
    The Union Central Life Insurance Co. v. Cheever.
    1. A policy of insurance upon thS life of C. was issued on the joint application of himself and wife, for her sole benefit. In answer to a question iu the application, C. stated that he had had no sickness or disease during the seven years then last past. It was stipulated in the policy that if the statements in the application were not in all respects true, the policy should become void. Held, in an action by the wife upon the policy, the declarations of C., made prior to the application, and tending to show that said statement was, to his knowledge, untrue, are incompetent.
    :2. The court permitted counsel for one of the parties, in argument to the jury, to read and comment upon matter not in evidence, nor relevant to the issue, and which was prejudicial to the opposite party, Held, an irregularity, or abuse of discretion which prevented a fair trial, and for which the verdict should be set aside and a new trial ordered.
    Error to the General Term of the ■ Superior Court of Cincinnati, affirming a judgment at Special Term, in favor of the defendant in error, entered on the verdict, and affirming an ■order denying a motion for a new trial.
    Action upon a policy of life insurance, issued upon the life ■of Charles E. Cheever, by the plaintiff in error for the sole benefit of the defendant in error, wife of said Charles, on November 27, 1872. •
    It was agreed by the parties that the policy was given in place of one for the same amount, issued upon the same terms and conditions, upon the life of said Charles E. Cheever, by the Cincinnati Mutual Life Insurance Company, and dated July 31, 1871, and in consideration in part of the representations made in the application for insurance to the latter company. The ajjplication was signed by both Charles E. Cheever and his wife. The policies of both companies contained, among-others, the following clauses. *
    
      “ This Policy is issued and accepted by the insured upon, the express conditions and agreements contained upon the back hereof, which are to be used and referred to in order to explain the rights and obligations of -the parties hereto, in all. cases not herein specially provided for.”
    Among the conditions were—
    “ 1st. That the statements and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any facts relating to the health or circumstances of the insured, affecting the interests of said company.
    “8th. That in case of violation of the foregoing conditions, or any of them, this policy' shall become void.”
    The defense relied on was intentional misrepresentation and concealment, by Cheever, in answer to the following question, contained in the application for insurance by the Cincinnati Mutual, of the date of July 28, 1871: “Have you had, during-the last seven years, any sickness or disease ? If so, state the particulars, and the name of the physician or physicians who. prescribed or were consulted.” Answer, “No.”
    The reply denied that the answer to said question was untrue. It appears from the pleadings, and a bill of exceptions, containing all the testimony, that the said Cheever died on March 23, 1874; that in the year 1870 there appeared upon his neck a tumor or sore, which, prior to July 28, 1871, the date of the application, had been examined and treated by-several physicians, some of whom were of the opinion that it. was a cancer, while others pronounced it an innocent growth, or glandular affection, of a character that would readily yield to treatment, leaving no permanent injurious effect. Among the physicians who pronounced the tumor to be a malignant cancer was Dr. Gratigny, who, among other things, testified as follows:
    
      “ I have been practicing medicine and surgery in this city for about thirteen years. I devote my time and labors to the-treatment of cancers, tumors, and scrofulous diseases, as a specialty. I knew Charles E. Cheever; he came to me for-treatment on the 18th day of August, a. d., 1870. He had an open tumor on the left side of the neck below the ear; it-was malignant; by malignant, I mean that it was a cancer. I treated him for about six consecutive weeks, commencing August 18; I gave him medicines, and removed the cancer by means of outward applications, so that the diseased structure was separated from the healthy tissue, and wholly removed. This removal was effected in about three weeks; I saw him every d'ay during that time. It was of the species known aseucephaloid cancer; when the diseased parts were removed from the sound or healthy parts, it left a healthy granulating surface, which soon healed up, leaving a natural surface and a, healthy scar; when he left me he was well.”
    The witness testified that a paper shown him, of which the-following is a copy, was in the handwriting of Charles E.. Cheever, and was delivered to him by Cheever.
    “ Cint’i, Jany 1st, 1870.
    
      “ Dr. L. H. Qratigm/:
    
    “ Dear Sir : — About one year ago a lump or swelling commenced coming on the left side of my neck. At first I paid no attention to it, but as it kept increasing, I applied to my physician, who gave me outward applications first and after-wards operated on it, which done no good. After being under his charge for some time and growing worse daily, I changed physicians and tried sei^ral, but to no use. At a consultation held on my case last summer, my complaint was pronounced cancer, and I was told that I could not be cured, and that my time here was getting short. By accident hearing of you and. of some remarkable cures you had made, I called on you — you gave me some encouragement, and after visiting, myself, some-of your old patients, I commenced with you on the 18th of last August. I am happy to say, that in 7 weeks from that date, my neck was entirely healéd up sound and well (something my former physicians said couldn’t be done), and I am now strong, hearty, and never felt better in my life. From all indications, •I am entirely well, and think it my duty to you and to all •others afflicted, to give you the above plain statement of facts. You are at perfect liberty to use the above in any manner you see fit, and to refer all afflicted in a similar manner to me. My place of business is 228 and 230 Main street, and can refer you to most of the principal business men in this city.
    “ Charles E. Cheever.
    
      “ Chas. E. Cheever,
    No. 228 and 230 Main St.,
    Dec. 31, ’70.”
    This letter was offered in evidence by the company, and on the objection of the plaintiff below was excluded, the defend.ant excepting.
    The witness further testified, that a letter handed him, signed Job S. Haworth, dated Lewis, Cass county, Iowa, July 12, 1871, was delivered to him by Charles E. Cheever, and that the words in pencil, at the bottom of it, are in his handwriting ; the words in pencil are: “ Sent him one of your books and wrote him. Charlie.”
    This letter was as follows :
    “ Lewis, Cáss Co., Iowa, July 12, ’71.
    “ Mr. Oheever:
    
    “ Sir : — I am agoing to write you a line Concerning One Doctor Gratigna Curing Cancer I see a Statement1 in the Times as having cured One Charles E Chever of Cancer & as I am supposed to have Cancer One my Nose„I thought I would try find out the certainty of the case
    “ I want you to Answer & give me the facts in the ease if you Please & Oblige Yours Job S Haworth
    
      “ direct to .Lewis Cass Co Iowa ”
    
      “ Sent him one of your books & wrote him
    “ Charlie
    “Job. S. Hayworth, Lewis Iowa To Charley Cheaver answered July 15 1871.”
    This letter was also offered by the defendant below, and excluded by the court. The book mentioned in the note at. the bottom of this letter,' contained, among other things, a printed copy of the letter of the insured to the witness.
    N. "W. Harris was called, and testified that he was the secretary and general manager of the defendant below, and had been since 1867; and that a book shown him, containing eight, pages, was prepared by him and issued to the agents of the company.
    The plaintiff below then offered the book in evidence, but upon objection withdrew the offer. In the argument of the case to the jury, counsel for the plaintiff was permitted in “ illustration of his argument, ” and over the exception of the defendant, to read and comment upon the matter contained in said book. The following js an example of its contents.
    “ QUALITIES OR A GOOD AGENT.
    “ The public generally forms its opinion of a life insurance company by its acquaintance with its agents. The good agent appreciates this fact; and, also, that men will judge of the whole system of life insurance by him. He has high ideas of his work. He looks upon it as benefiting the party assured by giving to him quiet of mind; by inducing habits of economy, sobriety, and forethought; by setting before him an honorable motive to action and enterprise; and by leading him to the discharge of a sacred duty. He considers that his efforts are helping to rid the community of poverty and its frequent attendants, vice and crime; and also, that he is strengthening the sinews of social life by every policy he obtains ; and, what is more, that he is befriending the poor and needy, wiping sorrow from eyes dimmed with tears, and deserving the tribute of gratitute awarded to one of old: ‘When the ear heard me, then it blessed me ; and when the eye saw me, it gave witness to me; because I delivered the poor that cried, and the fatherless, and him that had none to help him. The blessing • of him that was ready to perish came upon me, and I caused the widow’s heart to sing for joy.’
    “Agents should cultivate the acquaintance of the clergy, ■ and, by every suitable means, endeavor to secure their inhu•ence. In most cases a minister will give a note of introduction, or a general letter, commendatory of the agent and the •company. Often, too, a pastor will furnish a list of the members of his parish who are most likely to insure. It is of great importance to effect an insurance upon the minister’s life. If .you are associated with Sunday-schools, churches, or any other •organization, avail yourself of the acquaintance it will give .you. _
    _ “ When a death occurs in a community, especially if the party be assured, and where it is of great advantage to the sur'viving members of a family, particulars may be profitably obtained, and the circumstances commented upon. Perhaps 'the relatives and fr.ends may be induced to insure. Yery few communities do not furnish examples where a life-policy upon •a deceased parent wquld have been a god-send to the afflicted household. It is not only proper to refer to such cases, but an ■agent is not fulfilling his duty if he does not interpret and apply such providences as a warning against the neglect of life .insurance. Sudden death gives especial point to such appeals.”
    Whether Oheever died of a recurrence of the ailment which Dr. Gratigny treated, or of a new disease, was a point of much •conflict in the testimony given at the trial.
    
      Matthews, Ramsey (& Matthews, for plaintiff in error:
    1. The Haw'ortli letter and the note by Oheever at the bottom thereof, was offered solely to show that Oheever, prior to the application for insurance, knew that he was diseased, and for that purpose it was competent evidence. 1 Greenl. §§ 98-103, inclusive, and authorities cited ; Best on Ev. § 495, and •authorities cited; Swift v. Ins. Co., 63 N. Y. 186.
    2. The permission b.y the court to coimsel for plaintiff, to read to the jury from the company’s book to its agents, and comment thereon, was error. Koelges v. Ins. Co., 4 Big. 266; s. c., 57 N. Y. 638; Legg v. Drake, 1 Ohio St. 246; Coster v. Merest, 3 Brod. & Bing. 272; Coble v. Coble, 79 N. C. 589; State v. Underwood, 77 N. C. 502; Winter v. Sass, 19 Kans. 556; Wightman v. Providence, 1 Cliff. 524 ; Fry v. Bennett, 3 Bosw. 200.
    
      E. 8. Throop, G. D. Robertson and I. M. Jordan, for defendant in error.
   Boynton, J.

As the case will go back for a new trial we .have deemed it necessary to consider only two assignments of •error.

1. Did the court err in rejecting the letter given to Dr; Gratigny by Charles E. Cheever, and the letter of Job S. Haworth with Cheever’s memorandum thereon? Although fhe letter of Cheever bears the date of January 1, 1870, it evidently was written January 1, 1871, as Cheever’s address at the foot of the letter bears the date of December 31,1870, and the case shows that Dr. Gratigny was not consulted prior to August of that year. There is no doubt that the letter and memorandum, if admissible, tended to prove that Cheever had had “ sickness and disease ” during the seven years prior to July •31, 1871, the date at which the insurance was effected, and for which he had received medical treatment from several physicians. But the testimony, we think, was incompetent. The insurance was, in terms, effected for the sole benefit of the jplaintiff below. The testimony rejected consisted of declarations of Charles E. Cheever, made, it is true, prior to the time the insurance was effected, but not under circumstances at all .affecting the rights subsequently acquired, under the policy, hy the plaintiff below. When the letter was written, or the memorandum made, Cheever could not have been acting as her ■agent. They were not the declarations of a sick person in relation to his present condition, as they related to a state of facts already past. Fraternal Mutual Ins. Co. v. Applegate, 7 Ohio St. 297. They were not a part of the res gestae of, any act or fact, then transpiring, which they tended to characterize or explain. Swift v. Massachusetts M. L. Ins. Co., 63 N. Y. 186, They neither accompanied nor were explanatory of an act performed by Cheever. Hence, as respects the rights of the wife, they were the -declarations of a stranger. There is no doubt that where evidence of an act doné by a party is admissible, his declarations made at the time, explanatory of the act and tending to elucidate it, are also admissible as a part of the res gestas. Rut it is only where some act is itself relevant and material, and to which the declarations relate, and which they tend to explain, that they become competent. Morrill v. Foster, 32 N. H. 358. The effect of the declarations offered was, that Cheever, formerly, and about a year before, had been sick of cancer, and was cured by Dr. Gratigny. This was but a naked declaration concerning a past transaction or fact, and wholly unavailing to bind or affect any one except the declarant himself. Granting this, counsel fbr the plaintiff in error contend that such declarations were admissible to prove that at the time the application was made, Cheever knew that the representations were false, and therefore fraudulent. But it is quite immaterial whether he was or was not aware that the representations were false. The parties to the policy stipulated, that if the representations, or any of them, were untrue, the policy should be void, and the court gave to the company, in its instruction to the jury, the full benefit of this stipulation. Ætna Life Ins. Co. v. France, 91 U. S. 510. Knowledge of the falsity of the representations being an immaterial'faet, there was no error in rejecting the testimony offered to show it.

But we are of the opinion that the permission to counsel for the plaintiff below, against the objection of the defendant, to read to the jury and comment thereon, the pamphlet prepared by the secretary of the company for use by its agents, was an abuse of discretion preventing a fair trial. It had been offered in evidence, and, upon objection, withdrawn. It was permitted to be read by counsel to illustrate his argument.” It will be noticed that it was not even prepared by the company which issued the policy on the application alleged to contain the false answers to the questions relating to the prior sickness of the subject insured. It, therefore, could have had no influence upon the conduct of the agents of the company to which the application was made.

In Legg v. Drake, 1 Ohio St. 287, it was held, that counsel had the right by way of argument or illustration to read a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, because, as was there stated, it would make no difference whether repeated by counsel from recollection, or read from a book; but that it would he an abuse of privilege to make the right thus to do, the pretense of getting improper matter before the jury.

To the rule there stated we fully adhere. The matter read or stated should be pertinent to the subject of inquiry, and so far calculated to elucidate it, as to aid the jury in a better understanding of the evidence produced at the trial. The matter read to the jury and commented on in the caso before us was not of this character. The question in issue related wholly to the truth or falsity of the statements of the subject insured, contained in the application respecting his previous condition of health. The matter contained in the pamphlet had no possible bearing upon that subject. It was filled with directions and suggestions, well calculated to excite prejudice against a company resorting to such methods to secure additions to its policy-holders, and4 to draw the minds of the jury away from the matter in dispute, and subject them to influences entirely foreign to the case. It contained not a word, tending to show whether Cheever had been sick or diseased during the seven years prior to the application for insurance, which was the sole question under investigation.

In the selection of jurors care is not only taken to obtain persons entirely impartial, and free from any bias resulting from previously-formed opinions, but the law carefully guards them, during the progress of the tidal, from the approach of the least improper influences which are calculated to affect their judgment. They are sworn in all cases to try the issue joined, and to render a true verdict, according to the law and the evidence given in the case. The law has established well-defined rules determining the admissibility of evidence, one of which is that the evidence offered must correspond with the allegations, and be confined to the point in issue. All hearsay evidence is excluded. The jury must receive the evidence from witnesses under oath; it being the right of the party prosecuting or defending, to have the trial conducted according to the established usage of the common law. If a juror possesses personal knowledge of a fact pertinent to the issue, he must bo sworn as a witness, before any benefit can be derived to either p'arty by the knowledge thus possessed. These are some of the safeguards the law throws around the rights of parties litigant, while undergoing judicial inquiry ; and it is easy to see that they would be of little avail, if, during the progress of the trial, and with the sanction of the court, their effect could be destroyed or evaded by the latitude of speech or comment which the law accords to counsel.- Facts, of which no proof is offered and no presumption arises, are legally outside of the case, and cannot be brought -before the jury under any pretense whatever. This is held by numerous cases besides those cited in argument. Tucker v. Henniker, 41 N. H. 317; Rolfe v. Rumford, 66 Me. 564; Berry v. The State, 10 Geo. 511 ; Dickerson v. Burke, 25 Geo. 225; Koelges v. Guardian, Life Ins. Co., 57 N. Y. 638.

In Baim, v. Wilson, 10 Ohio St. 14, it was held to be error for the court to base a charge b to the jury on a state of facts purely conjectural, and as to which it affirmatively appears, no evidence was given at-the trial. In the course of the opinion, it was said that “ the judge must confine himself in his remarks-to the law and evidence in the case. So far from being under any obligation to call the attention of the jury to a conjectural state of facts, it would be highly improj)er for him to do so.” See also, Walker v. Stetson, 14 Ohio St. 90. The reason of this rule is very obvious, and is thus stated : “ Jurors are constantly inclined to look to the opinion of the judge for instruction as to what is, and what is not evidence; when he tells them to determine a given problem from the evidence before them, they can hardly do otherwise than infer that, in his judgment, there is evidence upon which their verdict, when given, may rest.” Ibid.

It is but another application of the same process of reasoning, to say, that when the court below permitted counsel for the plaintiff to read and comment upon the pamphlet of instructions to agents, issued by the defendant, that the jury might justly ■ infer that the court was of the opinion that the matter thus read .and commented on, might properly affect their verdict. The testimony given respecting the disease of which Oheever died, wasi more or less conflicting. Some of the medical witnesses were of the opinion that he died of a recurrence of the .alleged ean- ■ cerous ailment- treated by Dr. Gratigny, while others were of the opinion that death was caused from a distinct and independent disease, originating after the policy took effect, and that the sore or tumor upon the neck did not amount to sickness or disease, as those terms are commonly understood. In view of this conflict in the testimony, we do not see how the reading of the pamphlet to the jury could be otherwise than prejudicial to the defendant to the extent of preventing a fair ••trial.

Judgment reversed, <md a new tried ordered.  