Simon v. New York Life Insurance
Simon v. New York Life Insurance
Opinion of the Court
Opinion by
.The policy of insurance sued on does not contain an absolute and unqualified obligation to pay a fixed and definite sum of money on the death of the insured. The policy issued in 1911. It was based on a written application made by the insured in which he declared that the date of his birth was 25th February, 1855, and that his age on his nearest birthday was or would be fifty-six years. The defendant company adopted that statement as true and declared in the policy itself that it was issued to the insured whose age was fifty-six years.
Now, the policy contained this qualification of the primary covenant to pay with which it begins: “If the age of the insured has been misstated the amount payable hereunder shall be such as the premium paid would have purchased at the correct age rated-up by seven years.” In order, therefore, to determine the 'true amount of the defendant’s obligation upon the death of the insured it became necessary to ascertain what his age was at the time the policy issued. He died in 1915. The company not denying its liability to pay the real sum due, measured by the terms of the policy, contended by way of defense that the insured had materially misstated his age at the time he applied for the policy and that as a consequence, at the date of his death, he was not merely sixty years of age or thereabouts but was, in fact, seventy-four years of age. By reason of this alleged fact it would therefore be indebted to him, or his beneficiary, in a very much smaller sum than that which was claimed. As this sum was promptly paid, it disappears from the controversy. Evidence was admitted at the trial tending to show that the actual age of the deceased was about what the insurance company claimed it to be. In the course of the trial the defendant offered, an exemplification of the 'record of a certain proceeding in the Court of Quarter Sessions of Lawrence County, which contained, inter alia, an affidavit made by the assured himself in 1908 that he was not born in 1855 and
We may agree with the learned judge below the declaration of the deceased, made in 1908, was not a declaration against interest because it was made several years before he had entered into the contract of insurance which is the subject-matter of this controversy. Does it follow as a consequence from that statement that the declaration must necessarily have been rejected on all grounds?" Declarations against interest form but a single class of the larger family of declarations which £ave long been regarded as valuable evidence, even though they constitute exceptions to' the rule which rejects evidence originating in hearsay. Declarations of proper parties concerning pedigree, family relationship, dates of birth, marriage and death and the like have long been considered in this State as within the exception to the rule. Whilst there are jurisdictions which confine the exceptions, generally classed under the expression “Pedigree,” to those involving only matters of descent and relationship, the courts generally and, our own among them, have given a wider and more liberal interpretation to the term. The declaration of a man as . to the date of his birth and, consequently, as to his age at a given time should, in reason, have the same effect as his like declarations on the identity of his father and
The evidence furnished by the rejected affidavit surely would have been relevant and material to the issue on trial. It belonged to that class of declarations to the admission of which the objection of “hearsay” cannot
The judgment is reversed and a venire facias de novo awarded.
Reference
- Full Case Name
- Simon v. New York Life Insurance Company
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- 5 cases
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- Syllabus
- Insurance — Life insurance — Misstatement as to age — Evidence— Sworn statement in judicial proceedings — Pedigree—Words and phrases — Declaration against interest. The term “pedigree” embraces not only descent and relationship, but also the facts of birth, marriage and death and the time when these events happened. The declaration of a man as to the date of his birth, and, consequently, as to his age at a given time should, in reason, have the same effect as his like declarations on the identity of his father and mother, or his relationship to any given person. In an action upon a life insurance policy where the company defends on the ground that the insured had materially misstated his age at the time he applied for the policy, it is proper to admit in evidence the record of a suit instituted by the insured three years before he applied for the policy against a son for support, in which he swore to a statement as to his age which would have made him seventy-four years of age at the time he applied for the policy, instead of fifty-six years, the age which he set out in his application for the policy. Such evidence should not be rejected because it is not a declaration against interest.