Connecticut Mutual Life Insurance Company v. Schwenk

ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania.

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, 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.

Mr. Michael Arnold for the plaintiff in error.

The court declined hearing counsel for the defendants in error.

MR. JUSTICE STRONG delivered the opinion of the court.