Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1879-05-03
THE COURTS.
United States Circuit Court.
Before Judge Nelson.

Albert Scheffer, executor, ct al, VS.. The Ma |
tional Life Insurance Company of America.
Continued until the June term of the court.
Minnesota District.
James, Sinclair, administrator, etc:, VS.. the
Phoenix Mutual Life Insurance company.
o. II. Comfort and Smith & Hale for plaintiff;
Allis d Allis for defendant.
This suit is brought to recover on pslicy of
insurance on the life of the plaintiffs intestate
A jury is waived by stipulation on file. The
policy contains this provision, fanny
Of the declarations or statements made in the;
application for this policy upon the faith of
which this policy is issued shall be found in
any respect untrue, y this policy shall
be null and void" In tie application signed
answered is this stipulation, ut is hereby
declared that the above are fair
and true answers to the foregoing questions,
and it is acknowledged and agreed by the I'M
dersigned that this application shall for m the
basis of the contract for insurance.
any suppression of facts :; : shall render
this policy null and void, DC.
The following question mo. 22): Have the
parents, or brothers, or sisters of the party
been afflicted with insanity, or with pulmonary,
scrofulous, or any other constitutional disease,
AoIeuaIaIy ~ LIB coaracter! WAS auSWeleu
mo" The following questions and answers also
pear in the application: Ques.-"Are the pa
parents Of the party dead?" Ans. Father; yes. !"
Ques.-''Cause Of death?'' Ans. do not
know" Ques.-"How many sisters?" Ans.
Two" Ques:-"Of what disease did they
die?' Ans. do not know"
The family and attending, physician testified
| that both the father and sister died from
| lung disease--inf1ammation and liberation of the
lungs, ending in consumption and that he did
| not know whether the disease was of q hered-
itary character or not" From their former
appearance he says, II should think not
It is in evidence that the deceased was at
home when his father and sister died, and
from the more reliable testimony it appears
that he was IA years old At the date of his
fathers death, and that his sisters occurred 8
| year or two later.
1t is urged as a defense that the answers tt
all the above specified questions are untrue
and were known to be SO when the application
was signed.
These answers are declarations and repre-
sensations and the burden of proof is upon thu
defendant to establish this defense. The tes
timony fails to satisfy me that the answers ar
untrue, in fact.
The defendant insists that question numbe
20 is not confined to hereditary diseases. Sucl
| in my opinion is not it's true construction
The last clause qualities and controls the rest
The undoubted object of the question was t.
procure information as to whether insanity
scrofulous and pulmonary diseases had devel
oped in an hereditary form among the relative
of the applicant, ia Blatchford. Rep. pg. i07)
This question then having reference to heridi
tary diseases it must be proved not only tina
the father and sister of the deceased died o
one of the specified diseases, but that it wa
hereditary. The evidence of the attending an
other physicians shows that the disease whic
caused the death of the father and sister
| q n in a
To prove that the assured knew of the caus
of the death of his father and sister, the d.
PENDANT relies upon his presence at home whe
they died. and that other members of the fan
lily knew it. This is strong moral evidenc
undoubtedly, but it is mere conjecture, an
cannot overcome the statement that he did M
know, in the application.
The material allegations of the complain
being admitted or proved, and the defenda1
falling to sustain it's defense, judgment is o
dered for the plaintiff for the amount claimed
with costs. II. r. NELSON, J.