FLETCHER V. NEW YORK LIFE INS. CO.
holder thereof. It is urged that the defendant, to avail himself of the defence that the note was not delivered, because the conditions of the agreement were not completed, should have so pleaded, and under his answer, as cited above, cannot avail himself of such defence. This may be true as a general rule, but in this case the plaintiff, to sustain his right to recover, showed the note in the actual possession of a stranger to the controversy, and to account for such possession was compelled to prove how he obtained it. This opened the whole transaction, and the defence that there was no consideration and no delivery of the note to the plaintiff, for the reason that the condition of the contract had not been completed, was properly urged by the defendant, and the contract itself was competent evidence. Folsum was not the plaintiff's agent. He held both the note and the deed in escrow; but, if the evidence had proved the deposit of a deed for the land described in the contract with Folsum, the latter could not prevent a recovery by the plaintiff, notwithstanding the note was in Folsum's possession, and he had failed or refused to deliver it. The law would in that case recognize Folsum as the agent of the plaintiff from the time the deed, in proper form, was executed and placed where the parties agr that it should be. As no deed in proper form e of the land described in the contract was deposited with Folsum, as agreed upon, the plaintiff has failed to prove his right to recover, and the defendant is entitled to judgment, and it is so ordered.
FLETCHER V. NEW YORK LIFE
(Uircuit COU1·t, E. D. Missouri.
INSURANCE-ApPLICANT MUST ACT IN GOOD FAITH.
A party applying for insumnce is bound to answer questions concerning facts material to the risk truthfully. 2.
ApPLICATION-PRESUMPTION AS TO KNOWJ,EDGE OF CONTENTS.
Everyone who signs an application for insurance is presumed to know its contents. S.
SAME-RuLE WHERE IT CONTAINS ANSWERS.
Where the application for insurance contains false answers concerning facts material to the risk, no suit can be maintained upon the policy issued to the applicant, unless it can be shown that the applicant's answers were true; that the false answers were inserted by an agent of the insurance company without the applicant's knowledge; and that the applicant signed the application under the impression that it contained his answers as given.
Esq., of the St. Lonisbar.
SAME-BURDEN OF PROOF.
In such cases the burden of proving that the answers actually made by the applicant were true, and that he signed the application under the impression that they had been correctly reduced to writing, is upon the party seeking to enforce'the policy.
Suit on a policy of insurance upon the life of C. S. Alford, deceased, by his executor, Thomas C. Fletcher, for $10,000, and interest. The defendant alleged in his answer, and it was proved on the trial, that said assured made a written application for insurance upon his life, and that a copy of the application was attached to and made a. part of said policy when it was issued; that said application was signed, and contained the following questions and answers, viz.:
.. Has the party [meaning said Alford] had or been afflicted since childhood with any of the following complaints?" mentioning, among others, "diseases, of the ... ... ... kidneys:' Answer. "No." "Name and residence of person's [meaning said Alford's] usual medical attendant. On what occasions and for what diseases have you required his. attendance and advice?" Answer. "Has llone."
Both of which answers defendant alleges to have been false, and avers that said Alford had previously been afflicted with diabetes, and had a usual medical attendant, who had attended him on sundry oces,sions and treated him for serious diseases. The plaintiff, in reply, alleged that the application referred to in the answer was not written by said Alford, but by l:lI certain agent of the defendant, who induced Alford to make it, and that the answers were written in said application by said agent to suit himself, and not as eaid Alford made them, and that the answers made by Alford were true; that Alford's signatures were not attached to the application as a verification of the answers therein, but at the request of said agent were signed and affixed to said paper to identify the same, and the person to whose use and benefit the policy was to issue, and that the original paper, of which a copy purports to' be attached to said policy, is not said Alford's act and deed. 1.'he case was tried before a jury. The plaintiff introduced evidence at the trial tending to show that said Alford did not give the answers contained in said application, but, when asked if he had had any disell,se of the kidneys, answered that he had had diabetes; and when asked as to his usual med. ical attendant, etc., had answered truthfully, and referred the agent who propounded the questions and wrote down the answers to his family physician, and told him to inquire of said physician, and
that he would give him full particulars, and had signed the application supposing that his answers had been correctly reduced to writing. Carr it Reynolds, for plaintiff. Overall, Judson it Tutt, for defendant. TREAT, D. J., (charging jury.) Contracts of insurance are contracts of public good faith. In other words, a party applying to an insurance company must state truthfully the matters on which the risk is based, so that the company may determine whether it will undertake the risk or not. On the other hand, the company, when it does take a risk on the facts correctly stated to it, if a loss occurs, must pay the loss. You will, therefore, consider, in all controversies between an insurance company and the party assured, that you are dealing honestly and fairly, according to the terms of these conttacts. In these insurance contracts, as in all other contracts, persons are held to the obligations which they assume in regard to that. Whether it be a corporation on the one side, or a private individual or natural person on the other, the same rule must prevail. But when a supposed contract has been entered into between two parties, whether natural persons or corporations, and there is an element connected therewith, as of fraud, whether the contract should not be held either obligatory originally, or be avoided,-fraudulent questions entering into it,-juries have to determine that matter. Therefore, I take it for granted, in this case, you will deal between this corporation on the one side, and the representatives of the deceased on the other, just as if the contract were between two natural persons. It having been admitted that the deceased died of diabetes, and that he had at the date of the application said disease, and had previously had said disease, and it being also admitted that he had a usual medical attendant, who had treated the deceased for said disease, and that his answers to the qnestions were material to the risk, there is for the consideration of the jury the determination only of this essential fact, the burden of proving which is on the plaintiff, viz., whether the deceased (Alford) ever answered the questions presented written down in the application, which answers, as so written down, are admitted to be false and material. Everyone who signs a document, like the application in this case, is presumed to know what he signed, and is to be held thereto, unless he can show, by competent evidence, that he answered the questions truthfully, and not as written down, and signed the application believing that the truthful answers made by him were correctly writ-
ten, a.nd contained in the application by him signed. Therefore, the plaintiff is not entitled to recover, unless he has proved that the signature of Alford to the application was obtained from him on the belief that he (Alford) was signing a written statement which contained the truthful answers which he had really made to the question put to him, which answers were falsely written down unknown to him (Alford) when he attached his signature to the application. If the plaintiff recovers, the verdict must be for $10,000, with interest at the rate of 6 per cent. from the date of proof, submitted say from February 10, 1881. If, therefore, the signature of Alford was obtained, as stated, with. out knowledge on his part that his answers were falsely recorded, the plaintiff is entitled to recover; but, on the other hand, .if his signature was not thus fraudulently procured, the verdict must be for the defendant. Verdict for plaintiff for $10,000, with interest at the rate of 6 per cent. from February 10, 1881.
PRESIDENT & DIRECTORS OF THE
OF NO'RTH AMERICA
LOUIS, IRON MOUNTAIN
(Ci1'cuit Court, E.
CARRmR-FREIGHT-Loss BY NEGLIGENCE.
Although the shipment of cotton in open flat cars may not be in itself such negligence as would make the carrier liable under all contingencies, yet, when such shipment is made, there is devolved on the carrier the duty to take·additional precautions for the protection and safety of the cotton,
Trial by the Court without a Jury. Three cases were brought by the plaintiff, an Insurance company, the defendant, a railway company, to recover damages for loss of cotton while in charge of defendant, as carrier, while being transported over its line on open flat cars. The insurance company had been subrogated to the rights of the several consignees by payment of their claims under their policiea of inl:iurance. Robert Harrison, for plaintiff. Portis If; Pike, for defendant.