On the 28th of June, 1869, the New Jersey Mutual Life Insurance Company made its policy of insurance upon the lives of Anson M. Baker and Martha, his wife, undertaking, upon the death of either of them, to pay the survivor the sum of $10,000. Martha Baker died on the 6th of December, 1870, and this action is brought to recover the amount insur d by such policy. Upon a trial before the circuit judge and a jury, a verdict was rendered in favor of the plaintiff for the amount claimed.
The insurance company seeks to set aside the judgment rendered upon this verdict for the reasons following:--
1. That the court erred in refusing the request made by the defendant's counsel to direct the jury to find a verdict for the defendant, on the ground that the evidence was not sufficient to sustain a verdict for the plaintiff.
This request was based upon the allegation that there was undisputed evidence of a violation of 'certain expressed warranties contained in their application, the 22d,' which referred to the party's usual medical attendant, and the answer thereto; and also 'in regard to question No. 7, what members of the party's family have died of or been afflicted with' certain diseases named, and the answers thereto.
It will not do for counsel, in requests to the court, to assume the existence of facts, and ask a charge to the jury based upon such assumption. Gladmon v. Railroad Company, 5 Wall. 401. Nor will it do for counsel, upon argument before this court, to insist that, because the counsel below made such assumption, we are to consider the assumed facts as existing. An examination of the record before us shows that the statements upon which the above request was made are without foundation. There is no evidence that the policy contained any agreement that the statements of the application should be express warranties, or that they should have any effect whatever; there is no evidence that the application, which was upon the trial assumed to have been made, and which contained the questions and answers referred to, was ever presented to the insurance company; there is no evidence that the policy of Mr. and Mrs. Baker was based upon such application; there is no evidence that the policy issued referred in any manner to this application, or that this application referred in any manner to the policy. On all these points we have no information. The record is absolutely silent as to each of them.
The only information we can obtain of the contents of the policy is from the complaint and the answer. The complaint, not referring to any application, alleges the execution of a policy of insurance for the sum of $10,000 upon the lives of Baker and his wife, in consideration of the payment of the sum of $412.20 at the time of its issuance, and of the future annual payment of the same sum; alleges the death of the wife, notice to the company, the service of proofs, and performance of all the conditions required.
The company answered, admitting the allegations of the complaint, 'except as hereinafter modified, and except the allegation that the plaintiff performed all the conditions of the policy,' as to which it alleges a failure to perform, by reason of concealing certain information set forth. The answer also denies that the agreement to pay the sum named formed the sole consideration of the policy, but alleges that the representations made in the 'application therefor' formed a part of the consideration.
The answer proceeds, '2dly, and as matter constituting a defence to the action,' to allege the making an application in writing and the propounding of certain questions therein, and the answers thereto, and the agreement that such statements should form the basis of the contract of insurance; that, if untrue, the policy should be void, and alleging that such statements were untrue.
All the special matters thus set forth are matters in defence, and the burden of proving their truth rested upon the defendant. If this application formed the basis of the contract of insurance, the defendant should have made proof to that effect at the trial. If the plaintiff had stipulated that any untrue statement (whether material or not, whether wilfully false or mistakenly untrue) should destroy his policy, the defendant should have proved at the trial a fact so material. No such proof appears in the record.
By the course of the trial, t was assumed that an application had been made, and that it contained the questions and answers numbered as above set forth. It is, however, nowhere admitted or assumed that it formed the basis of the policy, or that the policy contained any stipulation in regard to it.