
    CATHARINE JACOBS vs. THE NATIONAL LIFE-INSURANCE COMPANY OF THE UNITED STATES OF AMERICA.
    At Law.
    No. 10849.
    I. A declaration bn a policy of lifer-insurance stated the consideration to he the payment of premiums .quarterly. The policy proved at the trial was expressed to he in consideration of said premiums, an,d of the statements and declarations made in the application for the policy. Held, that the variance was not material.
    II. The application presented to the company, when the insurance was effected, is no part of the plaintiff’s course of action, and need not be set forth in the declaration.
    III. It is eompetent for a life-insuranee company to waive forfeitures, so as to give renewed effect to a life-insurance, where the premium has not heen paid at the time it was due; and a stipulation in a lifer policy that it shall cease and determine if any subsequent premium shall not be paid when diie, is waived by the act of the company in receiving and retaining the premium after that time.
    IV. A witness was permitted to testify what the insured told him, where the door was opened to its introduction by the cross-examination of the witness on the other side.
    V. A condition in a policy of life-insurance that it is to become null and ’ void in case the insured shall die by his own hand or act, voluntarily “ or otherwise,” the use of the latter word is too vague and intangible to admit of practical application, and the court will not undertake to enforce a provision so uncertain.
    STATEMENT OE THE CASE.
    Action on a policy of life-insurance for $5,000, issued by tbe defendant to the plaintiff, on the life of her son, Edward N. Jacobs, and bearing date on the 27th day of November, 1871. The only consideration stated in the declaration for the contract is the payment by plaintiff to defendant, quarterly, of the sum of fifty-seven dollars and forty cents. It is also alleged that the said Edward N. Jacobs died on or about the 19th day of January, 1873, while the said policy was in full force; and that proof of such death was furnished to defendant, and that sixty days have expired, and defendant refuses to pay.
    The defendant pleaded that it never was indebted: and that it did not promise as alleged in the declaration. The third plea is in these words:
    “And the defendant says that, by the terms of the policy of insurance in the declaration in this case mentioned, the same was to become null and void, and the defendant was not to be liable for the sum insured by said policy, in case the person whose life was insured by said policy, to wit, Edward N. Jacobs, should die by his own hand or act, voluntarily or otherwise; and the defendant says that said Edward N. Jacobs did die by his own hand and act, whereby said policy became null and void. And this the defendant is ready to verify; wherefore it prays judgment whether it ought to be charged with the plaintiff’s demand.”
    Upon the trial of the cause the plaintiff offered in evidence the policy of insurance, which is expressed to be made “ in consideration of the representations and declarations made to it (the defendant) in the application therefor, and of the sum of fifty-seven dollars and forty cents * * and the quarterly annual payment of a like amount on or before the 27th days of November, February, May, and August.”
    To the introduction of said policy in evidence the defendant’s counsel objected on the ground that there was a variance between the policy offered and the one described in the declaration, in respect to the consideration of the contract declared on, which is stated to be the payment of certain premiums; whereas the consideration of the policy offered in the evidence consists of the representations and declarations made to the defendant in the application therefor, as well as of the premiums. It is contended that the whole of the consideration should have been stated in the declaration. The objection was overruled, and the policy given in evidence to the jury. This is the subject of the first exception.
    The policy of insurance, thus admitted in evidence, contained, among other matters, the following provisions :
    “ This policy, issued by the company and accepted by the insured and the holder thereof, on the following express conditions and agreements:
    
      “ 1st. That the statements and declarations made in the application for this policy, (which application is hereby made a part of this contract,) and on faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health, habits, or circumstances of the person insured, affecting the interests of said company.” * * *
    “ 5th. That in case of the violation of the foregoing condi- • tions or agreements, or any of them, this policy shall become null and void, all payments made herein shall be forfeited, and the company shall not be' liable for the payment of the sum insured, or of any part thereof; that in case the insured shall die by his own hand or act, voluntarily or otherwise, or in consequence of engaging in a duel, or in consequence of violating any law of any nation, state, province, or municipality, this policy shall become and be null and void, and the company will not become liable for the sum insured.”
    The defendant admitted that all the premiums down to August 27,1872, had been paid as they fell due, and the plaintiff then called W. P. Dunwoody as a witness, who testified that he had been the defendant’s agent for several years at Washington,
    The following receipt was then shown the witness by plaintiff’s counsel:
    “ National Life-Insurance Company of the United States of America, Branch Office, Philadelphia.
    “ Policy No. 15553, “Premium, $57.40.
    “ Washington, D. 0.,
    
      November 27,1872.
    Received $57.40, which continues in force policy No. 15553 on the life of Edward N. Jacobs for three mouths from date, until the 27th of February, 1873.
    J. M. BUTLER, Secretary.”
    “ Notice to policy-holders. — For terms of mutual agreement, see application and policy. Receipts, to be valid, must be signed by an officer of the company. Agents should countersign receipts sent to them for delivery, as evidence of payment to them. Agents cannot make binding, or continue any policy; nor can they make, alter, or discharge contracts, or waive forfeitures, or bind the company in any way. When notices are sent to policy-holders that their premiums are about to become due, they are sent solely from courtesy, and not as an obligation of the company, which will be responsible neither for their sending nor their miscarriage. Any extension of time by an agent for the payment of premiums is without the authority of the company, and will in no way enlarge or extend its liabilities under the policy.
    E. A. ROLLINS,
    President.”
    (Across the face:) “ This payment, if made when overdue, will not be valid in continuing the policy, unless the party insured is in good health at the time.
    Countersigned by
    W. P. DUNWOODY,
    
      Agent at Washington, D. 0.”
    And the witnesses testified that said receipt was the receipt of the defendant, and that he, the witness, as the agent of the defendant, gave said receipt to the insured, who had previously paid him the premium, the receipt of which is thereby acknowledged.
    On cross-examination, Mr. Dunwoody said that the premium due on said policy was not paid till the 28th day of December, 1872, on which day he delivered said receipt to the insured.
    Ón his redirect-examination Mr. Dunwoody stated that he had authority to accept an overdue premium on a policy, and thereby continue the policy in force, at any time within thirty days or within a month after the premium fell due.
    The counsel for the defendant then admitted to the jury that Edward N. Jacobs, whose life was insured by said policy, died on the 19th day of January, 1873; that proof of his death was furnished the defendant by the plaintiff, in accordance with the requirements of said policy and as stated in the declaration in this case; and that the plaintiff, as the mother of the insured, had an insurable interest in the life of insured. And there the plaintiff rested.
    The defendant’s counsel requested the court to instruct the jury that, on the evidence, the plaintiff was not entitled to a verdict, on theground of the variance already mentioned ; and, also, because the contract declared on is an absolute one, and' the policy in evidence is upon the condition that the statements made in the application are in all respects true, and-made a part of "the contract, and should, therefore, have been set forth in the-declaration, and the truth thereof established by the plaintiff to entitle her to recover. But the court re-' refused to give said instruction, and defendant’s counsel excepted.
    The defendant put in evidence the application referred to in the policy, and proved a number of facts tending to show that the insured laid down at night under a tree in the open grounds adjacent to the Smithsonian Institution, in the city of Washington, during the prevalence of very cold weather, where he was found about five o’clock p. m. on the 18th day of January, 1873, frozen to death.
    The defendant closed its testimony, and the plaintiff called A. R. Jacobs, brother of the insured^ who testified in regard to the disappearance of the insured; and that a policeman notified him of the finding of the body next morning, just as he was dressing to go out and look for his brother.
    On cross-examination, Mr. Jacobs was asked whether he had ever known the insured to stay away all night before, and replied that he could not recall any particular instance. He was then asked if he recollected of the insured having ever gone to Arlington and staid all night, and replied that the insured, in August, 1872, started to go to Arlington, and remained away all night; that witness and the plaintiff were very uneasy about him on that occasion; that in the morning witness went to the Treasury Department and learned when the insured had left there; that witness then returned home and found the insured there. The witness was then asked by plaintiff’s counsel this question:
    “Did he tell you how he came to stay out all night? ” and he replied “Yes, sir.” He was then asked by plaintiff’s coun■sel: “What did he say induced him to doit?” To which last-mentioned question thecounselfor the defendantobjeeted, but the presiding justice overruled said objection, and directed the witness to answer the question, which he did. The defendant’s counsel excepted to this ruling of the court.
    
      The testimony being closed, the counsel for defendant prayed the court to instruct the jury that their verdict must be for the defendant, because a different contract had been proved from-that alleged in the declaration, and that the burden of proof is on-the plaintiff to prove the truth of the statements and declarations contained in- the application for insurance introduced in evidence and forming part of the policy, and failure to adduce evidence in support of the statements and declarations is fatal to the plaintiff; but the justice refused to give such instructions, saying to the jury, “There has been no proof on that subject. I refuse to give that instruction.” To which ruling of the court the counsel for the defendant excepted. The court then charged the jury, among other things—
    “Gentlemen: The defense in this case is that the party whose life was insured by this policy came to his death voluntarily and by his own act; in other words, that he came to his death by suicide; and if that defense is established, it will defeat any recovery in this case, and the verdict will be for the defendant. That is the only defense interposed here, and, unless it is established by the testimony in the case your verdict will be for the plaintiff.
    “Now, it does not matter what means a party adopts to terminate his-existence, whether it is by violent exercise or by exposure (as is alleged to have been, the cause of death in this case) to the elements. If the party lay down there with the purpose of ending his life, that would be suicide. If,.overcome, by drowsiness, he became insensible, and without any intention or design of taking his life he lay down there, it would not be suicide. So that you must arrive at the conclusion, from the circumstances in the case, in order to uphold the defense, that he intentionally laid down there for the purpose of ending, his life. If he lay down, there for some other cause, independent of any such intention,, the defense is. not made-out.
    “ The amount to be recovered, if. you find for the plaintiff, will.be the amount of the policy, together, with.the.premiums, and with interest.from the time of the-proof of the death.”
    And the following portions Of. said- charge were duly excepted- to:
    
      “ The only defense in this case is that the party whose life was insured by this policy came to his death voluntarily and by his own act. To uphold this defense, you must arrive at the conclusion from the circumstances in the case, that the insured intentionally lay down, where he was found dead, for the purpose of ending his life. If he lay down there from some other cause, independent of any such intention, the defense is not made out.”
    The jury returned a verdict in favor of the plaintiff, and the case is now here on the exceptions.
    
      I. G. Kimball and R. T. Merrick for plaintiff.
    
      Edwin L. Stanton and A. S. Worthington for defendant.
   Mr. Justice Mac Arthur

delivered the opinion of the court:

The declaration in this case is upon a policy of insurance issued to the plaintiff, whereby the defendant insured the life of her son, Edward N. Jacobs, for her benefit, in the sum of $5,000.

The consideration is stated to be the payment, by the plaintiff to the defendant, of the sum of fifty-seven dollars and forty cents quarterly. The policy, which was offered in evidence at the trial, expresses that it was made in “ consideration of the representations and declarations made to it in the application thereforand also of the due payment of the premiums just mentioned. The defendant objected to the introduction of said policy in evidence, on the ground that there was a variance between it and the policy set up in-the declaration, inasmuch as it did not state the entire consideration. It is admitted that the representations and declarations which constituted the application had been furnished the defendant before the policy issued. It was, therefore, an executed part of the consideration. The risk of the insurers was intended to be undertaken on the unexecuted part of the consideration, which was the payment of the premiums as they should fall due. We áre therefore inclined to the opinion that there was no such variance as would defeat the action. Pittman vs. Fuller, 13 Mich., 113; 15 Gray, 249; May on Ins., 235, 98 Mass., 381; 1 Chitty Pl., 299. The objection that the application presented to the defendant, when the insurance was effected, is not set forth in the declaration, must be disposed of in the same way. It is no part of the plaintiff’s cause of action. If the representations were untrue there could be no recovery. But we all think it is for the defendant to falsify them, and not for the plaintiff to prove their performance in the first instance. Besides, we are inclined to hold that it is sufficient to declare generally in this way upon a policy of life-insurance. It not only avoids great prolixity, but relieves the trial from numerous embarrassments growing out of alleged variances. It is also in conformity with the simplified forms of pleading recognized by our own rules, and therefore is to be upheld. Fowler vs. Insurance Company, 15 Gray, 249; Life and Fire Insurance Company vs. Johnson, 4 Zabriskie, 676; S. C., 1 Big., 327; New York Life-Insurance Company vs. Graham, 2 Duvall, 506; S. C., 1 Big., 114.

The third exception is upon the point whether the payment of the overdue premium revived the policy. The receipt is dated on the day the premium was due, and the agent of the company, who was examined as a witness, stated that he delivered it to the insured who had previously paid him the money, and that he had authority to accept a premium at any time within thirty days or a month after it fell due. But it is alleged that that period expired on the 27th of December, or one day before he received the money and gave the receipt. The receipt itself is executed with all the formalities required by the policy. Without going into a computation of time to ascertain whether the period within which the agent could receipt for the premium had expired, we are satisfied that the facts stated constitute a re-instatement of the policy. It is true that the policy is to cease as a liability upon the defendant if the premium is not paid as it becomes due; and it is also true that the defendant’s agents have no power to waive the conditions that are expressly stipulated for. It is, nevertheless, competent for defendant to waive forfeitures, so as to give renewed effect to the contract.

In the case of Bonton vs. The Fire-Insurance Company, decided by the supreme court of Connecticut, the court employ the following language in speaking of a condition of this kind: “But that as that provision was inserted for the solebenefit of the defendants, it is only voidable at their election, and that it was, therefore, competent for them to waive a strict compliance with it after the time stipulated for the payment of such premium; and that in case of such waiver the policy would be revived, and continued obligatory on the defendants on its original terms; and further, that the reception, by them or their authorized agent, of the premium for that purpose, after that time, would have the effect of reviving and continuing the contract evidenced by the policy as though it had been strictly complied with by the insured. The authorities in support of this opinion are so numerous, uniform, and explicit, and the reasons for it are so .fully and satisfactorily given in them, that we deem it sufficient only to refer to them. Winy vs. Harvey, 27 Eng. L, and Eq., 140; Buckber vs. United States American Insurance and Trust Company, 18 Barb., 541; Sheldon vs. Connecticut Mutual Life-Insurance Company, 25 Conn., 207; Angelí on Insurance, sec. 213, and note, sec. 343.” We recognize this authority as settled law and as entirely decisive of the point under consideration. To allow the company to treat the policy as at an end, in view of the fact that they have received the consideration for renewing it, would be to suppose a singular degree of license from the ordinary obligation of a contract.

Another point in the case is that hearsay evidence was allowed to go to the jury. This has reference to the testimony of A. It. Jacobs, a brother of the deceased, who was permitted to testify what he heard his brother say as to his having staid away from home all night in the month of August, 18T2. The fact of his remaining from home all night was drawn out on the cross-examination by defendant’s counsel; and the plaintiff’s counsel then asked, “What did he say induced him to- do it ?” The answer would be clearly hearsay, unless the door was opened for its introduction by cross-examination, and we are inclined to think that such was the ease. The fact of his brother’s absence in the nighttime had been particularly inquired into on the other side, and the communication made to the witness was explanatory of that circumstance. At least it appears to be sufficiently responsive to the new matter to justify its admission.

It remains only to consider the last exception, which is to the instruction of the court upon the meaning of the clause of the policy which declares that it shall be null and void in case the insured shall die by his own hand or act, “ voluntarily or otherwise.” In the charge of the court, the jury were instructed that in order to sustain the defense they must believe from the testimony thatthe insured intentionally lay down, where he was found dead, for the purpose of ending his life. It must be admitted that this part of the charge was correct, unless the word “ otherwise ” makes any act not willful or intentional by which the insured may take his own life a forfeiture of the insurance.

The counsel for defendant admitted that the courts had decided that, although the language of the policy avoided it, in case the insured shall die by his own hand or act, yet if he committed the act of self-destruction under the influence of insanity the company would still be liable. In order to meet this interpretation the defendant inserted this term “otherwise,” so that they would be exonerated if an insane man took his own life. But the word is not used in this limited sense. It can be reasonably and naturally understood as embracing every species of self-destruction, whether intentional or accidental, caused by the act or handof theinsur'ed. If the act is by his own hand it is only necessary that it should be voluntary or otherwise in order to avoid the insurance. There is nothing in the ordinary or popular acceptation of the term which would limit its sense only to mean insanity. It is admitted that such was not the understanding of the company, and that this construction would defeat the intention of both parties; and probably no court in America would undertake to enforce a provision so dangerous and uncertain. If the defendant desires to contract that death by insanity shall invalidate the policy, they can easily adopt terms to express that intention. Meanwhile we think that no stress is to be laid upon the use of a word so vague and intangible, and so impracticable in its application. Besides, there is no direct testimony of insanity in the case, and no jury in the world that were not themselves crazy would have been warranted in considering the subject.

We think the court below construed the policy properly, and the judgment must be affirmed.  