THIRD DEPARTMENT, SEPTEMBER TERM, 1880.

JOHN ROHRBACH, APPELLANT, v. THE GERMANIA FIRE INSURANCE COMPANY, RESPONDENT.

Order affirmed, with $10 costs, and disbursements and printing.

STEWART WILSON, RESPONDENT, v. MICHAEL DONAHUE, APPELLANT.

Judgment affirmed, with costs.

Cases

DETERMINED IN THE

FOURTH DEPARTMENT,

AT

GENERAL TERM,

October, 1880.

JAMES D. FERGUSON, RESPONDENT, V. THE MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Ap

PELLANT.

Former judgment—when it does not bar a second action-How far the receipt of premiums, with knowledge of certain facts, estops the company from setting up such facts as a defense.

January 28, 1870, the defendant issued to the plaintiff a policy insuring the life of plaintiff's brother, in the sum of $5,000. In 1871, the company commenced an action to have the said policy canceled and declared void, on the ground that it was procured by false and fraudulent statements made by the present plaintiff in his application therefor. The complaint therein did not question the plaintiff's insurable interest in the life of his brother, and no issue in regard thereto was made in the action, but the answer and the judgment, subsequently entered therein in favor of the then defendant, the present plaintiff, recited, that he was interested in his brother's life by reason of a debt owing from the latter to him. In this action, brought by the plaintiff, upon the policy, after his brother's death, the defendant alleged in its answer that his brother was not indebted to the plaintiff at the time of the issuing of the policy or at any time thereafter, and that the plaintiff had no insurable interest in his brother's life, and also set up several false and fraudulent representations contained in the application for the policy and certain breaches of warranty, as defenses to the action.

[320]

FOURTH DEPARTMENT, OCTOBER TERM, 1880.

Held, that the judgment rendered against it in the former action, did not prevent the defendant from proving the defenses of a want of insurable interest and of breaches of warranty set up in its answer to this action. Quare, as to whether the fact that the defendant had received premiums upon the policy, with knowledge of the facts which it now sought to set up as defenses to the action, would prevent it from so doing.

APPEAL from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the judge before whom the action was tried.

Spiggs & Mathews, for the appellant.

William Kernan, for the respondent.

TALCOTT, P. J.:

This is an action on a policy of life insurance, issued by the defendant, through its general agent, at Utica, on January 28, 1870. The defendant in its answer sets up several false and fraudulent representations, made to the defendant in obtaining the policy, and also separately sets up certain breaches of warranty as a defense to the action.

The policy of insurance was upon the life of Amos S. Ferguson, the brother of the plaintiff, and was obtained upon the declaration of the plaintiff, that he had an interest in the life of the said Amos S. Ferguson to the full amount of the policy, to wit, the sum of $5,000.

The complaint averred that at the time the policy was made and delivered, the said Amos was indebted to the plaintiff in the sum of $5,000, and upward, and that he was so indebted at the time of his death.

The defendant in its answer averred that Amos was not at the time of issuing, or at any time thereafter, indebted to the plaintiff in any amount whatever, and that the plaintiff had no insurable interest in the life of said Amos S., which fact was well known to the plaintiff and was fraudulently concealed from the defendant; and the defendant insists that by reason of such fact the said declaration and the policy were untrue and fraudulent as against the HUN.-VOL. XXII.

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FOURTH DEPARTMENT, OCTOBER TERM, 1880.

defendant, and were and are wholly inoperative and void as against it.

The plaintiff specially replied to the answer, amongst other things, that in the year 1871 the company commenced an action against him, the plaintiff, in the Supreme Court, Oneida county, to have declared void, delivered up and canceled the said policy of insurance, "upon the grounds and for the reasons substantially set up in the defendant's answer in this action, that the said policy was and is void." That an issue was joined in said action and was duly tried on the merits at a Special Term, in January, 1873, and the same was subsequently decided by the court, and the decision in writing duly filed on June 21, 1873, "wherein and whereby it was adjudged and declared that the said policy of insurance was not void for the reasons alleged in the complaint in said action, or for any reason, and that the same was valid, and the said complaint in said action was dismissed with costs, and the said judgment has since stood and does now stand in full force and virtue."

After the plaintiff had rested on the trial without having given any evidence tending to show that the plaintiff had any insurable interest in the life of the said Amos, at the time of the issuing of the policy or at any time afterwards, the defendant's counsel moved for a nonsuit, on the ground that the plaintiff had proved no cause of action, and that he had not proved any insurable interest in the life of Amos S. Ferguson, which motion was denied, and the defendant excepted to the ruling.

But at the close of the opening for the defense, the counsel for the plaintiff offered in evidence the judgment roll in the former action, which was objected to by the defendant, but admitted. From the judgment roll it appeared that the company in that suit alleged that the now plaintiff, intending to cheat and defraud the now defendant of the moneys therein specified, made an application to the now defendant to insure the life of one Amos Ferguson for $5,000, and for the sole benefit and advantage of the noTM plaintiff, and that, to induce the now defendant to accept such risk and to issue such policy, the said James D. Ferguson presented to the company a declaration or statement subscribed by him in relation to the health, habits and occupation of the said Amos S.,

FOURTH DEPARTMENT, OCTOBER TERM, 1880.

falsely stating and representing among other things that the said Amos was then in good health, and usually enjoyed good health, and that the said Amos never had disease of the heart or other discase to injure his health; and also presented a physician's certificate to the same effect, but that the said representations were false and fraudulent, &c.; and that the company, misled by such misrepresentations, issued the policy; and that by reason of the premises the policy was and is fraudulent and void, and ought to be surrendered up to the plaintiff and canceled; and demanded relief, and a judgment that the said policy of insurance was obtained by fraud and misrepresentations, and was and is fraudulent and void; and that the now plaintiff be adjudged and directed to deliver up the same to be canceled, and for such other relief as may be just.

There was not a word in the complaint in the former action, drawing in question the insurable interest of the plaintiff in this suit. But in the answer in that suit the now plaintiff states by way of recital, that "Amos S. Ferguson, mentioned in the said complaint being indebted to this defendant, and thereby this defendant being interested in his life, this defendant made application to the said plaintiff for an insurance on the life of the said Amos S. Ferguson, to the amount of $5,000, for the benefit of the said defendant as a creditor of the said Amos S. Ferguson," &c. And the trial judge in his findings, finds among his conclusions of facts, by way of recital also, "That on or about the 21st day of January, A. D., 1870, the defendant then being a creditor of one Amos S. Ferguson, to the amount of over $5,000, applied," &c. But there was no issue whatever in that suit upon the question of Amos S. Ferguson's indebtedness to the now plaintiff, or upon the insurable interest of the now plaintiff in the life of the said Amos S.

The evidence given in the former action does not appear. The replication of the plaintiff to the answer of the defendant in this suit avers, that it was adjudged and decreed in the former suit, "that the said policy of insurance was not void for the reason alleged in the complaint in said action, or for any reason, and that the same was valid."

This is a misapprehension of the form of the former judginent