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THE GREEN BAG

INSURANCE. (Evidence — Declarations.) Perm. — In Nophsker v. Supreme Council of Royal Arcanum, 64 Atlantic, 788, it is held that in an action on a life policy defended on the ground of false representations by the insured as to his health, it is competent to show declarations made by him prior to the date of the policy, as suffering from a disease, where he denied ever having had such a disease in his application for the policy. In the lower court the offer of such evidence was excluded. Counsel for plaintiff cited in support of the ruling certain New York cases, but the Supreme Court points out that such decisions were afterwards overruled and distinguished by the New York Court of Appeals in Swift v. Mass. Mut. Life Ins. Co., 63 N. Y. 186, 20 Am. Rep. 52a, where it was held that in an action on a policy of life insurance, " evidence of declarations made to third parties by the insured at a time prior to and not remote from his examination and in connection with facts or acts exhibiting his then state of health, is competent on the question as to the truthfulness of statements made by him to the examining physician as to his knowledge that he had or had not had a certain disease or symptoms of it." This case follows a proper distinction, originally made clear in the New York case cited; there are however later cases, e.g. Smith v. N. B. Society, 123 N. Y. 85, 25 N. E. 197; Towne v. Towne, 191 Ill. 478, 61 N. E. 426. But the important modern question in the use of such declarations is usually in their aspect as admissions of a party or predeces sor in interest. In this aspect the recent article of Mr. A. M. Kales, 6 Columbia Law Review, 509, exhaustively considers them; and the statements of principle made in 2 Wigmore on Evidence, § 1 08 1, should be regarded as modified to meet the conclusions of that article. J. H. W. From the court's reliance upon Swift v. Mass. Ins. Co. supra, it seems that an important distinc tion was overlooked. In Swift v. Co., the state ments of the insured that he was ill, were offered not to prove the illness but to prove knowledge on his part of the illness which was otherwise shown to exist. This knowledge was material since the insured in his application had not as serted health positively, but simply his belief that he was well. 19 Am. and Eng. Ency. Law (2d ed.) 62. But in Nophsker v. Royal Arcanum the statements were used to show the disease; knowl edge was immaterial as health was warranted. Thus in the Swift Case the declarations were ad missible under the exception to the hearsay rule erroitting the use of statements evidencing a

state of mind. Wigmore, Evidence, §1725 et seq. In the Nophsker case the declarations were ad missible as statements of present physical condi tion. Wigmore, Evidence, §1718 et seq. But by a minority view, prevailing in New York, the statements in the Nophsker case would be ex cluded because not made to a physician. Roche v. Co., 105 N. Y. 294; Wigmore, Evidence, §1719. That such is the law in New York is not at all inconsistent with the Swift case, where a different exception to the hearsay rule was involved. But it shows that the Pennsylvania court failed to dis criminate the two exceptions, and also that the New York law upon which the Pennsylvania court placed reliance was and is squarely against its decision. But in unconsciously repudiating the New York rule, and following the orthodox and more liberal view, judicial intuition seems to have led the Penn sylvania court aright. C. B. Whittier. INSURANCE. (Estoppel — Conduct of Agent.) Iowa. — Another case concerning the extent to which an insurance company is bound by the acts and representations of an agent is that of Kimbro v. New York Life Insurance Company, 108 N. W. 1025. The facts showed that the insured made application through the insurer's local agent, giving him a note for the premium, the policy applied for being of a form or class known as an "accumulation policy," but that the company, moved by something appearing in the application or the medical examiner's report, failed to act immediately on the application and wrote to the medical examiner asking that a closer investiga tion be made as to the applicant's habits respect ing the use of intoxicants. At length the home office decided not to issue the policy applied for, but executed another form of contract known as an " adjustable accumulation policy," insuring the applicant's life subject to the condition that if he died within a specified term of years the com pany's liability should be limited to a certain sum, less than the face of the policy. Such policy, executed in due form, was forwarded to the agent, accompanied by a letter calling his attention to the change and directing him to submit the policy to the applicant with proper explanations. Thereupon the agent wrote the applicant that the policy had arrived and that he would call and deliver it, and in a postscript he added, " I was afraid for a little while owing to a great deal of inspection being made that you might be rejected, but am glad to say that the policy is here." Before maturity of the note, and before acquiring any knowledge of the facts in regard to the policy, the insured died. Three days before the death of the applicant the