minute book had,
so far as it appears, no peculiar means of knowledge of Dr.
McDonough's age, and there is no proof that he was not living at
the trial. For aught that appears, he might have been called as a
witness.
Again it is argued that a man's age is one of the elements of
his pedigree, and that in proving pedigree, hearsay evidence is
admitted. The arguments is fallacious. It is true, the age of a
person may become material in questions of pedigree; but even then
the hearsay declaration of strangers, persons not related by blood
or marriage, are inadmissible to prove it. Moreover the present
case involves no question of pedigree. The proof of age was not
offered for the purpose of showing parentage or
Page 94 U. S. 599
descent, both of which were impertinent to the issue between the
parties. The assignment of error cannot, therefore, be
sustained.
Judgment affirmed.
