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Statement of the case.

ninety days after notice of the death, and due proof of the just claim of the assured.

Upon the trial of the cause the plaintiff offered evidence to prove the contract, and the death of her husband, and also that she had filled up in the presence of the agent of the company and handed to him, who received them without any objection, blank forms which had been furnished by the company, and which were those always used in making proof of death, but offered no evidence as to the contents of those papers. The plaintiff rested, and the defendant moved the court to instruct the jury that on the evidence given the plaintiff could not recover; which instruction the court refused to give, and the defendant excepted. This was the first exception.

The company then gave in evidence this and other papers which the wife had handed to the agent as proof of her right to demand the insurance-money. They contained answers by the wife herself in reference to the questions on the blank form, thus:

“QUESTION. State all the facts regarding cause of death.

“ ANSWER. About the 14th of February, 1867, was taken sick with a severe colic fever; was confined to his house for two days; finally was well enough to attend to business five days succeeding; was again taken sick on the 22d of February, 1867, and from which sickness he died on the 1st of March, 1867.

“QUESTION. How long has he been sick?
ANSWER. In both attacks about ten days.

“QUESTION. Did he die suddenly, or was his disease after an illness of how many months, and weeks, and days' duration ?

“Answer. He died from an acute attack of the congestion of the liver, which produced fever, and from the effects of which he died, to the best of my knowledge and belief.”

Besides the statement of the wife, there were the statements by the physician, Dr. Franklin, who had attended Francisco in his last illuess; and also of an acquaintance, one Mardis. The physician stated that he had prescribed for the deceased occasionally since 1856, and had been his physician principally for the last three or four years; his

Statement of the case.

disease had been indigestion, torpid liver, and colic,” and that he died of “ acute hepatitis." The acquaintance, Mardis, knew “of his being sick for short periods of a day or two, for about eighteen months previous to his death, of cramps in the stomach.”

The company also gave in evidence the application for the policy and the representations therein made, referred to. The answers to the usual questions were given by Mr. Francisco, as agent for his wife. He was asked whether he had ever had liver complaint, whether any disease was suspected, whether he had had at any time disease of the stomach or bowels, whether, during the last seven years, he had any sickness or disease, and if so what were the particulars and what physician had attended him; to all which he answered in the negative.

The defendant then rested. The plaintiff then produced nine witnesses, every one of whom testified that they had known Francisco for longer or shorter terms of time, and. that they had never known him to be at all unwell, or more than very slightly so; and that they considered him a healthy man. Four of these were asked whether they could say that the physician, Dr. Franklin's, statements were not correct, and answered that they could not say so; the other five were not questioned on the point.

The plaintiff rested and the evidence was closed. The defendant then prayed the court to instruct the jury that the evidence was not sufficient to entitle the plaintiff to a verdict. The court refused to grant the instruction, and the defendant excepted. This was the second exception.

The evidence having been sumuned up by counsel, tlie counsel for the defendant offered to the court certain instructions which he desired the court to give to the jury, but the judge refused, saying it was too late to ask instructions, after argument to the jury, to which defendant excepted. This was the third exception.

There was a general rule of the court

“In causes, civil or criminal, tried by a jury, any special charge or instruction asked for by either party must be pre

Argument for the insurance company.

sented to the court, in writing, directly after the close of the evidence, and before any argument is made to the jury, or they will not be considered."

The court instructed the jury that it was for them to determine whether the deceased had had any disease or sickness within the meaning of the term as used in the question answered by him; that he might have had a cold or headache so slight as not to constitute sickuess or disease within the meaning of the question, to which part of the charge the defendant excepted. This was the fourth exception.

The court proceeded to say that the ailment might be so serious as to constitute disease.

The court instructed the jury that it was for them to determine whether the party had been afflicted with any sickness or disease within the proper meaning of those terms, as used in the application; to which part of the charge the defendant excepted. This was the fifth exception.

Verdict and judgment having gone for the plaintiff, the case was brought here on the following assiguments of error:

I. The court erred in refusing the instructions asked as stated in the first and second exceptions.

II. The court erred in refusing to consider the request for instructions after the close of the argument to the jury, as stated in the third exception.

III. The courť erred in charging the jury as stated in the fourth and fifth exceptions.

Messrs. J. M. Carlisle and J. D. McPherson, for the plaintiff in error ; a brief of Messrs. Doyle and Barber being filed on the same side :

As to the first exception. The court allowed the plaintiff to recover on evidence that the defendant had made the agreement declared on, and that the person whose life was assured had died, with further proof that papers, in the form of those used by the company in “proof of the just claim of the assured,” had been prepared and handed to the agent of the defendant.

Argument for the insurance company.

Now, the plaintiff, by the terms of the policy, was bound to furnish, first, “satisfactory evidence of the death of the insured,” and second,“ proof of the just claim of the assured under this policy.” The defendant had offered no proof on the latter point when the instruction was asked and refused. The proofs were correct in form but bad in substance. The company was not bound to return them, or ask an explanation, or suggest a mode of explaining away fatal admissions.*

The instruction was asked after the plaintiff had rested, and it was in the nature of a demurrer to the evidence.

As to the second exception. The preliminary proofs offered by the plaintiff are admissions by her, and they show that the deceased, her agent, had given false answers to the questions contained in the application for the policy. If this was so, then, by the very terms of the policy, there could be no recovery. The questions were in writing, the answers in writing, and the plaintiff's admissions in writing; these writings it was the province of the court to coustrue to the jury.

As to the third exception. The refusal of the judge to consider any instructions asked after argument to the jury was in accordance with a rule of the court, but the right of counsel to submit instructions at any time before the jury leave the box is part of the common law of the land and cannot be taken away by such rule. This is decided by the Supreme Court of California in People v. Williams.t

As to the fourth and fifth exceptions. The charge of the court was erroneous in the particulars excepted to. There was no evidence before the jury tending to show that the disease specified by Dr. Franklin, or the sickness testified to by Mardis, was not in fact sickness or disease. Certain ordinary acquaintances of Francisco's, not one of whom is shown ever to have crossed his threshold, did not witness the specific attacks of sickness and disease spoken of by Franklin and Mardis, and of course knew nothing of them. They did not

* Campbell r. Charter Oak, 10 Allen, 213; Irving v. Excelsior Ins. Co., 1 Bosworth, 514; Kimball v. Hamilton Ins. Co., 8 Id. 495; Washington Marine Ins. Co. v. Herckenrath, 3 Robinson (N. Y.), 325.

† 32 California, 286.

Opinion of the court.

pretend to deny their occurrence. Their testimony proved nothing more than that Francisco's general healib, so far as they knew, was good. When a medical witness says that he has attended a patient for years for a disease which he characterizes as indigestion, torpid liver, and colic, and another witness speaks of the patient as having been subject, for eighteen months or two years prior to his decease, to attacks, lasting a day or two, of cramps in the stomach, and these witnesses are uncontradicted, it is error to intimate to the jury that they are at liberty to find, from the evidence, that there was no disease in the case. Parks v. Ross* rules this. The evidence on the point was all in one direction, but under the intimation of the court the jury disregarded it, and assumed that certain specific attacks of indigestion, colic, torpid liver, and cramps of the stomach, running through a series of years, were of so trivial a character as not to amount to sickness or disease.

Mr. C. W. Kendall, contra.
Mr. Justice STRONG delivered the opinion of the court.

The evidence that preliminary proof of the death of Francisco and of the justice of the claim of the assured were given to the defendants ninety days before the suit was brought was quite sufficient to go to the jury. The proofs were in forms, blanks for which had been furnished by the insurers, and the forms were filled up in the presence of their agent. He received them without objection, and it does not appear that at any time before the trial of the case it was ever suggested to the assured that the proofs were insufficient, either in form or in substance. Clearly, therefore, it was not for the court to instruct the jury that the plaintiff was not entitled to a verdict. It seems to have been the idea of the defendants that the statements of the witnesses by whom the preliminary proofs were made did not establish the justice of the plaintiff's claim. But whether they did or not was a question which the court had no right to determine as a conclusion of law. They furnished, at

* 11 Howard, 373.

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