^ TU /^ /y 15 . (Jnrnf II SJaui ^rl;anl ICibrairy Cornell University Library KF1173.B59 1871 V.I Reports of all the published life and ac 3 1924 019 315 732 W B Cornell University WM Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019315732 REPORTS OF ALL THE PUBLISHED LIFE AND ACCIDENT INSURANCE CASES DETERMINED IN THE AMERICAN COURTS PRIOR TO JANUARY, 1871. WITH NOTES TO ENGLISH CASES. BY MELVILLE M. BIGELO.W, OP I«E BOSTON BAB. NEW YORK: PUBLISHED BY KURD AND HOUGHTON. 1874. Entered according to Act of Congress, in the year 1871, by Melville M. Bioelow, in the Office of the Librarian of Congress, at Washington. irOTE. The cases in this volume are arranged chronologically, by states, in the style of the state Reports. Arrangement by subjects was found impracticable from the circumstance that the cases often involved points widely different in character. The facility, however, of ascertaining the course of adjudication upon any point in the several states, by the arrange- ment adopted, will, perhaps, overbalance other considerations. • The head-notes have been mostly rewritten, and all matters not relating to Insurance omitted. The opinions, however, have been reproduced verbatim, and, with a single exception, in full ; though in a few instances this has involved the use, to a very lim- ited extent, of matter not strictly germane to the subject of the work. This has been done to render the cases as here reported of equal value and authority with the origiiial Reports. The ex- ception referred to is the South Carolina case of Rivers v. Gregg, 704 ; the omitted and by far the greater portion of which relates to charging the estates of infants for necessaries, and has no bear- ing whatever upon the subject of Insurance. This volume, as the title indicates, contains all the American cases which have been published as late as the beginning of the present year. The next and succeeding volumes will contain the subsequent American and English cases, and a selection of the most valuable English decisions heretofore published. Boston, March 1st, 1871. TABLE OF OASES EEPOETED. ^tna Life Ins. Co., Taylor v American Life Ins. Co., Bouton v. Catoir v. . . . Dean v. . Forbes v. . . . Gibson v. Hammond v. Philadelphia Life Ins. Co. Rawls V. . . . V. Kobertshaw St. John V. Applegate, Fraternal Mutual Life Ins. Co. v. Asneville Mutual Ins. Co., Woodfin v. Baker v. Union Life Ins. Co Baldwin v. New York Life Ins. Co. Baum, Provident Life Ins. Co. u. . . . Berkshire Life Ins. Co., Commonwealth v. . PittM. Bevin v. Connecticut Mutual Life Ins. Co. . Bouton V. American Life Ins. Co. Breasted v. Farmers' Loan and Trust Co. Briggs V. McCullough Brown v. Railway Passenger Assurance Co. Buckbee v. United States Ins. Co. . Burroughs, Connecticut Mutual Life Ins. Co. v. V. State Mutual Life Ins. Co. Campbell v. New England Mutual Life Ins. Co. V. International Life Assurance Society Casler v. Connecticut Mutual Life Ins. Co. Catoir v. American Life Ins. Co. . Clark V. Durand Clay, Ex parte Cluff V. Mutual Benefit Life Ins. Co. Colburn, Wason v Commonwealth v. Berkshire Life Ins. Co. Connecticut Mutual Life Ins. Co., Bevin v. . V. Burroughs Casler v. . 208, 229 522 540 836 721 672 265 278 224 19 63 540 Miles V 173 V. New York and New Haven Railroad Co. 41 Sheldon v 2J Welts V 581 189 51 336 195 191 590 181, 185 662 549, 558 665 359, 372 629 626 595 504 108 224 284 19 . 51 341, 343 1 321 406 63 222 vi TABLE OF OASES REPORTED. Coon t). Swan and Meeker 717 Cooper V. Massachusetts Mutual Life Ins. Co. 758 Ball, Lord « 154 Dana v. Merrill 166 Dean v. American Life Ins. Co 196 Durand, Clark v 721 Eadie v. Slimmon 567 Eagle Life and Healfli Ihsi Co., Loomis o. 175 Miller 0. 375 Vose V. 161 Eastabrook v. Union Life Ins. Co 189 Elliott's Executors, £a; parte 672 Einerson, Gould v 258 Ensworth v. New York Life Ins. Co 646 Farmers' Loan and Trust Co., Breasted v 341, 343 Faunce v. State Mutual Life Ins. Co 292 Fennell v. Provident Life Ins. Co 99 Flack, New York Life Ins. Co. » 146 Forbes u. American Life Ins. Co 191 Fraternal Mutual Life Ins. Co. v. Applegate 629 Fried v. Boyal Ins. Co 588 Gibson v. American Life Ins. Co 590 Goram, Mutual Protection Ins. Co. v 709 Gould V. Emerson 258 Graliam, New York Life Ins. Co; v 114 Graves, St. Louis Mutual Life Ins. Co. v. 736 Greggi Rivers v 704 Guardian Life Ins. Co., Hodsdon v 218 Hogle» 597 KoelgesB 621 . Hamilton ». Mutual Protection Ins. Co 709 Hammond v. American Life Ins. Co 181, 185 Harper v. Phoenix Ins. Co 800, 301 Harrison p. McConkey 144 Hartman v. Keystone Ins. Co 649 Hathaway v. Trenton Mutual Life Ins. Co 172 Helme v. Philadelphia Life Ins. Co. 685 Hodges, Machette v 682 Hodsdon v. Guardian Life Ins. Co 218 Hogle V. Guardian Life Ins. Co 597 Home Ins. Co., Mowry v. 698 Howard, Herman v 728 Howell V. Knickerbocker Life Ins. Co 578 Hoyt V. Mutual Benefit Life Ins. Co 253 V. New York Life Ins. Co 497 International Life Assurance Society, Campbell v 522 Bobinson v 601 Jarvis, Mutual Benefit Ins. Co. t> 5 Jenks V. Kentucky Mutual Ins. Co , . . . 101 John Hancock Mutual Life Ins. Co., Loos 17. 315 Johnson, Trenton Mutual Life Ins. Co. v. 327 TABLE OF CASES REPORTED. vii Eeleey V. Universal Life Ins. Co. . .76 Kennedy v. New York Life Ins. Co 123 St. Louis Mutual Life Ins. Co. v 753 Kentucky Mutual Ins. Co. v. Jenks 101 Kerman v. Howard 728 Keystone Ins. Co., Hartman v 649 Myers v ' . . . 668 King, State, ex rel. Mssouri Mutual Life Ins. Co. v. . . . . 318 Knickerbocker Life Ins. Co. v. Weitz 261 Howell V . 678 Koelges V. Guardian Life Ins. Co 621 Leonard v. Washburn 281 Libby v. Libby 136 Loomls V. Eagle Life and Health Ins. Co. 175 Loos V. John Hancock Mutual Life Ins. Co. 315 Lord ». Ball 154 Machette v. Hodges and Sully and Kew England Mutual Life Ihs. Co. . 682 Manhattan Life Lis. Co., Pomeroy v 99 Keichard v. 309 Massachusetts Mutual Life Ins. Co., Cooper v 758 McAllister v. New England Mutual Life Ins. Co 293 McConkey, Harrison v. 144 McCord V. Noyes 463 McCullou^, Briggs v 1 McKeet). Phoenix Ins. Co 306 Meeker, Coon» 717 Merrill, Dana v 166 Palmer v 166 Miles V. Connecticut Mutual Life Ins. Co 173 Miller V. Eagle Life and Health Ins. Co 375 Mississippi Valley Life Ins. Co. v. Morel 116 Missouri Mutual Life Ins. Co. v. King 318 Mitchell, Moehring, v 353 V. Union Life Ins. Co 137 Moehring v. Mitchell 353 Morel ». Mississippi Valley Life Ins. Co 116 Morrell ». Trenton Mutual Life Ins. Co 170 Mowiy V. Home Ins. Co 698 Mjirphy v. Mutual Benefit Life Ins. Co 122 Mutual Benefit Life Ins. Co., Cluffti ' 208,265 Hoyt V 253 V. Jarvis 5 Murphy v, 122 Nimick V. 689 Ruset) 467,472,481 V. Buse 83 Mutual Life Ins. Co., Bockwell v 725 V. Wager 483 Mutual Protection Ins. Co. v. Hamilton and Goram 709 Myers V. Keystone Ins. Co 668 National Loan Assurance Society, Valton v. . . . 409, 436, 440, 4S1 Now England Mutual Life Ins. Co., Campbell V. 229 Machettev. 682 McAllister V. .... 293 People V. 573 Robert.v. 634 Viii TABLE OF CASES REPORTED. New York and New Haven Kailroad Co., Connecticut Mutual Life Ins. Co. v. 41 New York Life Ins. Co. Baldwin v. 504 EnswoTth V. 645 V. Flack 146 t;. Graham 114 Hoyt V. 497 Kennedy v. 123 Peacock v . 455, 465 Nightingale v. State Mutual Life Ins. Co 695 Nimick v. Mutual Benefit Life Ins. Co. 689 North Carolina Mutual Life Ins. Co., Spmill v 624 Northup V. Railway Passenger Assurance Co. . . . . . 619 Noyes, McCord v 453 Overton v. St. Louis Mutual Life Ins. Co 313 Palmer v. Merrill 166 Peacock v. New York Life Ins. Co 455, 465 People V. New England Mutual Life Ins. Co 573 Perry v. Provident Life Ins. Co 263 Philadelphia Life Ins. Co. v. American Life Ins. Co 662 Helme v 685 Phoenix Ins. Co., Harper v 300, 301 Pitt V. Berkshire Life Ins. Co 284 Pomeroy v. Manhattan Life Ins. Co. 96 Provident Life Ins. Co., Baum v 108 V. Fennell 99 Perry v 263 Schneider v . 731 Railway Passenger Assurance Co., Brown v. 321 Northup V 619 Southard v. 70 Rawls V. American Life Ins. Co 549, 558 Reichard v. Manhattan Life Ins. Co 309 Richardson, Succession of 133 Risley, Succession of 118 Bison V. Wilkinson 707 Rivers v. Gregg 704 Robert v. New England Mutual Life Ins. Co 634 Robertshaw v. American Life Ins. Co 665 Robinson v. International Life Assurance Society .... 601 Rockwell V. Mutual Life Ins. Co 725 Royal Ins. Co., Fried v. 588 Ruse, Mutual Benefit Life Ins. Co. v 83 j7. Mutual Benefit Life Ins. Co 467, 472, 481 Sawyer v. United States Casualty Co 289 Schneider v. Provident Life Ins. Co. 731 Sheldon v. Connecticut Mutual Life Ins. Co. 27 Slimmon, Eadie v 567 Snow, Swan v 206 Southard v. Railway Passenger Assurance Co. 70 Spruill V. North Carolina Mutual Life Ins. Co 624 St. John V. American Life Ins. Co 359, 372 St. Louis Mutual Life Ins. Co. v. Graves 736 V. Kennedy 753 Overton v 313 State, ex rel Missouri Mutual Life Ins. Co. v. King 318 TABLE OP CASES REPORTED. ix State Mutaal Life Assurance Co., Burroughs v 222 Faunce v 292 Nightingale t; 695 Stevens v. Warren 297 Succession of Bichardson 133 Bisley 118 Sully, Machette w 682 Summers v. United States Ins. Co 131 Swan, Coon V 717 V. Snow 206 Taylor V. ^tna Life Ins. Co 189 Trenton Mutual Life Ins. Co., Hathaway v. , . . ' . 172 V. Johnson 327 Morrelli) 170 Union Life Ins. Co., Baker v 595 Eastabrook v 139 Mitchell V 137 United States Casualty Co., Sawyer v. 289 United States Ins. Co. Buckbee v 406 Summers v 131 Universal Life Ins. Co., Kelsey v. ........ 76 Valton V. National Loan Assurance Society . . . 409, 436, 440, 451 Vose V. Eagle Life Ins. Co 161 Wager, Mutual Life Ins. Co. v- 483 Warren, Stevens v 297 Washburn, Leonard v 281 Wason V. Colburn 278 Weitz, Knickerbocker Life Ins. Co. v 261 Welts V. Connecticut Mutual Life Ins. Co. . . . . . . 581 Wilkinson, Bison v. 707 Woodfin V. Asheville Mutual Ins. Co 626 TABLE OF OASES OITED IN THE OPINIONS AND NOTES. Ade V. Femie, 7 Mees. & W. 151 Adams v. Lindsell, 1 Bam. & Aid. 681 V. Penn. Ins. 1 Kawle, 107 V. Robinson, 1 Pick. 461 .ZEtna Fire Ins. Co. v. Tyler, 16 Wend. 401 Mtaa, Ins. Co. v. Webster, 8 Wall. 129 Allen V. Hoyt, 5 Met. 328 . Alston V. Mechanics' Ins. Co. 4 Hill, 329 Amicable Society v. Bolland, 4 Bligh, (N. S Amory v. Gilmau, 2 Mass. 1 Anderson v. Eadie, Park on Ins. 640 . u. FitzgerAld, 4 H. L. Cas; 484 Andrews u. Sparhawk, 13 Pick. 393 Anthony v. Slaid, 11 Met. 290 . Arms V. 4^hley, 4 Pick. 71 . Ashley v. Ashley, 3 Sim. 149 Assievedo v. Cambridge, 10 Mod. 77 Atherton v. Brown, 14 Mass. 152 Anstin ». Kimball, 12 Cush. 485 . Avery v. Stewart, 2 Conn. 69 . Aveson v. Einnaird, 6 East, 188 . Babcock v. Thompson, 3 Pick. 446 . Badger v. Titcomb, 15 Pick. 409 . Bagster v. Portsmouth, 7 Dowl. & R. 614 Bainbridge i;. Clay, 16 Martin, 56 Baker v. Bolton, 1 Camp. 493 . Bank v. Green, 3 Watts, 374 Barclay v. Cousins, 2 East, 544 Barrett v. Buxton, 2 Aikens, 167 . Baxter v. New England Ins. Co. 3 Mason> 96 Beadle v. Chenango Ins. Co. 3 Hill, 161 Beall ». Beall, 7 Gill, 233 . Beatson v. Schank, 3 East, 233 Beebe Vi Johnson, 19 Wend. 500 Bigelow V. Wilson, 1 Pick. 485 Bissell t). Bissell, 11 Barb. 96 . Bize V. Fletcher, Doug. 12, n. Blaney v. Rice, 20 Pick. 62 Blood B. .Howard Ins. Co. 12 Cnsh. 416 Bloxsome v. Williams, 3 Bam. & C. 232 Bonaparte v. Camden & Amboy R. Co. 1 Bald, Borradaile v. Hnnter, 5 Man. & 6. 639 Bosley v. Chesapeake Ins. Co. 3 Gill & J. 450 Boynton v. Page, 13 Wend. 425 . Bradley v. Hunt, 5 Gill & J. 54 British Ins. Co. v. Magee, Cook & A. 182 . 194 218 347 139, 349, 141, 350, 142, 352, PASS 94, 640 . 104 . 333 • 167 . 390 . 297 . 26<' . 491 . 306 . 333 . 171 166, 249 . 167 48 166,260 370, 371, 374 . 393 . 162 . 247 185, 539 79, 633 . 333 . 288 204, 351 . 121 45 . 658 . 399 . 349 . 162 638, 643 . 148 . 517 . 518 . 532 538, 539 . 474 . 162 . 238 . 537 . 685 203, 204, 205, 213, 690, 740, 748, 760 148 . 538 14S 158, 178, 332 Xll TABLE OF CASES CITED. 213 152 S.) 437 Brocklebank v. Sugrae, 5 Car. & P. 21 Broome v. ■Wellington, 1 Sandf. 664 Brown v. Kimball, 25 Wend. 259 Bryant v. Ocean Ins. Co. 22 Pick. 200 . Buchanan v. Ocean Ins Co. 6 Cow. 318 Bufe V. Turner, 6 Taunt. 338 Burritt v. Saratoga Ins. Co. 5 Hill, 188 Burt V. Gwinn, 4 Harris & J. 507 . Bussard v. Leyering, 6 Wheat. 102 . Campbell v. Charter Oak Ins. Co. 10 Allen, V. Eickards, 5 Bam. & Ad. 840 Carlin v. Dumartrait, 17 Martin, 21 Carney v. Dewing, 10 Cush. 498 Carpenter v. American Ins.' Co. 1 Story, 57 V. Burden, 2 Pars. 27 i>. Stereris, 12 Wend. 589 Carrington v. Conmiercial Ins. Co. 1 Bosw. Carter v. Boehm, 3 Burr. 1905 Catlin V. Hansen, 1 Duer, 310 . Cazeuove v. British Ins. Co. 6 Com. B. (N. Chattock V. Shawe, 1 Mood. & R. 498 Chauncy v. Graydon, 2 Atk. 617 . Chaurand v. Angerstein, Peake, N. P. 43 Cheriot v. Barker, 2 Johns. 346 Chesterfield, Earl of, v. Janssen, 1 Atk. 346 Chouteaux v. Leech, 18 Penn. St. 224 . Church ?;. Hubbard, 2 Cranch, 187 Claflin V. Godfrey, 21 Pick. 1 . . . Clapham v. White. 8 Ves. 35 ... . aark V. Hundred of Blything, 2 Bam. & C. 254 V. Manufacturers' Ins. Co. 8 How. 235 . V. Montague, 1 Gray, 448 . V. New England Ins. Co. 6 Cush. 340 Clason V. Smith, 3 Wash. 156 Clendining v. Church, 3 Caines, 141 . Clift V. Schwabe, 3 Com. B. 437 . Cock V. Bunn, 6 Johns. 326 ... . Cole V. Hebb, 7 Gill & J. 20 CoUamer v. Bsty, 2 Vt. 144 ... . Collett V. Morrison, 9 Hare, 162 . Columbian Ins. Co. v. Lawrence, 2 Peters, 25 . CoMn V. The King's Proctor, 1 Hagg. Eccl. 92 Commonwealth v. Hamilton Manufg. Co. 12 AUen V. Shaw, 4 Cush. 594 . . Cook V. Black, 1 Hare, Ch. 390 . V. Oxley, 3 Term, 658 . Comell V. Le Eoy, 9 Wend. 163 Cox V. White, 2 La. 425 ... . Craufurd v. Hunter, 8 Term, 13 Crawford v. Brooke, 4 Gill, 221 . Crockett v. Crockett, 2 Phil. Ch. 555 Cross V. Andrews, Cro. Eliz. 622 CuUen V. Butler, 5 Maule & S. 466 . Curling v. Townshend, 19 Ves. 628 Curry v. Commonwealth Ins. Co. 10 Pick. 535 Curtis V. Hubbard, 9 Met. 322 .. . Cutts V. Perkins, 12 Mass. 206 . Cuvler V. Stevens, 4 Wend. 566 298 139, Dalby v. India, &c., London Ass. Co. 15 Com.B. 365 393, 397 Daniels v. Hudson River Ins. Co. 12 Cush. 426 Davenport v. New England Ins. Co. 6 Cush. 340 Davis V. Rainsford, 17 Mass. 207 V. Thomas, 1 Buss. & M. 506 404, 203, 351, 532 . 539 431 . 162 333, 393, 478 147, 491 162, 474, 491 . 148 . 539 236, 515, 148, 162, 352, 740, 749, 162, 332, 159, 180, 309 405, 496, 5fe4, 559 221 391, I, 478, 148, 204, 162, 270 555 121 260 162 684 516 598 161 365 166 166 643 687 162 333 665 598 167 684 51 659 246 249 148 477 760 539 148 333 483 659 356 227 79 724 104 112 121 479 150 260 351 51 334 243 289 167 539 313, 331, 560, 678 238, 239 249, 252 162 . 641 TABLE OF CASES CITED. xiii Decaux v. Itahj 123 Delamater ». Miller, 1 Cow. 75 185,538 Depaba v. Ludlow, 1 Com. 361 478, 479 Directors, &c. v. Eisch, Law B. 2 H. L. 99 483 Dodge, Ex parte, 7 Cow. 147 538 Dormay v. Borradaile, 10 Bear. 335 661 Dowly V. Foxall, 1 Ball & B. 193 . . . 532 Draper v. Charter Oak Ins. Co. 2 Allen, 573 . 249 Drury v. Defontaine, 1 Taunt. 131 537 Duckett V WilUams, 2 Crompt. & M. 348 147, 165 Duell V. Hall, 1 Phil. 259 684 Dufaur v. Professional Ass. Co. 25 Beav. 602 204 Dumas v. Jones, 4 Mass. 647 401 Duncan v. Sun Ins. Co. 6 Wend. 488 162, 474 Dupre V. Prescot 123 Dupres v. Desmoret 123 Easton v. Pa. & Ohio Canal Co. 13 Ohio, 79 638 Edwards ». Baltimore Ins. Co. 4 Gill, 176 113 Egan V. Mutual Ins. Co. 5 Denio, 326 638 EUis V. Messervie, 11 Paige, 467 568 Evarett v. Desborough, 5 Bing. 503 147 Fairchild w. Case, 24 Wend. 381 419 Farmers' & M. Bank v. Whinfield, 24 Wend. 420 369 Farmers' Ins. Co. v. Snyder, 16 Wend. 481 161, 474 Fennell v. Ridler, 5 Barn. & C. 406 537 Ferguson v. Lomax, 2 Dm. & W. 120 159, 332 Fiske w. New England Ins. Co. 15 Pick. 310 148 Fitzherbert v. Mather, 1 Term, 12 491 Fletcher v. Commonwealth Ins. Co. 18 Pick. 421 249 Flinn v. Tobin, 1 Mood. & M. 367 162 Fogg V. Middlesex Ins. Co. 10 Cush. 337 236 Forbush v. Western Mass. Ins. Co. 4 Gray, 337 238 Fortescue v. Bamett, 3 Mylne & K. 336 259, 725 Forward v. Pittard, 1 Term, 29 519 Fowkes V. Manchester Ins. Co. 3 Fost. & F. 440 166 Fowler v. JEtna Ins. Co. 7 Wend. 270 643 Francis v. Ocean Ins. Co. 6 Cow. 404 ; 2 Wend. 64 389 Frcake v. Cranefeldt, 3 Mylne & K. 500 147 Free v. Hinde, 2 Sim. 7 334 Freeman v. Cooke, 2 Exch. 654 596 Friend w. Fenner, 2 La. An. 789 133 Frith 17. Lawrence, 1 Paige, 434 103, 104 Geach v. Ingall, 14 Mees. & W. 95 147, 166 Gibson v. Cooke, 20 Pick. 15 169 Gilberts. Sykes, 16 East, 150 333 Glendale Manuf. Co. v. Protection Ins. Co. 21 Conn. 19 . . . .81, 175 Godsal V. Webb, 2 Keen, Ch. 99 724, 730 GodsaU V. Boldero, 9 East, 72 . 159, 178, 179, 180, 331, 402, 405, 420, 554, 678 Gordon v. Downey, 1 Gill, 41 148, 150 Grattan v. Appleton, 3 Story, 764 147 Graves v. Boston Ins. Co. 2 Cranch, 419 123, 129 t!. liCgg, 25 Eng. Law & E. 552 514 Gray v. Gardner, 17 Mass. 188 221 Grayham ». Commonwealth, 16 B. Mon. 587 753 Green v. Merchant^ Ins. Co. 10 Pick. 402 161 Grover v. Grover, 24 Pick. 261 247 Haldane v. Johnson, 8 Exch. 689 643 Hale V. Mechanics' Ins. Co. 6 Gray, 169 236 Halford !). Kymer, 10 Bam. & C. 724 160,178,180,393,666 Hall V. HaU, 6 Gill & J. 386 148 V. Marston, 17 Mass. 575 167 XIV TABLE OF CASES CITED JSarmon v. Fleming, 15 Miss. 135 .. . Harmonyo. Bingham, 1 Dner, 209 ; 2 Kern. 99 Hart ». Worcester B. Co. 13 Met. 99 . Saskins V. Hamilton Ins. Co. 5 Gray, 432 Hayward v. New England Ins. Co. 10 Gusli. 444 Haywood v. Rogers, 4 East, 590 .... fieath V. Franklin Ins. Co. 1 Cusli. 257 Hesse v. Stevenson, 3 Bos. & P. 565 Higginson v. Dall, 13 Mass. 96 . Hilliare v. Hambridge, Aleyn, 36 ... . HoUis V. Richardson, 13 Gray, 392 . Hooper V. Accidental Ins. Co. 5 Hurl. & N. 545 Horn V. Anglo-Australian Ins. Co. 7 Jur. (N. S.) 673 Houghton V. Manufacturers' Ins. Co. 8 Met. 114 . Howard v. Albany Ins. Co. 3 Denio, 301 V. Ives, 1 Hill, 263 Howell u. Rawson, 11 Paige, 538 Hoyt V. Gilman, 8 Mass. 336 . Huckman v. Femie, 3 Mees. & W. 518 Huguenin v. Rayley, 6 Taunt. 186 . Hunter v. Bryson, 6 Gill & J. 483 Hutcheson v. McNutt, 1 Ohio, 14 . Hutchinson v. Targee, 2 Green, 386 . Hutton V. Waterloo Ass. Co. 1 Fost. & F. 735 Indiana Mut. Ins. Co. v. Conner, 5 Ind. 170 Inman v. Western Ins. Co. 12 Wend. 452 Jackson v. Richards, 2 Caines, 343 Jeffferson Ins. Co. v. Cotheal, 7 Wend. 72 Jennings v. Chenango Ins. Co. 2 Denio, 75 Johnson v. Ames, 1 1 Pick. 1 73 V. Haight, 13 Johns. 470 Jolly V. Baltimore Equitable Society, 1 Harris & G. 295 Jones V. Provincial Ins. Co. 3 Com. B. (N. S.) 65 Jones Manuf. Co. v. Manufacturers' Ins. Co. 8 Cush. 83 Joyce V, Maine Ins. Co. 45 Maine, 168 Jubel V. Church, 2 Johns. Cas. 333 . Kane v. Hood, 13 Pick. 281 .... Kearney v. West Granada Ins. Co. 38 Eng. Law & E, Kimball V. ^tna Ins. Co. 9 Allen, 540 V. Davis, 19 Wend. 437 .. . King i;. State Ins. Co. 7 Ciish. 1 . Kingsley v. New England Ins. Co. 8 Cush. 393 Kisch «. Directors, &c.. Law R. 2 H. L. 99 . Kohne V. Ins. Co. of N. America, 1 Wash. 93 . Kciel V. Commonwealth, 5 Bush, 362 . IJaurent v. Chatham Ins. Co. 1 Hall, 41 . Law V. London Ins., Co. 1 Eay & J. 223 Lawrence v. Barker," 5 Wend. 305 . V. Fox, 20 N. Y. 268 . V. Sebor, 2 Caines, 205 . V. Van Home, 2 Caines, 276 Leadbetter v. MtusiXna. Co. 13 Maine, 265 Xieeds v. Mechanics' Ins. Co. 4 Seld. 351 Leete v. Gresham Ins. Co. 7 Eng. L. & B. 578 Leopard v. Chesapeake & O. Canal Co. 1 Gill, 222 Lester v. Garland, 15 Ves. 243 ... Lindenau v. Desborough, 8 Barn. & C. 586 link V. Clemmens, 7 Blackf. 479 Uoyd i>. Leisenring, 7 Watts, 394 Locke V. North American Ins. Co. 13 Mass. 68 London Ass. Co. v. Sainsbury, 3 Doug. 245 327 112, 514, .238, 80, 161, . 518 517, 580 . 51 241 . 249 148 . 112 161 87, 162 357 . 246 291 313, 662 175,239 . 477 539 568 162 147 166 147 , 639 332 166 . 642 516, 517, 518 205, 162, 239 162, 190, 221 539 , 555, 660 1, 474, 638 167 . 539 161 . 166 239, 241 . 561 477 . 161 514 238, 243 431 . 179 , 223, 241 . 483 104, 162 . 753 399 160, 180 78 599 401 421 571 532 329 148 532 147 185 333 249 51 TABLE OF CASES CITED. XV LonghuTst V. Star Ins. Co. 19 lo^ra, 364 IiOngmeid v. Holliday, 6 £ng. Law & £1. 563 liOring V. Proctor, 26 Maine, 18 Lothian v. Henderson, 3 Bos. & P. 499 I^ch V. Dalzell, 1 Bro. P. C. 431 . V. Bunsford, 14 East, 494 Mactier v. Frith, 6 Wend. 103 . March v. Pigot, 5 Burr. 2803 Mlartin v. Sitwell, 1 Show. 166 . Mason ». Sainsbuiy, 3 Doug. 61 . Maynard ». Rhode, 1 Oar. & P. 360 McfCnlloch V. Eagle Ins. Go. 1 Pick. 278 MoDoWall V. Eraser, Doug. 260 McEldeny v. Elannagan, 1 Harris & G. 303 McEwen v. Montgomery Ins. Co. 5 Hill, 101 McGoun II. Laj^am, 21 Pick. 135 McMasters v. Westchester Ins. Co. 25 Wend. 37$ Millaudon v. Atlantic Ina. Co. 8 La. 557 . Moskley v. Biggs, 19 Johns. 69 Montgomery v. Meyets, 2 La. An. 276 , Monticello, Propeller, 17 How. 154 . Moore v. Woolsey, 28 Eng. L. & E. 248 Morrison v. Muspratt, 4 Bing. 60 . Mosely v. Baker, 2 Sneed, 370 , . Mulford V. Brown, 2 Hals. 315 Mnlrey v. Mohawk Ins. Co. 5 Gray, 641 V. Shawmut Ins. Co. 4 Allen, 116 Mnmford v. Hallett, 1 Johns. R. 433 . Murdock ». Chenango Ins. Co. 2 Comst. 210 Mutual Safety Ins. Co. v. Cohen, 3 GUI, 459 Nash V. Nash, 2 Mad. 133 Newcastle Ins. Co. v. Macmorran, 3 Dow, 255 New England Ins. Co. v. Whitmore, 32 Bl. 223 Newhall v. Wheeler, 7 Mass. 189 New York Central Ins, Co. v. National Ins. Co. New York Ins. Co. v. ThofflaS; 3 Johns. Ch. 4 Niblo V. North American Ins. Co. 1 Sandf. 656 Nightingale v. State Mut. Ins. Co. 5 R. L 38 Nind w, MarshaU, 1 Brod. & B. 319 . Norcutt V. Dodd, 1 Craig & Phil. 100 . Notman v. Anchor Ins. Co. 4 Com. B. (N. St) 476 Oakes ». Tnrquaud, Law R. 2 H. L. 325 Oakley «. Morton, 1 Kern. 25 . V. Portsmouth 34 Eng. Law & E. 530 Orrell v. Hampden Ins. Co. 13 Gray, 431 Paradine v. Jane, Aleyn, 26 . . . Pai-khurst V. Dickerson, 21 Pick. 307 . Parks V. General Interest Ins. Co. 5 Pick. 34 Pawson V. Bamevelt, Doug. 12, note . . tayne v. Care, 3 Term, 148 . feck V. New London Ins. Co. 22 Conn. 675 . P^mington v. Gittings, 2 GiU & J. 317 . 0. Patterson, 2 Gill & J. 208 Penrod v. Morrison, 2 Penn. State, 128 . Pe6ple V. Bartlett, 3 Hill, 570 > V. Mantling, 8 Cow. 297 Perkins v. Washington Ins. Co. 4 Conn. 645 Perrins V. Marine Ins. Co. 2 El. & El. 317 Peto V. Brighton Railroad Co. 32 Law J, Rep. 677 Phoenix Life Ass. Society v. Sheridan, 8 H. L. Cas. 745 Fickard v. Sears, 6 Adol. & El. 469 ... . 20 Barb, 468 113 4» 163 162 477 16S 104, 107 . 333 393 61 166 103 162 14d 161 . I6i 390, 391 127 616 127 51 206 147 51» 333 241 284 25, 403 162, 399, 474 . 148, 153 357 175 100 167 532 87 399 680 161 680 173 483 517 519 517 167 163 474 104 . 40 147, 259 145, 150 680 . 515 . 517 , 167 166,661 . 685 95 . 59S XVI TABLE OF CASES CITED. Pike V. Butler, 4 N. T. 360 Poole V. Tunbridge, 2 Mees. &W. 223 Port V. Mackall, 3 Bland, 498 . Post V. Avery, 5 Watts & S. 509 . Powles V. Innes, 11 Mees. & W. 10 . Prentice v. Achom, 2 Paige, 31 Pritchard v. Merchants' Ass. Society, 3 Com. B. Propeller Mpnticello, 17 How. 154 Quebec Ins. Co. v. St. Louis, 22 Eng. Law & E. Randal v. Cochran, 1 Ves. Sen. 98 . Rapp V. Palmer, 3 Watts, 178 . . _ , Reed v. Royal Eehange Ass. Co. Peake Add. Cas. 70 Rex V. Inhabitants of Whitnash, 7 Bam. & C. Biggin V. Patapsco Ins. Co. 7 Harris & J. 279 Bobbins v. Bacon, 3 Greenl. 346 . Roberts v. Chenango Ins. Co. 3 Hill, 501 . Rockingham Ins. Co. v. Bosher, 30 Maine, 353 Ross V. Bradshaw, 1 W. Black. 312 . Routledge v. Burrell, 1 H. Black. 254 . Buggies V. Oeneral Ins. Co. 4 Mason, 74 . 596 , B, (N. Saddlers' Company v. Badcock, 2 Atk. 554 Sa£Ford v. Rautoul, 12 Pick. 233 Salter v. Burt, 20 Wend. 205 Salterthwaite v. Mutual Ins. Co. 14 Penn. St. 393 Sandford v. Mechanics' Ins. Co. 12 Cush. 541 Sands v. Lyons, 18 Conn. 18 . Sawyer u. Coasters' Ins. Co. 6 Gray, 221 Sayles v. Smith, 12 Wend. 57 . . . Scott V, Jones, 4 Clark & F. 382 . V. Roose, Longf. & T. 54 . Searing v. Searing, 9 Paige, 283 . Sears v. Shafer, 1 Barb. 408 .. . Shannon v. Nugent, 1 Hayes, Ir. 536 . Sheldon v. Purple, 15 Pick. 528 . Simpson v. Accidental Death Ins. Co. 2 Com. Sinclair v. Maritime Assurance Co. 107 Eng. Com. L. Skinner v. Dayton, 2 Johns. Ch. 526 . Smith V. Bank, 5 Serg. & B. 318 V. Commonwealth, 1 Duvall, 224 Snyder v. Farmers' Ins. Co. 13 Wend. 92 State V. Bank of Maryland, 6 Gill & J. 230 Stebbins v. Leowolf, 3 Cush. 137 Steene v. Aylesworth, 18 Conn. 244 Stetson V. Mass. Ins. Co. 4 Mass. 330 St. Louis Ins. Co. v. Kyle, 11 Mo. 278 . Stokes V. Cowan, 7 Jur. (N. S.), 901 . V. Saltonstall, 13 Peters, 191 Stone V. Hackett, 12 Gray, 227 . Story V. Elliott, 8 Cow. 27 ... . Stout V. Fire Ins. Co. of N. Haven, 12 Iowa, 371 Strong V. Manuf. Ins. Co. 10 Pick. 45 . Swasey v. Little, 7 Pick. 296 Sweet V. Brown, 12 Met. 175 Swete V. Fairlie, 6 Car. & P. 1 . TarbeU v. Gray, 4 Gray, 444 Tarleton v. Staniforth, 5 Term, 695 . Taylor v. Bullen, 6 Cow. 624 V. British Com. Ins. Co. V. Diplock, 2 Phill. Bccl. 267 . V. Lowell, 3 Mass. 342 . t>. Merchants' Ins. Co. 9 How. 390 (N. S.) 622 73 478 257 87, . 580 . 643 . 147 . 657 . 725 . 349 94,579,580 . 51 51 51 . 687 160, 393 . 537 . 148 . 169 162, 474 . 50 . 162 162,474,516,517 . 148 182, 477, 478 166, 167 185, 187, 539 148 . 236 185, , 532, 540 243 538 147 159, 180, 332 . 387 . 568 . 332 . 167 95, 580 . 733 . 639 . 658 . 742 162, 239 . 147 . 185 . 78 . 162 . 112 . 680 . 148 . 259 . 538 . 113 . 249 . 167 . 161 . 491 87, 90, 93, 94, 246 :, 184, 579 516 622 356 284 104 TABLE OF CASES CITED. Thayer ». Felt, 4 Pick. 356 185 V. Middlesex Ins. Co. 10 Pick. 332 104 Theobald v. Eailway Passengers' Assurance Co. 26 Eng. Law & E. 432 . 620, 733 Thomas v. Newton, Moody & M. 48 . .79 Tibeau v. Tibeau, 22 Mo. 77 ... . . . 310 Tidswell v. Ankerstein, Peake's Cas. 151 . .171 Tom V. Smith, 3 Caines, 245 ... . . . 399, 403 Towne v. Ktchbur^ Ins. Co. 7 Allen, 51 . 239, 249 Trecothick v. Austin, 4 Mason, 16 . . . . . 167 Trew V. Eailway Passengers' Assurance Co. 6 Hurl. & N. 839 . 733 Traeman v. Loder, 11 Ad. & E. 589 . . 89 Turley v. Norph American Ins. Co. 25 Wend. 374 . . 390 Turner v. Burrows, 5 Wend. 541 ... . . . 401 Tyler v. JEtna Ins. Co. 12 Wend. 507 . . 148, 401, 402 Union Bank v. Planters' Bank, 9 GiU & J. 439 . 148 Vandenheuvel v. Church, 2 Johns. Cas. 173, n. . V. United States Ins. Co. 2 Johns. Cas. 127 Vandervoort v. Columbian Ins. Co. 3 Johns. Cas. 137 . Vinton v. King, 4 AUeu, 562 Von Lindenau v. Desborough, 5 Car. & P. 353 Voorheis v. Woodhull, 4 Vroom, 482 Vos V. Robinson, 9 Johns. 195 Wade B. Scott, 7 Mo. 509 ... . Wainwright v. Bland, 1 Mees. & W. 32 Wakefield v. Martin, 3 Mass. 558 Wall V. Howard Ins. Co. 14 Barb. 383 . Walton V. Conly, 14 Wend. 67 . Want V. Blunt, 12 East, 183 Wareham v. Sellers, 9 Gill & J. 98 . Watson V. Mainwaring, 4 Taunt. 763 Watts V. Van Ness, 1 Hill, 76 . . . Wearei^ a. Ward, Hob. 134 Welch V. Mandeville, 1 Wheat. 233 V. Stewart, 2 Bland, 41 . . . Wentworth v. Tubb, 1 Younge & C. 171 . Weston V. Collins, 12 Law T. (N.- S.) 5 u. Ernes, 1 Taunt. 115 . . . Wheelock v. Pierce, 6 Cush. 288 ... Wheelton v. Hardisty, 8 El. & Bl. 232 . . . Whelan v. Whelan, 3 Cow. 537 White V. British Empire Ass. Co. 7 L. R. Eq. Cas. 394 Wiggin V. Boardman, 14 Mass. 12 . . . V. Peters, 1 Met. 127 . ... Wilbur w. Bowditch Ins. Co. 10 Cush. 446 . Williams v, Lloyd, W. Jones, 175 . . . . Wing V. Harvejr, 28 Eng. Law & E. 58, 140 . Wood V. Dwarris, 11 Exch. 493 V. Hartford Ins. Co. 13 Conn. 544 V. Worsley, 2 H. Black. 574 Woodbury Savings Bank u. Charter Oak Ins. Co. 31 Conn. Worsley v. Wood, 6 Term, 710 ... Wright V. Sun Ins. Co. 6 Law Reg. 485 Young V. White, 4 Bing. N. C. 272 . ... 6 525 162 162 . 162 288 . 166 336 . 389 . 310 147, 166, 398, 421, 433 167 . 491 . 369 94, 184, 580 . 147 166 . 538 204, 351 . 169 . 147 . 394 . 580 . 162 . 260 166, 482 . 568 205 . 162 . 532 . 243 515 .532, 641, 698 . 482 . 81 87, 516, 517, 580 . 81 87, 162, 175, 474 . 99 51 THE AMERICAN LIFE AND ACCIDENT INSEIMNCE CASES. CALIFORNIA. Alfred Briggs vs. John McCullough & Robert Dinsmore et al. (36 Cal. 542. Supreme Court, January, 1869.) Name of compamy. — The mere name of a company, as the " Pacific Mutual Life Insurance Company of California," raises no presumption that it is a company incorporated undei the laws of this state. Endtmrment policy. — A policy whereby the insurer agrees to 'pay a certain sum to the in- sured or his assigns, in ten years, or sooner in case of death, is an insurance upon life. Exempikm of life insurances from, execution. ■ — Under the statute of March 28, 1868, (Sts. 1868, p. 500,) exempting life insurances from execution, " provided, however, this exemp- tion shall not extend beyond such moneys, benefits, rights, privileges, and immunities, as have been, or might have been secured by the payment of an. annual premium, not ex- ceeding $500," it must appear that the policy is not of the excepted class; and the party claiming the exemption must show affirmatively that his case is within the provisions of the statute. The case is stated in the opinion of the court. Ramage ^ Smith, for appellants. Greorge Cadwallader, for respondent. Crockett, J. Briggs obtained a money judgment against McCullough and others, on which an execution was duly issued. After proper proceedings in that behalf, McCullough was ordered to appear before a referee appointed by the court for that purpose, to be examined touching his property. In the course of his ex- amination before the referee he admitted that he had deposited with the Pacific Mutual Life Insurance Company of California the sum of two thousand nine hundred and thirty-three dollars in gold coin, and took from said company an agreement, called an " endow- ment policy," whereby the company agreed to pay him or his as- signs, on the 6th day of July, 1878, (or sooner if he should die,) the sum of three thousand five hundred dollars in United States gold coin, together with such dividends as his deposit should earn. He also admitted that said policy was in his possession and was his 2 SUPREME COURT OF CALIFORNIA. Briggs V. McCuIIough. property ; and thereupon the referee made an order that McCul- lough deliver the poHcy to the sheriff, as property to be applied on the judgment of Briggs. McCullough refused to obey the order, which fact was reported by the referee to the court which ren- dered the judgment ; and thereupon the court cited McCullough to show cause why he should not be punished for a contempt, and on the rule to show cause, (in obedienpe to, which McCullough had appeared,) the court, after heafing the matter, found the facts to be as already stated, and adjudged McCullough to be guilty of a contempt, and entered an order that he be imprisoned, without bail, until he obeyed and complied with the order of the referee. From this order McCullough has appealed. At the hearing, a motion was made to dismiss the appeal ; but without expressing any opinioij on this point, we deem it best to dispose of the case on its merits. The counsel for McCullough claim that the policy of insurance in question is exempt from execution, under an act of the legislature of March 28, 1868, (Sts. 1868, p. 500,) which provides that " no money, benefit, right, privilege, or immunity accruing, or in any manner whatever growing out of any life insurance on the life of the debtor, made in any insurance company incorporated under the laws of this state, shall be subject to levy under attachment, execution, or under any original, mesne, or final process whatever against such debtor, or to be taken, sequestered, or reached by any proceeding supplementary to execution, or other like proceeding : provided, however, this exemption shall not extend beyond such mopeys, benefits, rights, privileges, and immunities as have been or rnight have been secured by the payment of an annual premium, not ex- ceeding five hundred dollars." In order to secure the benefit of this provision, it must appear : First. That the insurance was made by an insurance company " incorporated under the laws of this state." This fact does not appear in this case. The company which issued the policy is desig- nated in the proceedings as the " Pacific Mutual Life Insurance Company of California ; " but for aught that appears, thi? may be only the name of a private joint stock association, or, at most, of a foreign corporation doing business in this state. The mere name under which it does business raises no presumption whatever that it is an incorporated company, and certainly none that it was " in- corporated under the laws of this state ; " nor is there any other proof of the fact in the case. JANUARY, 1869. Briggs V. WCcCuUough. Second. It must appear that it is an " insurance on the life of the debtor," and it is urged that the policy in this case is not an insurance on the life of McCnllough in the sense of the statute, but is simply a covenant by the company, that in consideration of a certain sum deposited by McCullough, the company will pay him, at the expiration of ten years, or sooner if he dies, a certain other stipulated! sum, together with such dividends as his deposit shall in the mean time have earned. The term' " life insurance " is not alone applicable to an insurance for the- full term of one's life. On the contrary, it may be for a term of years, or until the assured shall arrive at a certain age. It is simply an undertaking on the part of the insurer that either at the death of the assured, when- ever that event may occur, or on his death, if it shall happen within a specified term, or before attaining a certain age, as the case may be, there shall be paid a stipulated sum. In either form it is, strictly speaking, an insurance on the life of the party. In this case the policy was to become payable o» the death of McCul- lough, provided he died within ten years, and it is to that extent certainly an insurance on his life. It is an undertaking to pay the stipulated sum if he shall die within a specified term, which is of the very essence of life insurance. The fact that the company is to pay the agreed sum at the expiration of ten years, even though McCullough shall not have died in the mean time, does not divest it of its character of life insurance. It is only a new and addi- tional element in the contract not inconsistent with its other, which is its chief constituent part, to wit : the undertaking to pay on the death of the assured within the specified term. We think, there- fore, that this was an insurance on the life of McCullough. Third. It must appear that the policy is not of the excepted class mentioned in the proviso to the statute, and the party claim- ing the exemption must show affirmatively that his case is within the provisions of the statute. To do this, it was incumbent on McCullough to establish that the benefits which he is to derive from the policy are such as might have been secured by the pay- ment of an annual premium not exceeding five hundred dollars. No effort was made to do this, and there is nothing in the case from which we can infer the fact. In the absence of all proof, we cannot presume that this or any other insurance company would have issued this or any other policy, securing to McCullough the same "moneys, benefits, rights, privileges, and immunities" which 4 SUPREME COURT OF CALIFORNIA. Briggs V. McCuUough. this policy secures, by the payment of an annual premium of five hundred dollars. Having failed to establish a case which entitles him to the exemption provided by the statute, we find no error in the record. Judgment affirmed. Mr. Justice Sanderson concurring specially : I concur in the judgment upon the first and third grounds con- sidered by Mr. Justice Crockett. See Ex-parte McCullough, 35 CaL 97. CONNECTICUT. The Mutual Benefit Lefe Insurance Company vs. Jarvis. (22 Conn. 133. Supreme Court, June, 1852.) Premium note. Action on, after lapse of policy. — The charter of a life insurance company provided that all who insured irith the company should be deemed members while they continued so insured ; also that the company might tuke the notes of the members, either in -whole or part payment of premium ; also that if losses were sustained by the company in excess of the funds on hand, the directors might assess the deficiency ratably upon such members, the assessment not to exceed the sum due on the notes, of which sixty daj's' notice was to be given ; and if the amount assessed was not paid within that time, the party in default was to cease to be a member of the company, and forfeit all preceding payments. It was also provided that if the premium in any case should exceed $50, one fourth of the amount should be paid in cash, and the balance might be paid by a secured note, subject to assessment. J. effected insurance with the company, paid one quarter of the first year's premium in cash, and gave his note for the balance. At the expiration of the tirst year he paid one quarter in cash towards the second year's premium, and gave his note for three quarters of the total premium for the first and second years, and took up his former note. The insured at the end of the second year gave up his policy, with- drew from the company, and ceased to be a member thereof. In an action on the last note, after the policy had lapsed, held, that in the absence of proof of any assessments to make np deficiencies as provided in the charter, the company were not entitled to recover; the note being regarded as a mere security for the payment of losses, upon assessments made for that purpose. Held, also, that parol evidence was admissible to show that the note, though absolute on its face, was given in connection with the charter, and was sub- ject to the incidents annexed thereto. Ellsworth, J., dissented. Action upon the following promissory note and guaranty : « $367^Jj. MiDDLKTOWsr, October 7th, 1848. " I promise to pay the Mutual Benefit Life Insurance Company, or to the order of their treasurer, three hundred and sixty- seven ■fiPis dollars, for value received, without defalcation or discount, with interest, at six per cent., payable in twelve months after date, — or sooner, if required to meet assessments by the company. "Geo. O. Jakvis." " For value received, I guarantee the payment of the above note, and stand security therefor till paid. "William Jarvis. " MiDDLETOWN, October 7lh, 1848." " Received on the within note, as principal, twenty-seven -fifg dollars. November 29, 1848," 6 SUPREME COURT OP CONNECTICUT. Mutual Benefit Life Insurance Company v. Jarvis. The defendant, on the 7th of October, 1847, became a member of said corporation, and made a declaration for the purpose of pro- curing the sum of $5,000, to be assured to him on his hfe, during the continuance thereof, and thereupon, for that purpose, paid to the agent of said company twenty-five per cent, of the annual pre- mium demanded for the assurance of said $5,000, and gave his note for the remainder of said premium', which mote was given for the sum of $183.75, and was, in all respects, except in date and amount, of the same tenor as the note in suit. The defendant having complied with the plaintiffs' terms, they thereupon issued, and, through their agent, delivered to him a pol- icy of insurance on his life for the said sum of $5,000. At the expiration of a year from the time of the defendant's becoming a member of said company and the effecting of said assurance therein, he paid to the agent of said company, for their benefit, twenty-five per cent, of said annual premium of $245, to- gether with the interest on the aforesaid first year's premium note, and took up said note, and thereupon executed and delivered to said agent the note in suit, the same being given for the seventy- five per cent, of the two years' annual premium of $245. Soon after the execution of the last mentioned note, the plain- tiffs' agent informed the defendant that, by a resolution of the company, fifteen per cent, of the annual premium notes of those members of the corporation who paid onlj' twenty-five per cent, of their annual premiums in cash, was required by the company ; and he thereupon demanded of the defendant said fifteen per cent, of the first year's premium note, and stated to him, that, by mis- take, or for the reason that at the time the note in suit was given he was not informed of the said resolution of the company on that subject, he omitted to require the payment of said fifteen per cent, at that time. The defendant objected to the payment of said fifteen per cent, in cash, unless it was required for the purpose of meeting losses which the company had suffered on their policies ; and whether it was required for that purpose was then unknown to said agent, and also to the defendant. The defendant, however, paid the sum demanded, being $27.50, and the same was by said agent indorsed on the note in suit. It was not claimed that there was any intentional fraud on the part of the plaintiffs or their agent, in inducing the defendant to become a member of, and to effect his insurance in said company ; JUNE, 1852. Mutual Benefit Life Insurance Company ». Jarvis. but it was proved by parol and was so fonnd by the court, if the evidence admitted to prove the same was admissible, — otherwise, it was not, — that the plaintiffs' agent, previous to the defendant's effecting his insurance, informed the defendant that the company gave policies of insurance on as favorable terms to the insured as any other life insurance company, and that no more than twenty- five per cent, of the annual premium would be required in cash of the assured, unless more was needed to meet losses which might accrue on policies issued. It was also found that these terms of insurance were more favorable to the insured than the terms re- quired by other companies ; but if, in addition to the twenty-five per cent, first required in cash, fifteen per cent, of the annual pre- mium notes is also required to be paid in cash, when not required to meet losses, these terms are less favorable to the insured than other companies require, and are less favorable on life policies than the terms required of those members of this corporation who pro- cure insurance upon the payment, at first, of fifty per cent, of their premiums in cash. The plaintiffs objected to all the evidence of declarations of their said agent as to their terms of insurance ; but the court admitted the same, subject to the opinion of this court. The defendant, at the end of the second year from his becoming a member of said compaiiy, withdrew therefrom and gave up his pohcy, and ceased his membership. There was no evidence to show, and th'e plaintiffs did not claim that they had sustained losses tci a greater amount than they had funds on hand sufficient to discharge, or that the company or its directors had made any assessments on the members of the asso- ciation under the ninth section of their charter ; but the plaintiffs claimed that upon the foregeing facts they were entitled to re- cover the fiill amount of the note in suit. The defendant claimed that the plaintiffs were not entitled to recover anything. The questions arising upon the foregoing facts as to what judg- ment should be rendered in the cause, were reserved for the advice of this court. Whittlesey ^ Spencer, for the plainti^s, contended, 1. That the note in suit is an absolute promise to pay in twelve months from da.te, and also to pay sooner, if required, for the specific pur- pose of meeting assessments. It will bear nO other construction. 8 SUPREME COURT OF CONNECTICUT. Mutual Benefit Life Insurance Company v. Jarvis. 2. That the ninth section of the charter contains nothing incon- sistent with the plaintiffs' claim. The provisions of this section relate only to members, and it has no application to the defendant, he having ceased to be a member when the suit was brought. It contains nothing which precludes the plaintiffs from requiring all cash, or indulging their members with such a credit as may be agreed upon. The object is, to require the directors to lay assess- ments to meet losses. The defendant would wrest it into a pro- vision to relieve a member from his express promise. , It is only intended to apply to notes given in advance, and to assessments made upon them before they become due. There is nothing either in the charter or the policy which gives color to the idea that any part of the annual premium is nominal. The regulation required the whole to be paid in cash, if $50 or less, and if over $50 it may be paid weekly, monthly, or quarterly. Whatever might be the rights of the defendant if he still remained a member, he became at once liable on his note when he ceased to be a member. The policy, which in one place acknowledges the payment of the premium, in another place provides that " in every case, where this policy shall cease, all previous payments shall he forfeited to the company.''^ Of course the note which was taken in payment be- came forfeited, as well as the cash which was paid when the policy ceased by the voluntary act of the defendant. 3. Independently of the charter or other documents in this case, the plaintiffs' claim to give to the note a literal construction is valid. The annual premium is a supposed equivalent for the annual risk. Notes are taken only as a species of investment, equally convenient for the company and its members. These notes are the resources of the company, and it would be absurd to say that a member, by voluntarily withdrawing, can annul his own note. 4. The defendant's claim also makes an absurd distinction be- tween that class of members who pay more and those who pay less than 150 annual premium. If it should be claimed that a member, after withdrawing, still remains liable on his note, but only so far as it may be assessed under section 9 of the charter, this is equally absurd ; for what security have the company that the assessments will then be paid ? They no longer have the security of the policy itself, because that has been already surrendered ; nor can they JUNE, 1852. Mutual Benefit Life Insurance Company «. Jarvis. require a new guaranty, however insolvent or worthless the old one may become. 5. The evidence offered to show the representations made by the plaintiff's' agent, being designed to qualify and vary the written contract of the defendant, is of course excluded by the general rule as to parol evidence. Bulheley Sf Tyler, for the defendant, contended, 1. That the charter and regulations show that this was a mutual company, and it is so found by the court. Mutuality among its members is there- fore essential and fundamental. But there would be no mutuality if the company can enforce and collect the note of A and wholly omit to collect that of B and other members at its pleasure. In this case there was no mutuality in the payment required. Payment here is not sought to pay losses ; it comes from a change adopted since tliis insurance was effected, which cannot operate to the ])rejudice of prior contracts. This company stands upon the same ground as regards these notes as our mutual fire companies to theirs. 2. That this company under their charter and regulations can- not take the notes of the members as investments, but only as deposit notes, and as security for the payment of assessments for losses. They can take such notes only as the charter authorizes, and can enforce them only as there provided. It cannot take them upon interest nor in the present form. 3. Payment of these notes can be enforced only by reason of assessments, and upon all alike ; and assessments can be made only for losses sustained to a greater anaount than the fund on hand. No such occasion has arisen, no such assessment has been made, tior notice given as required by the charter, and the plaintiffs' allegations are not adapted to a recovery on such grounds. Brotighton v. Manchester Water Works Co. 3 Barn. & Aid. 1, 9, New York Fire Ins. Co. v. My ^ Co. 5 Conn. 560. 2 Cowen, 679. Life ^ Fire Ins. Co. v. Mechanics'' Fire Ins. Co. 7 Wend. 31. People V. Utica Ins. Co. 15 Johns. 358. Head §■ Amory V. Providence Ins. Co. 2 Cranch, 127. Beaty v. Knowles's Lessee, 4 Pet. 168. 4. Parol evidence was admissible to show the purpose for which the note was given. HiNMAN, J. The plaintiffs' charter makes them in fact, as well 10 SUPREME COURT OF CONNECTICUT. Mutual Benefit Life Insurance Company v. Jarvis. as in name, a niutual beiiefit life insurance company. This is the fundamental principle of their organization. It is implied in their name, and is more fully expressed in the body of the charter, which gives them power to insure the respective lives of their mem- bers, and denies them the power to insure any others, by providing that all persons who shall at any time insure in or with said asso- ciation, shall, while they continue so insured, be deemed and taken as members of the corporation ; and provides for an equal assess- ment upon all the members in proportion to each member's insur- ance, to pay for losses which the company mdy not liave funds on hand to discharge. The sixth section of the charter authorizes the company to take the notes or obligations of th^ir members for the amount, either in part or in whole, of the premiums of insurance in proportion to the amount insured ; and then in the ninth section it is provided, that if it shall so happen that there shall be just claims on the corpora- tion for losses sustained, to a greater amount than they have funds on hand to discharge, the directors in such case shall proceed to assess such deficiency in a ratable proportion on the members of the association, or their lawful representatives, according to the amount of each member's insurance, "provided that such assess- ment shall not exceed the amount of the note or obligation given by each member." The section further provides, that if on due notice of his assessment a member shall neglect to pay tlie same within sixty days, he shall forfeit all claim to his policy, shall be no longer a member of the Association, and shall also be liable to the amount of such assessment in an action of debt. The only provision in the charter relative to the payment of losses, is contained in this ninth section ; and as the funds of the company are all derived from the payment of premiurtis by the members, on their respective policies, and as the members are in no event liable to be assessed to any greater amount than their respective notes or obligations, it is clear that the notes or obligations referred to in the ninth section of the charter as liable to this assessment, must be the notes or obligations which the company are authorized to take of its mem- bers for the amount, either in part or in whole^ of their respective premiums of insurance ; or, as they are called in the rules and regulations of the company, they are. the premium notes of the members. The finding shows that the note in suit was one of these premium notes ; and as the company has met with no losses JUNE, 1852. li Mutual Benefit Life Insurance Company v. Jarvis. which make it necessary for them to collect it, and has made no assessment to meet any loss, the question arises whether the de- fendant is liable upon his note, except for the purpose of meeting a loss, and then only to the extent of an assessment regularly made according to the provisions of the ninth section of the plaintiffs' charter. The note is absolute and unconditional in its terms, and as the time it had to run has expired, it appears to be due. If this was all there was in the case, undoubtedly the plaintiffs could re- cover. It might have been given for money, or it might have been given for the premium, or the portion of it that was by the agree- ment of the parties to be paid in cash, irrespective of any call for losses ; and if such was the case it ought to be paid. The finding, however, shows that such is not the case, and, on the contrary, that the understanding upon which this note was given was, that it was not to be paid unless required to meet losses. It was given for a portion of the premium, which by the regulations of the company it was the intention should be met by the profits of the business, un- less required to meet losses. In the prospectus containing the rules and regulations of the company, which was examined by the de- fendant for the purpose of determining whether he would become a member of the company, and was delivered to him for that pur- pose by the company's agent, we find one of the first regulations to be that the premium, if over fifty dollars, can be paid one fourth in cash and three fourths in a secured note at twelve months, bearing six per cent, interest, and subject to assessment if required ; or it may be paid weekly, monthly, or quarterly. It was under this regulation that the note in suit was given. It was in part a renewal of an original note given for seventy-five per cent, of a previous year's premium, and in part for the same percentage on the then accruing year's premium. Under the head of " mode of payments," we find this rule repeated in these words : " If the annual premium is over fifty dollars, he can pay one fourth in cash and three fourths in a secured note at twelve months, bearing interest at six per cent. ; which note is subject to assessment if re- quired by the directors, and of which sixty days' notice will be given. At the end of the year, if the party so desires, he may re- new the balance of the old note not then called for, by paying the interest and adding it to the next year's premium note, and paying his twenty-five per cent, in cash as at first." Agfein, the company anticipated that the members would receive back a large percent* 12 SUPREME COURT OF CONNECTICUT. Mutual Benefit Life Insurance Company v. Jarvis. age of the amount paid, in annual dividends of profits, to be de- clared upon the amount of premium ; and in order to equalize the benefits to all their members, they provide that scrip, bearing six per cent, interest, shall be issued to those who pay their premiums in full, which interest is to be paid annually; while those who give and renew their notes are not to receive scrip, but their proportion of profits is carried to their credit, and draws interest, being re- tained by the company as additional security for the notes. Again, the company say that by the system of payments adopted by them, it is easy for all who are not paupers to protect their families from want ; they are not required to pay from year to year in cash a portion of the premium, which is to remain in the hands of the company as profits, but the profits, after a few years, can be used by them to aid in the payment of their annual premium. It is not necessary to allude further to the charter and the rules and regu- lations of the plaintiffs' company. Undoubtedly there are other parts of their documents which have a bearing upon the question under consideration. Indeed, the whole tenor of them, in connec- tion with the circumstances under which the note in question was executed, goes to show that the only object of the note was to secui-e the company against losses which might be sustained while the insured remained a member of the association. The charter authorizes the company to take pi'emium notes. It provides how the losses of the company shall be assessed upon these notes. These two provisions are followed up in the regulations of the company, which provide that the parties may renew at the end of the year the balance of the old notes not called for or required by the directors. If it be asked what power the directors had to call for assessments, the answer is in the charter, " to meet losses." Indeed, in the argument of the case, counsel seemed to admit that in regard to all who continued members of the company, and chose to renew their notes from year to year, they had a right to do so. It was the expectation of the company that the twenty-five per cent, of the premium, which was required to be paid in cash, would be sufiicient to meet the ordinary expenses and pay the ordinary losses ; and the seventy-five per cent, would never be required to be paid, except perhaps a small balance which might be due at the death of the insured, after deducting the proportion of profits that might be earned'by the company, and the balance was then only to be deducted from the amount of the policy. In this way those JUNE, 1852. 13 Mutual Benefit Life Insurance Company v. Janria. who paid their premiums in fall, by receiving dividends of profits annually, would in the end "be made equal with those who only paid twenty-five per cent, of their premiums in cash ; and the company prominently held this out as an inducement to persons of limited means to insure their lives in this association ; and it is this prin- ciple alone which enables them to say in their prospectus that it is easy for all who are not paupers to protect their families from want, by insuring their lives with them ; and this makes between all the members that mutuality in regard to profits and losses which was contemplated by the charter and the organization of the company. But if the company can collect just such notes as it pleases, with- out first making an equal assessment upon all, it is clear that there is an end to anything like mutuality. It is not pretended that they do collect the great mass of their premium notes ; but the broad ground is taken that they can collect, or omit to collect any or all, as the company pleases, thus destroying all mutuality, and leaving the members who have taken their policies upon the faith that they could renew their notes from time to time, unless required to meet losses to be assessed upon all alike, at the mercy of the per- sons who may be officers of the company for the time being. It is insisted, however, that the provisions of the ninth section of the plaintiffs' charter relate only to the members of the association, and have no application to the defendant after he ceased to be a mem- ber. But the defendant was a member when he gave the note, and it was the act of giving it and paying that portion of the pre- mium which is required to be paid in cash, that continued to him his right as such member ; and we look in vain to the charter or regulations for any different rule or distinction between the notes of the members and those who have ceased to be members. The premium notes all stand upon the same footing, and the character which the charter and the regulations of the association impressed upon them at their inception, must remain, unless there is some- thing in the same documents to alter it. The difiiculty under which the plaintiffs' counsel labor, arises from their looking at the absolute terms in which the note itself is expressed. But if we take it in connection with the charter, and consider that it was not an ordi- nary note, and was never dehvered as such, but was delivered as a premium note, under the charter and the regulations of the com- pany, we at once attach to it all the conditions which are expressed in the charter and regulations. By these conditions it appears that M SUPREME CQUHT OF CONNECTICUT. Mutual Benefit Life Insurance Gompany v. Jarvis. it was never an absolute promise to pay, but was a mere security for losses, and merely subject to assessments for losses, and for nothing else ; as a conditional security for losses, there was a con- sideration for it, and to collect it for other purposes would operate as a fraud upon the maker; Again, it is said that the considera- tion of the note was the premium of insurance on the defendant's life for the year it had to run, and that thes defendant had the benefit of the insurance for that*year, and in justice ought to pay for the risk. If this was so in fact, we do not see that it would make him liable in any other way than is prescribed in the char- ter ; but enough has been said to show that this is not so. By giving the note he came under an obligation to pay such assess^ ment for losses, not exceeding its amount, as might be regularly made by the directors ; none such has been made, and so there is no obligation to pay; nor is this unjust in regard to the other mem- bers of the association. Bylboking at the tables in the prospectusj it will be seen that the real risk which the company ran, for the year previous to the time the note fell due, was but a trifle over the twenty-five per cent; of the premium which was paid in cash. If he had insured for- a single year, the premium would have been at the rate of about two per cent, on a hundred dollars, whereas, by insuring for life, they charged' him nearly five per cent, annually. The additional charge undoubtedly arises from averaging the risk among all the years that such a life is estimated to last. Still it is no less true that he paid the company in cash very nearly the full value of the risk the- company ran before his policy became void by his withdrawal ; and^ it is this fact which enables the companv safely to issue life policies upon the payment of so small a propor- tion of the premium in cash. If the members withdraw from the association, they have paid in cash the full or about the full value of the risk which the company had' run before the withdrawal'; and if they do not withdraw when the policy is paid, the company de- duct the balance of the premium notes not previously paid by a credit of profits from the sum insured in the policy. Upon this system, the company, if it has correctly calculated the proportion of the premium which it will require to be paid in cash, is always safe. Indeed; it is for its advantage^ after the life policies have run a few years, that the members should avoid their policies by with- drawal, and obviously becomes more and more so by the lapse of time. Indeedj soobvious is this, that the regulations say' that' the JUNE, 1852. 15 Mutual Benefit Life Insurance Company v. Jarvis. assured can, after a term of years, surrender the policy and re- ceive its equivalent in value ; and this seems to us a sufficient answer to the suggestion that it was a fraud upon the company to take the benefit of the policy for the year before the withdrawal, a,nd not pay the premium charged. On the trial of. the cause a question arose whether certain dec- larations made by the agent of the plaintiffs previous to and at the time when the policy of insurance was issued and the original note was given, were admissible in evidence. It does not appear, from the finding, for what precise purpose those declarations were offered. It is clear, however, that if they were offered for the purpose of explaining, or in any way altering the terms of the contract, as evidenced by the note and by the policy and the char- ter and the regulations of the company, they were not admissible for any such purpose ; but so far as they went to show that the note, though not so expressed upon its face, was a mere premium note, such as the company is authorized to take under the sixth section of the charter, and that it was delivered as such, and there- fore liable to all the incidents and subject to all the conditions which the charter annexes to notes of that description, we think the evidence was admissible for this purpose. In this aspect, it went merely to give effect to the note as an authentic instrument under the plaintiffs' charter. It is true that the operations qualify the absolute terms of the note, and annex conditions and limita- tions to it ; but this operation is not the effect of the parol evi- dence, but of the plaintiffs' charter ; the evidence merely applies the instrument to its proper subject matter. The charter gives the plaintiffs 'no power to take premium notes or obligations for any other purpose than as a security for losses ; and when it is shown that this was a premium note, these incidents are at once annexed to it ; and unless effect is given to it in this way, it becomes a note given without consideration. We therefore advise the superior court to render judgment for the defendant. In this opinion Chuech, C. J., concurred. Waite and Stoers, JJ., were absent. Ellswoeth, J. My reflections upon this case have brought me to a different conclusion from that expressed by my brethren. 16 SUPREME COURT OF CONNECTICUT. Mutual Benefit Life Insurance Company v. Jarvis. Mr. Jarvis, the defendant, applied to the plaintiffs for an insur- ance upon his life for |5,000, from the 7th of October, 1847. From Carlisle's tables (which were used by the company to ascer- tain the proper annual premium to be paid by the defendant) it appears, and it was agreed, it should be the sum of $245 ; one quarter of this the defendant paid at the time, and gave his note for the remaining three quarters, payable at the end of the year, " without default or discount," with interest. If, at the end of the year, he chose to continue a member of the company by further insuring, he could, at his request, renew the insurance for another year, by paying twenty-five per cent, of the premium for another year, and giving a new note for the amount of the former note and interest and the three quarters of another $245, the premium for the second year : so that the note now in suit consists of pre- mium and interest for two years^ insurance. This prenuum note fell due on the 7th of October, 1849, that being the date up to which he had been insured, and after which he did not ask for fur- ther insurance. It will thus be seen that the company had in- sured the defendant's life for two years, at the stipulated premium ; and how the defendant is to get rid of the payment of this earned money, by his own act simply, I have not been able to discover. The money being earned, can be recovered on the common counts as well as on the special count. By the terms of the charter, in the sixth section the company declare " that it shall and may be lawful for the officers of said cor- poration to take the notes or obligations of the members for the amount, either in part or in whole, of the premium of insurance, in proportion to the amount insured." In pursuance of this pro- vision, the directors passed a by-law, that, in all cases where the premium was over fifty dollars, the insured might pay twenty-five per cent, down, and give his note for the balance, to be paid at the end of the year, with interest, this being the termination of the risk ; and if possible to make this obligation more clear and strong, it was to be paid without defalcation or discount, and might in the mean time be called for, should the company need it to pay losses. It would seem, therefore, that the note in question was understand- ingly given as an equivalent for the risk taken by the plaintiffs for the defendant's life for the space of two years. So, from the note itself, it seems the promise is absolute and positive. The money is to be paid in twelve months after date, and sooner, if required to meet assessments. JUNE, 1852. 17 Mutual Benefit Life Insurance Company «. Jarvis. It is said, however, that the note is not absolute, and is not to be paid, as is written, without defalcation ; but is to be paid only upon future assessments. Here, I think, is the great mistake of the de- fendant's counsel. The defendant, by separating himself from the company, has deprived himself of the privilege contemplated by this provision of the by-law, so that the by-law is not at all appli- cable to the case of the defendant. The provision is intended for his benefit while he remains a member ; but he has forfeited that privilege by his separation. When he ceased to be a member, he ceased to be a subject of assessment, both by the charter and the by-laws ; for none hut members can be assessed. Were it indeed practicable to assess those who had been members, for what losses could this be done ? those that accrued during membership, or those which may accrue at any future period, upon policies issued during the time of membership ? It must be conceded that if the defendant is not liable in the present suit he is not liable at all, and yet he has been insured for the agreed premium of $490, by paying only fl22.50. In the same by-law to which the defendant refers for his deliverance from this note, we find what I am confident is the only provision appli- cable to this case. It is this : " At the end of the year, if the party so desire, he may renew the balance of the old note not then called for by paying the interest, adding the next year's pre- mium, and paying twenty-five per cent, in cash as at first." This the defendant has not desired to do ; but, on the other hand, has absolutely refused and neglected to do anything ; and yet insists he ought not to pay. He claims that he cannot be assessed be- cause he is not a member, and that he cannot be compelled to pay without assessments. Thus he would avoid the payment of a note as fairly earned and due as any that was ever presented in a court of justice. I am for holding the defendant to his agree- ment. If he will not renew his note, nor pay the stipulated twenty-five per cent., nor find satisfactory security, he ought to pay the note as it is written : upon his own showing, the assess- ment provision has nothing to do with the question. And further, the note, under no circumstances, is to be assessed. By the ninth section of the charter, in a ratable proportion the members of the association (not the notes of the memhers) may be assessed. The notes are held to be due and payable as written ; and, as I con- tend, are absolutely payable when and because the members have 18 SUPREME COURT OF CONNECTICUT. Mutual Benefit Life Insurance Company v. Jarvis. enjoyed their insurance, and cannot alter their obligations by with- drawing from the company. It must be further remembered that these notes, given for earned premiums, constitute the fund of the company to which the public Ipok for the payment of losses, but they now discover that these notes mean nothing and secure nothing. The conse- quence, too, is that a person may remain a member of the com- pany and be insured for any time, twenty or fifty years, until his premium note shall amount to thousands of dollars, and then retire from the company, repudiate his note, and, if dishonest enough, pursue the same course with another company. I would inquire what is the difference between the person who pays in cash when the annual premium is less than fifty dollars, and one who pays partly in cash and partly in a promissory note where the premium is more ? Upon the hypothesis of the defend- ant, the latter may pay one quarter of his premium and be as fully insui'ed as if he had paid the whole. This is a gross absurdity, and I cannot feel that it is at all in accordance with the under- standing of the parties, or the public, or with any principles of jus- tice or law with which I am acquainted. From the first breaking of this case I have been at a loss to learn what could be urged by the defendant in favor of this defence. Something has been said about the want of mutuality and of consideration ; but no question of this kind can arise ; for the de- fendant's life was insured for two years at the price agreed, and that surely is mutuality and consideration enough ; and I insist that the defence is nothing but a barefaced attempt to avoid the payment of a clear note of hand. The defendant was fairly and fully insured ; and had he died within the two years, his represent- atives would have been entitled to the five thousand dollars ; ^ and yet he asserts that, though he was so insured, he will not fulfil the contract as he made it. He will neither renew nor pay his note, nor remain in a condition to be assessed ; and in this defence he has succeeded, as I think^ by the prostration of the plainest principles of equity and justice. Judgment for defendant. 1 Less the amount due on the premium note ; and that too regardless of assess- ment. This indicates still further the right to sue on the note in a case like the above. JULY, 1854. 19 Bevin v. Oonnecticat Mutual Life Insurance Company. Bevin vs. The Connecticut Mutual Life Insurance Com- pany. (23 Conn. 244. Supreme Court, July, 1854.) Insurable interest. — It is necessary that a party insuring the life of another for his own bene6t should hare an interest in that life. Life policy, a valued one. — A advanced B $350 and then insured B's life, for his own benefit, in the sum of $1,000. B was to go to California and there engage in mining, and in consideration of the sum loaned by A was to divide the profits equally with B. Held, that this was a valued policy, and that A was entitled to recover the sum insured. Parol evidence. Waiver. — In an action upon a life policy, it appeared that the insured was not allowed to pass the limits of the United States without permission of the com- pany; and that indorsed upon the policy was a permit to pass from any port of the United States, in decked vessels, to and from any port in Norlh or South America, C. excepted, and to reside in California and adjacent country for one year. It appeared further that before departing under this permit, the insured told the secretary of the com- pany that he was going by way of Vera Cruz, and thence across Mexico, and that the secretary remarked that such a course would do him good, and thereupon made the med- ical examination ; that the policy was not issued or the first premium paid until some- time after the departure of A, and after the company had reason to believe that he had taken the route which he said he should and did; and that the company continued to receive the annual premiums up to the time of the loss. Held, that evidence to this effect was admissible to show the knowledge of the company as to the route taken by the assured; and that their conduct amounted to a waiver of any forfeiture. Assumpsit upon a life policy, upon the following facts : In consideration of the annual premium of thirty-three dollars and ten cents, the defendants, on the 22d day of January, 1849, executed and delivered to the plaintiff a policy of insurance on the life of George Barstow, deceased, for the sum of one thousand dollars, during the whole continuance of said Barstow's life. Said policy contained a stipulation that said Barstow should not, without the consent of the defendants previously obtained and indorsed thereon, pass beyond the settled limits of the United States, or visit those parts of the United States which lie south of the south- ern boundaries of the states of Virginia and Kentucky between the first of June and the first of November. The defendants also executed and indorsed upon said policy the following permit : . " For, and in consideration of fifteen dollars, being one and a half per cent, extra premium, charged on annexed policy No. 3,277, the within named George Barstow is hereby permitted to pass by sea, in decked vessels, from any port in the United States north of the thirty-sixth degree north latitude to and from any port in North or South America, Chagres excepted, and to reside 20 SUPREME COURT OF CONNECTICUT. Bevin v. Connecticut Mutual Life Insurance Company. in California and country adjacent for the term of one year from the date hereof. " And in further consideration of an annual extra premium of fifteen dollars, to be paid on or before the 22d day of January in every year during the use of this certificate, the insured is per-: mitted to continue so to pass by sea, and reside as aforesaid, with- out prejudice to this policy." At the stipulated time in each year, from 1849 to 1852, inclu- sive, the plaintiff paid the defendants the annual premium named in said policy and the extra premium named in said permit. On the second day of September, 1852. said Barstow died in California of the cholera-morbus ; the defendants were duly noti- fied of Barstow's death, and payment of the amount of the policy was demanded of them by the plaintiff. The amount paid by the plaintiff for premiums and permits upon said policy was one hundred and ninety-two dollars and eighty cents. On the eighth day of January, 1849, the plaintiff advanced to said Barstow three hundred and fifty dollars, under the following agreement : " Received, Chatham, Jan. 8th, 1849, of Abner G. Bevin, the sum of three hundred and fifty dollars, to be used and applied as herein after specified, according to agreement made this day. " Geoege Baestovt. " This agreement, made this eighth day of January, 1849, be- tween George Barstow, of Chatham, on the one part, and Abner G. Bevin, of Chatham, on the other part, witnesseth, that the said Barstow agrees on his part, for tlie above-named sum of thi-ee hundred and fifty dollars, to proceed as soon as practicable to Cali- fornia, and there to engage in mining and procuring gold, or to employ himself in the best and most profitable way in which he can engage, and is to keep a correct account of all his expenses, and whatever more he obtains he is to divide equal with the said Bevin ; and if there is an opportunity to remit to the United States, agrees to do so as often as he has an opportunity, and inform tl^e said Bevin of the same ; and also to inform the said Bevin how his letters can reach him, and is to be employed as above specified until he returns home, at least one year, if his health will permit." To enable said Barstow the better to perform said agreement, the plaintiff also advanced to him articles of personal property to JULY, 1854. .21 Bevin v. Connecticut Mutual Life Insurance Company. the value of nineteen dollars. In pursuance of said agreement Barstow proceeded to California, where he ai-rived about the mid- dle of May, 1849, and went immediately to the mines, and was engaged in mining and procuring gold under his agreement with the plaintiff, until his death. On his way to California, and after his arrival there, he enjoyed good health until the sickness which terminated in his death. Said Barstow, in proceeding to California, left New York on the 16th day of January, 1849, in a substantial decked vessel for Vera Cruz, making the passage from New York to Vera Cruz in four- teen days ; he remained in Vera Cruz eight or ten days, whence he proceeded by land across the republic of Mexico, and through the city of Mexico to the port of San Bias on the Pacific Ocean, a distance of nearly one thousand miles, where he arrived in March. He remained at San Bias about three weeks, when he embarked in another substantial decked vessel and proceeded by sea to San Francisco, where he arrived on the 14th of May, 1849, making no unnecessary or unreasonable delays in his journey. The route taken by said Barstow was one of the several routes of travel then pursued by persons going from the United States to California, and was not particularly hazardous, although the people of Mexico along the route were hostile in their feelings towards the citizens of the United States. He experienced no serious inconvenience on his journey from the climate or any other cause, and his health during all that time continued good. The court also found (if parol testimony was admissible to prove the same) that on the 15th day of January, 1849, during the negotiation for said policy, the plaintiff, said Barstow, and Guy R. Phelps, the secretary of the defendants, and who usually at- tended to the business of issuing policies, were together in the defendants' oiEce ; that said Phelps inquired of Barstow which route he was going to take, and Barstow replied that he was going with Captain Hutten (commander of the barque Eugenie) to Vera Cruz, and thence across the country, (the route which he after- wards took,) and said Phelps remarked that a trip would do him good, — would be for his health ; that Phelps, who also acted as the physician of the company, then invited the said Barstow into another room and there made the medical examination. Said Barstow then left said office and the next day sailed from New York on his way to California. Said policy was not issued by the 22 SUPREME COURT OF CONNECTICUT. Bevin i: Connecticut Mutual Life Insurance Company. defendants, nor the first payment received thereon, until some time after said Barstow had sailed on said voyage, and after the defendants, by reason of the facts aforesaid, had reason to believe that he had taken the route which he did take. There was no evidence that the defendants, at either of these times, or when the subsequent payments were made on said policy, made any objec- tions to the route taken by the said Barstow. To the admission of the aforesaid parol testimony the defendants objected ; and the question as to its admissibility was reserved for the consideration and advice of this court, and if said court should be of opinion that the same was admissible, then the facts depend- ing upon such testimony were found to be true, but otherwise, not proved. The court also reserved for the advice of this court the question, what judgment ought to be rendered in the case. Bulkeley, for the plaintiff, contended, 1. That it appears from the contract between the plaintiff and . Barstow that the former had an insurable interest in Barstow's life. One who is liable to a pecuniary loss by the death of any person has an insurable interest in the life of such person. 1 Phil, on Ins. 200, [§ 353, 5th ed.J Reynolds on Ins. 41. An interest, contingent in itself, that might b6 defeated, or might not have been of any value to the assured, is a good insur- able interest. 1 Phil, on Ins. 200, 201, [§ 356, 6th ed.J Lord V. Ball, 12 Mass. 115, [_post, 154.] 2. That the policy is a valued one. The extent of the interest IS the amount insured, in those cases where the interest is subject to be affected by the skill and capacity of another, there being no mode of legally ascertaining the precise amount of loss and damage. 2 Phil, on Ins. 35, 441, [§ 1217.] Lord v. Ball, 12 Mass. 115, [pos^, 154. j Reynolds on Ins. 42. 3. That Barstow, by the terms of his permit, had a right to take the route he did. The printed form of permit was adapted to the terms of the agreement between the parties. He had a right to go to and from any port in North and South America, Chagres excepted, and to reside in Califoi-ria and the country adjacent. Mexico being adjacent he could reside there, and could certainly pass from one port to another of that country. 4. That if it were a violation of the policy and permit for Bar- stow to take the route he did, the company have waived a compli- JULY, 1854. 23 Bevin v. Connecticut Mutual Life Insurance Company. ancfe with the conditions of the policy ; that having received the premiums from time to time, knowing the route he took, they are estopped from claiming a violation of the condition, and that parol evidence is admissible to prove such waiver and estoppel, and to explain words of indeterminate meaning. Allen v. Vt. Ins. Co. 12 Vt. 366. 1 Phil, on Ins. 490, 586, [§ 904, 6th ed.] Frost v. Saratoga Ins. Co. 5 Denio, 154. 3 Wash. C. C. R. 159. 20 Conn. 563. 17 Conn. 853, 361. 1 Greenl. Ev. § 228. Fish v. Huhhard's Adm'rs, 21 Wend. 651. 21 Conn. 451. W. D. Shipman, for the defendants, contended, 1. That the plaintiff had no insurable interest in the life of the deceased, and therefore cannot recover. 2. That the condition that the subject should not go beyond the settled limits of the United States is a warranty, the violation of which, by the terms of the contract, renders the latter null and void. 1 Phil. Ins. §§ 65, 764, [891, 5th ed.] 3 Kent's Com. 288. Wood V. Hartford Fire Ins. Co. 13 Conn. 633. The aiendale Woollen Company v. The Protection Ins. Go. 21 Conn. 19. Shel- don ^ Co. V. Hartford Fire Ins. Co. 22 Conn. 235. Jennings v. The Chenango Mut. Ins. Co. 2 Denio, 75. 3. That the condition, being in the nature of an express war- ranty, any variation, whether material to the risk or not, avoids the policy. Newcastle Fire Ins. Co. v. W Mgrran, 3 Dow, 262. Pawson V. Watson, 2 Cowper, 785. Blackhurst v. CocJcell, 3 Terra 860. 1 Phil. Ins. § 893, [§ 866 et seq., 5th ed.] 1 Term 343. Jefferson Ins. Co. v. Cotheal, 7 Wend. 72. Duncan v. Sun Fire Ins. Co. 6 Wend. 488. Fowler v. Mtna Ins. Co. 7 Wend. 270. 4. That before the subject could leave the settled limits of the United States without forfeiting his policy, he must have obtained the consent of the company. This being in writing, and indorsed on the policy, cannot be enlarged or varied by parol. 1 Greenl. Ev. § 275, et seq. Warren v. Wheeler, 8 Met. 97. Vandervoort V. The Columbia Ins. Co. 2 Caines, 156. Cheriot v. Barker, 2 Johns. R. 346. As the testimony offered by the plaintiff consists of the oral declai'ations of the, parties made prior to the execution of the con- tract, parol evidence of these \%ould be inadmissible in an action upon any written contract, there being no ambiguity or imperfec- tion in the language of the instrument, and they are especially so in one brought on an insurance policy. Jennings v. Chenango Mut. 24 SUPREME COURT OF CONNECTICUT. Bevin v. Connecticut Mstual Life Insurance Company. Ins, Co. 2 Denio, 75. Crlendale Woollen Co. v. The Proteotion In». Oo. 21 Conn. 19. Parks v. General Int. Ins. Oo. 5 Pick. 34. Whitney v. Haven, 13 Mass. 172. Atherton v. Brown, 14 Mass. 152. Wiggin v. Boardman, 14 Mass. 12. Flinn v. Tohin, 1 Mood. & Malk. 367. Alston v. Mechanics' Mut. Ins. Oo. 4 Hill, 329. Ellsworth, J. Several questions of some practical importance are presented for our decision in this case. "We have occasion to decide only some of them in order to make an end of this case, and shall, therefore, allude to such only with particularity. It is said, first, that the plaintiff had no interest in the life of Barstow when the policy was obtained, and if any, not the f 1,000 stated in the policy. In marine and fire insurances the questions and rules for ascertaining interest are in general well settled and of every-day occurrence. In them the rule is that the contract of insurance is one of indemnity only, recognizing policies being held to be illegal and void. The same is true, we suppose, in insurance on lives. In England the statutes of George II. and George III. declare all policies of insurance without interest to be null and void, and although the phraseology of the statute of George III. has given rise to distinctions there, in this country we hold the English statutes to be in affirmance of the principle of the common law, that policies of insurance are contracts of indemnity only. Without deciding what is an insurable interest in the life of another in every case, — whether it must be one of a pecuniary value or property which the law recognizes as property, or may be something less or different, as the interest in one's relative or in the life of another person, — in this case we have no doubt there was an insurable interest, and one which the parties could well value to the extent it was valued in the policy. The plaintiff had advanced to Barstow the sum of three hundred dollars, besides articles of personal property, to enable him to go to California and there labor for at least one year, and to account to the plaintiff for one half of his gains in that business. He was the plaintiff's debtor and partner, giving to the plaintiff an interest in the contin- uance of his life, as by that means, through his skill and efforts, the plaintiff might expect not only to get back what he had ad- vanced, but to acquire great gains» and profits in the enterprise. All the books hold this to be a sufficient interest to sustain a policy of insurance. As to the value of this interest, we think it must be held to be what the parties agreed to consider it in the policy. This JULY, 1854. 25 Bevin v. Connecticut Mutual Life Insurance Company. was the sum asked for bj' the plaintiff, and which the defendants agreed to pay in case of death, and for which they were paid in the premiums given by the insured. The policy must, we think, be held to be a valued policy. If otherwise, and the question of inter- est is open for proof on the trial, to be determined by the estimate which jurors may put upon the value of Barstow's life under the- circumstances, the policy may afford an inadequate and precarious security. Who can tell what the plaintiff would have gained if Barstow had lived and labored under his contract in California ? The plaintiff declared in the policy that he had an interest in the life of Barstow of $1,000 ; the defendants received this declaration as true, and made it the basis of the insurance and of their pre- mium ; now, without deciding that such a declaration is in all cases conclusive as to the interest or damage, we hold that in cases like the present, where there is not a definite and specific interest, and much is to depend upon the character and continuance of the enter- prise, such declaration, if honestly made, is the agreed value of in- terest. The defendants knew what was claimed to be the interest of the insured ; what the damages were estimated to be in case of death, and what amount the plaintiff wanted to secure ; and the defendants agreed to this sum. It would be against good faith, and against the meaning of the parties, for the defendants now to refuse to pay as they agreed. In marine insurance, policies on profits always are, and must be of necessity valued. Mumford v. Hal- let, 1 Johns. R. 433. In Lord v. Ball, 12 Mass. 115,^ a sister obtained an insurance on her brother's life, about going to sea, on whose generosity and as- sistance she was dependent for support. She recovered the whole sum ; no question seems to have been made as to the amount, but only whether it was an interest which the law would recog- nize. So, in every case where a person on his own account insures the life of a relative, if the sum named in the policy is not to be the rule of damages, we inquire what is ? The impossibility of satis- factorily going into the question in most cases, and especially where there is nothing to guide the inquiry and everything is un- certain, would lead us to hold that a policy like this is a valued policy, as most consistent with the understanding of the parties and the principles of law. 2 Phil. Ev. 52.^ Buny. on Ins. 24. 3 Kent's Com. 219. Ang. Life Ins. 321. 12 Mass. 118.3 1 Post, 154. 2 3 Phil. Ev. 235 et seq., 4th Am. ed. 3 Post, 154. 26 SUPREME COURT OF CONNECTICUT. Bevin v. Connecticut Mutual Life Insurance Company. The next objection is that the plaintiff has failed to keep one of the warranties which he was to keep, and therefore cannot recover. The warranty alluded to is that Barstow had by the policy no right to go out of the United States, and that he only obtained leave to go to California, and reside in a particular way, "to pass by sea in decked vessels from any port in the United States to and from any port in North and South America, Chagres excepted, and to re- side in California." The defendants insist that he went across the country, whereas he should have gone round the cape. We are unwilling to yield to this objection, so entirely foreign to the merits of the claim, unless compelled to by the clear import of the license given, for Barstow reached California in perfect health in due time, and had resided there some three years when he died of a sudden sickness unconnected with his passage across the country. The members of the court are not agreed in the exact construction to be put on this permit, and as there is another ground on which a ma- jority, if not all of us, are agreed, we shall pass this point of con- struction and dispose of the case on another ground. It appears that before the policy was filled up the company were told that Bar- stow was going across the country ; and afterwards they knew he had so gone and had reached California in safety. They knew, too, he was residing there, and from year to year for three years they suffered the plaintiff to pay the entire enhanced premium for such residence there upon the idea that the insurance was still in force. They were willing then to overlook the breach of warranty, if any it was, and they virtually renewed the insurance by taking the entire premium until Barstow's death. Now, between man and man in any ordinary transaction of business, such an objection would create surprise, and we should say it was unreasonable and untenable, and that this subsequent taking of the premium was a complete waiver of the objection even if well founded at first. Suppose the plaintiff had warranted that Barstow should sail by the first of January and -he did not until the fifth, but reached California in health, and after that the company had received the stipulated premium for years, with full knowledge of this fact, while he was residing there under the permit ; would they not be liable on the policy ? To prove the knowledge of the defendants the parol evidence was offered, and, as we think, very properly, not to explain or qualify the written contract, there being no explainable ambiguity, SEPTEMBER, 1856. 27 Sheldon v. Connecticut Mutual Life Insurance Company. but to prove that the defendants had knowledge at all times of the fact that Barstow went to California across the country, and that they subsequently acted in view of such knowledge, inducing the plaintiff to continue to pay premiums. We advise judgment for the plaintiff. In this opinion the other judges concurred. Judgment for the plaintiff , Note.— The language of the first part of the opinion in this case, to the effect that the contract of life insurance is one of indemnity, would give the impres- sion, but for the rest of the case, that it is in conflict with the general authorities on that point. And so far as the expression referred to is concerned, it is thus in conflict. In the point actually decided, however, that an indefinite and un- certain interest is sufficient basis for the contract of life insurance, and that the policy in such case is valued at the sum insured, the case is in harmony with the general doctrine. And it is altogether probable that the court would not have said what they did in respect to indemnity could they have had the light of the more recent authorities. These are collected, and the subject of indemnity and insurable interest discussed, in the note to Lord v. Dall, post, 154. Sheldon vs. The Connecticut Mutual Life Insurance Com- pany. (25 Conn. 207. Supreme Court, September, 1856.) Parol evidence. Waiver. — In an action upon a life policy, the following stipulation appeared upon the application, but which was not part of the , policy, signed by the party claimed to have been insured: "And I do further agree that the assurance hereby proposed shall not be binding on said company, unfiil the amount of premium as'stated therein shall be received by said company, or an accredited agent." ' Evidence , was also offered and received that the company's agent solicited the insurance of the applicant, and . that he declined on the ground that he had not the means; that the agent then agreed to provide for the cash portion of the premium himself, and stated that the applicant might at some convenient time thereafter make his note paj^able to the company for half the. first pre- mium, and pay the other half to himself, the agent. Relying upon this, and induced thereby, he accepted the offer, and made application. The agent then ' agreed that if the application should be accepted the insurance should take immediate, effect, as if the pre- mium had in fact been paid by the applicant. The application was accepted, and a policy issued and sent to the agent, and by him countersigned as required, but retained by him, and upon the death of the insured, within, the period of insurance, returned to the com- panj'. Beld, that this evidence was properly admitted as showing the manner of payment of premium agreed upon, the policy not providing for an}' particular mode. Held, also, that this might be considered as a waiver of the stipulation, whereby it was declared that the insurance should not be binding until the premium should be received by the com- pany or their agent. Wode of payment, — Whether or not an agent has authority to dispense with the usual mode of, payment and substitute another, is a question of fact, and not; of law. Waiver. — The court below instructed the jury that the question whether there was a waiver of the right of the company to Insist upon the giving of the premium note before 28 SUPREME COURT OP CONNECTICUT. Sheldon v. Connecticnt Mutual Life Insurance Company. the policy should go into effect, depended upon the same principles of law and fact as the question respecting the immediate payment of the money. Eeld, that this was correct. When contract complete. Delivery. — To the objection that there could be no insurance be- cause there had been no delivery of the policy, it was AeW, that an instruction was cor- rect, that when application has been made and approved and accepted, and a policy made and executed, and notice of such execution given to the assured, — facts in proof in this case, — the contract of insurance is complete, and the applicant is entitled to the policy. Action upon a life policy by the administrator of the assured, Nathaniel Curtiss. The defendants pleaded the general issue, with notice that they should offer evidence that the insurance premium had never been paid, and the policy never executed or delivered. The cause was tried at the term of the superior court for the county of Hartford holden in December, 1855. On the trial the plaintiff admitted that the policy of insurance set forth in the declaration had never been in the actual possession of himself or of Curtiss, but that in pursuance of a contract made by Curtiss with the defendants, through their agent D. W. Nor- ton, the defendants issued and executed said policy at their o£Bce in Hartford, on the 14th day of September, 1849, and on the 18th of the same month forwarded it to said Norton at Suffield, where he and Curtiss then resided ; and on the s*me day Norton counter- signed it, but retained it in his hands until the 27th of October ; that, a rule of said company required their agents to return all poli- cies not taken by the insured within thirty days ; that Curtiss died at Suffield on the 21st day of October, 1849 ; that upon the re- quest of the secretary, Norton returned said policy to the office in Hartford on the 27th day of October, when the signature of the president on it was erased. The policy, and the application and certificates, were in the usual form, and were read in evidence. Following the application was a declaration signed by Curtiss, which contained the following stipulation : " And I do further agree that the assurance hereby proposed shall not be binding on said company until the amount of premium as stated therein shall be received by said company, or an accredited agent." The application and certificates were made at Suffield and then delivered to Norton, who forwarded them to the defendants at Hartford. The plaintiff further offered evidence to prove that at the date of said application Norton was the general agent of the defend- SEPTEMBER, 1856. 29 Sheldon v. Connecticut Mutual Life Insurance Company. ants for the purpose of making contracts of insurance on the lives of persons in Suffield and its vicinity, and as such agent was au- thorized to and did make the contract of insurance on which the plaintiff claimed said policy was applied for. The defendants denied that Norton was their general agent to make contracts of insurance, and that he had any authority to make any waiver on their behalf, or to deliver a policy to the in- sured until said premium should be paid, or until one half thereof should be paid, and the other half secured by the promissory note of the insured, payable to said company on interest, or that he had any other power or authority except as aforesaid. It was admitted that no note for any part of the premium on said policy had ever been given by Curtiss, and the defendants claimed that no part of said premium had ever been paid or of- fered to be paid by said Curtiss or by the plaintiff, and that said policy had never been delivered and had never taken effect, and that no contract of insurance binding on said company had ever been made. The plaintiff also claimed, and offered evidence to prove, that, according to the usage and course of business between Norton and said company, it was nc* required or expected that the identical money received by Norton for premiums on insurances effected through his agency should be paid over to the defendants, but that it should be and generally was, when received, mixed by Norton with his other funds, and credited to said company in a general ac- count kept by him of receipts and payments growing out of his agency, and that the usage and practice -was for Norton from time to time to make general payments to said company on account, without reference to axij particular premium by him received ; said company and Norton making occasional settlements, when said account was adjusted and the balance ascertained and paid. That after the appointment of the plaintiff as administrator on Curtiss' estate, and more than ninety days after said Curtiss' death, and before the commencement of this suit, he went to the office of the defendants in Hartford prepared to pay, and offered to pay to the agent of said company the whole amount of the premium due on said policy, which said agent refused to receive ; and that he then demanded the amount of said insurance on Curtiss' life, which said agent refused to pay, because, as he claimed, said policy had never been delivered and never took effect. 30 SUPREME COURT OF GONNECTIGUT. Sheldon v. Connecticut Mutual Life Insurance Company. That before making said application, Norton, professing to act as the agent of, the defendants, and to be authorized in their behalf to •make , contracts for insurance, applied to Curtiss and solicited him to obtain an insurance on his own life in said company through the- agency of Norton, and to induce Curtiss to make an application for such insurance, informed him that his inability to make imme- diate payment of the premium need be no bar to his immediate in- surance, and proposed that if lie would then make application for such insurance, and if his application should be accepted by the company at Hartford, his insurance should upon such acceptance immediately take effect, and that he, Norton, would provide for the cash portion of the premium himself, so that the omission of Curtiss to make immediate payment should not prevent the im- mediate operation of the policy and his immediate insurance, and that for one half of said premium Curtiss could at some conven- '. lent time thereafter make his note payable to the company, and pay the other half to. said Norton., And that Curtiss, relying upon said information and induced thereby, acceded to said proposal, and agreed to take through Norton, as the defendants' agent, the insurance proposed upon the terms aforesaid; and that he then made an application for insurance upon 1# life, and thereupon Nor- ton agreed that if his application should be accepted, his insurance should immediately take effect, as if the premium had in fact been paid by him ; that Norton would himself advance, or otherwise provide for. that part of the premium which was to be paid in cash, to be repaid by Curtiss to Norton at some convenient time thereafter, at which time Curtiss should also execute his note to the defendants for the other half of said premium. The plaintiff claimed that such agreement with Norton was equivalent to and in effect the same as an actual payment of said premium to Norton, or if not, that it amounted to a waiver on the part of the defendants of their right to insist upon the payment of said premium before said policy should take effect ; and that Nor- ton had authority to make such agreement and waiver ; and to prove that such arrangement and agreement were made, the plaintiff offered the testimony of Dr. Samuel B. Low, who, as the plaintiflF claimed, was present at the making thereof. To the admission of this testimony the defendants objected upon the ground that the same was contradictory to said written appli- cation, and that if such arrangement or agreement were in fact SEPTEMBER, 1856. 31 Sheldon v. Connecticut Mutual Life Insurance Company. made they were merged in the written contract between "said com- pany and said Curtiss, and constituted no part of the contract be- tween said parties. But the court overruled the objection and ad- mitted the testimony. The defendants contended that no such arrangement as was claimed by the plaintiff was in fact made. Norton testified that he had received from them no instructions which differed from those of a printed circular, which embraced the following clause : " You are not authorized in any case to receive the premium or any part thereof at the time of making the application, and not until the policy is received by you. Our policies are not binding on the company until the agent through whom they are issued countersigns them and receives the premium. And in all cases, therefore, when there is any change in the risk by reason of sick- ness or accident, between the time of making the application and the receipt of the policy by you, you will withhold the policy and report the circumstances to this office. The company reserve the privilege in all cases of delivering the policy or not, as they please, after it has been sent to the agent ; as the issue depends only upon the delivery by the agent, and receipt of the premium If from any cause policies are not taken by the parties applying, but remain in your hands for thirty days, you will return them to be cancelled." Norton further testified that those instructions had never been dispensed with by him, that no part of the premium in the present case had ever been paid to him, that said policy had never been delivered to Curtiss, and that the agreement between him and Curtiss regarding the note to be made to him for the cash part of the premium, was an individual transaction between him and Cur- tiss, with which the defendants had nothing to do ; that he had never delivered any policy of the company until the whole pre- mium was paid as the rules of the company required, except in a few instances, when by a private arrangement between him and the applicants he had himself advanced the cash part of the pre- mium for them, and taken their notes for the same payable to him- self individually, and their premium note to the company upon the delivery of the policy. And it appeared that by the regulations of the company the premium notes given to the company were required to be on interest, and were liable to assessments. The plaintiff offered no direct evidence that the defendants 32 SUPREME COURT OF CONNECTICUT. Sheldon v. Connecticut Mutual Life Insurance Company. knew of- suck arrangements as Norton admitted, unless his knowl- edge was to be deemed their knowledge. But the plaintiff claimed that it being admitted that Norton had for several years been ex-' tensively engaged as their agent, from that and from the other evidence in the cause, their actual knowledge and approbation of such acts of Norton, as well as of his practice to make such ar- rangements, ought to be inferred and found by the jury. And the plaintiff, in his cross-examination of Norton, inquired whether there had not been between him and Curtiss a practice under which fire insurance premiums had been charged by him to Curtiss in his general account, and applied upon Curtiss' account against Norton for Curtiss' work and other ordinary items of ac- count. To this question the defendants objected on the ground that the transactions or usages of Norton, as the agent of other insurance companies with Curtiss, ought to have no effect upon the rights of the defendants. But the court overruled the objec- tion and permitted the inquiry to be made, and Norton answered that he had no recollection of any such transaction. As to what transpired or was said at the interviews between Norton, Curtiss, and Low, testified to by said Low, Norton and* Low were the only witnesses, and Norton was the only witness as to what transpired or was said at the interview between Norton and Curtiss, at the time when said policy was claimed by the de- fendants to have been tendered to and refused by Curtiss. Other testimony was introduced as to the extent of Norton's authority as agent, and among other things the defendants intro- duced the printed circular before mentioned ; and the plaintiff in- troduced simdry printed instructions, and claimed that the same had been delivered to Norton for public circulation, and had been circulated by him, and that Norton, had long before the application of Curtiss been accustomed to make arrangements with appli- cants for policies like that which the plaintiff claimed was made with Curtiss, and that the defendants were informed thereof, and made no olDJection thereto. The plaintiff claimed that the defendants had held out Norton to the public as their general agent, with full power to make such agreements as the plaintiff claimed had been made with Curtiss, and that the defendants were bound and concluded by such agree- ment. That under such agreement said policy, having been executed SEPTEMBER, 1856. 33 Sheldon v, Connecticut Mutual Life Insurance Company. by the company and countersigned by Norton, became in the hands of Norton immediately an effective instrument for the use and benefit of Curtiss in the same manner as if it had been in fact dehvered over by Norton into the actual manual possession of Cur- tiss, and was in contemplation of law in the possession of Curtiss, if such possession was necessary to give it existence and effect. The defendants claimed that there never had been any waiver of the payment of the premium by them, before said insurance should become binding ; that inasmuch as the premium had never been paid, the contract of insurance was not binding upon them ; that the only contract between them and Curtiss was that which was formed by the acceptance of the application of Curtiss with the accompanying certificates ; that if Norton had the power to waive, and had waived the payment of the cash part of the pre- mium before said insurance should take effect, this constituted no waiver or dispensation of the necessity of paying tiie part which was to be paid by his note before said insurance should take effect; and also that said policy had never been delivered, and that no ac- tion could be maintained thereon until a delivery of the same. The court instructed the jury as follows : " In order to give ef- fect to a contract of insurance it is not indispensably necessary that the policy should be actually delivered to the assured ; but when an application has been made, and that application has been approved of and accepted by the company or its proper agents for that purpose, and a policy has been thereupon made, executed, and completed, and notice of such execution given to the assured, the contract of insurance is complete, and the applicant is entitled to the policy. In this case the great question is, was a complete con- tract made. " This, like all other corporations, speaks by its agents ; so that when we inquire, What have the defendants done in relation to this contract ?, it is equivalent to the inquiry what did Norton wit^jin the scope of his authority as the agent of the defendants, do in the matter. It is admitted that Norton was the general agent of the company for the purpose of procuring applications, and delivering policies and receiving premiums. And the plaintiff claims that he had as the agent of the company, and in its behalf, authority to make the contract in question. " The defendants deny that he had any authority to make such contract so as to bind them. Whether he had or not is a question 3 34 SUPREME COURT OF CONNECTICUT. Sheldon v. Connecticut Mutual Life Insurance Company. ■ for the jury, and upon the whole evidence you are to determine what was the authority of Norton in this case. " If you find the contract to be that Norton agreed that he would take the credit of Curtiss, and regard himself as having re- ceived the premium, making himself the debtor of the company for the amount, and Curtiss his debtor, and that nothing further remained for Curtiss to do ; then I think the insurance took effect. Norton would thus become the debtor of the company and Curtiss the debtor of Norton, and the company would be bound by the poHcy from the time it was returned to and countersigned by Nor- ton, and notice given to the plaintiff. But if the contract was that Curtiss should give Norton his note before the insurance would attach, then the company could not be bound until the note was given. It seems to me that the case must turn upon the inquiry, what was the contract between Norton and Curtiss about the im- mediate payment of the premium, and whether what Norton said amounted to a waiver of such immediate payment. " The defendants claim that the plaintiff cannot recover, be- cause the premium has never yet been paid in any way, and it is agreed that it has not in fact been paid ; but the plaintiff claims that he has since his appointment as administrator on said Curtiss' estate offered to pay said premium, and has done what in law is equivalent to such payment. And if you find that the plaintiff, heing the administrator on Curtiss' estate, applied at the defend- ants' office prepared to pay, and offered to pay the premium, or, if being so prepared, he was informed by the authorized agent of the company that the paj'ment of the premium then would make no difference, that the loss would not be paid because the policv had not been delivered, or had not attached,, it was in my opinion a waiver of the right of the company to refuse to pay the loss be- cause of such non-payment. '_' The parol agreement of Norton relative to the payment of the premium, in one sense forms no part of the final contract between the company and Curtiss, but in connection with the conduct of the parties and the evidence of the usage and practice of the agent, if brought home to the knowledge of and acquiesced in bv the company, it is evidence properly received for the purpose of showing a waiver by the company of their right to insist upon a strict performance of their regulations in regard to such premium. Whether there was a wnivp.r of the right of the company to insist SEPTEMBER, 1856. HS Sheldon v. Connecticut Mutual Life Insurance Company. upon the giving of the premium note before the policy should go into effect, is a question depending upon the same principles of law and of fact as the other question regarding the immediate payment of the money." The jury returned a verdict in favor of the plaintiff, and the defendant moved for a new trial. Mungerford ^ W. B. Shipman, (with whom was jPhilleo,') in support of the motion. 1. Parol testimony to prove the supposed agreement between Curtiss and Norton was not admissible, and ought not to have been admitted. The Grlendale Woollen Company v. Protection In- surance Company, 21 Conn. 19. Higginson v. Ball, 13 Mass. 99. Stachpole v. Arnold, 11 Mass. 27. Warren v. Wheeler, 8 Met. 97. Jennings v. Chenango Insurance Company, 2 Denio, 75. Logan v. Bond, 13 Ga. 192. Chase v. Jewett, 37 Maine, 351. 2. Said supposed parol contract did not constitute any part of the real contract between the parties, and the court ought to have so charged the jury, and in conformity with the claim made by the defendants. 3. The court erred in charging the jury, that if they found the contract to be that Norton agreed that he would take the credit of Curtiss, and regard himself as having received the premium, mak- ing himself the debtor of the company for the amount, and Cur- tiss his debtor, and that nothing further remnined for Curtiss to do, that then the insurance took effect. And also in this, that the parol agreement of Norton relative to the payment of the pre- mium, in one sense formed no part of the final contract between the company and Curtiss, but in connection with the conduct of the parties, and the evidence of the usage and practice of the agent, if brought home to the knowledge of and acquiesced in by the company, it was evidence properly received for the purpose of showing a waiver of the strict performance of the regulations of the company in regard to such premium. 4. The court erred in charging the jury, that to give effect to the contract of insurance it was not indispensably necessary that the policy should be actually delivered to the assured, but that when an application had been made and was approved of by the company or its proper agents, and a policy was thereupon made, executed, and completed, and notice of such execution given to the assured, the contract of insurance was complete, and the applicant 36 SUPREME COURT OF CONNECTICUT. Sheldon v. Connecticut Mutual Life Insurance Company. was entitled to the policy ; and in omitting to charge the jury as claimed by the defendant, that a policy, to be effectual as such, must be actually or constructively delivered by the party executing the same, with a view to its taking immediate effect without any other or further act, in order to render it a valid instrument, and the charge of the judge is no proper answer to the claim made. Delivery is always necessary to give effect to a deed. T. 0. Perkins ^ Pardee against the motion. 1. The court admitted proof of the contract made with the as- sured by the defendants' agent, not in any manner to contradict or vary the policy, but to prove that the " payment " mentioned therein had been made to the acknowledged satisfaction of such agent. (1.) This proof was admitted in connection with evidence that such agent had full power in the premises, and with the ac- knowledged fact, that although the whole premium is referred to and covered by the single word " payment," yet, as such agent, he was authorized to give credit ; thereby showing that, as to one half of the premium, the liability of the insured was regarded by the defendants as payment. (2.) Parol evidence of the form which a payment may assume is not a variance or contradiction of a con- tract or deed, in which a payment is mentioned as a suni of monej in hand paid. (3.) The agent's agreement to waive immediate cash payment, in contemplation of law is a payment, and as such answers all the terms and requirements of the policy, and the jury rightly found the fact of payment under the instructions given by the court as to what facts, if the jury should find them, would constitute a payment. 2. The question respecting the extent of Norton's power as the agent of the defendants, was properly submitted by the court to the. jury as matter of fact, with proper instructions as to the law touch- ing facts. Story on Agency, §§ 73, 105, 126, 183. 3. The delivery of a policy of insurance is not indispensable to its validity. Loring v. Proctor, 26 Maine, 18. Blanchard v. Waite, 28 Maine, 51. Palm v. Medina Mutual Insurance Com- pany, 20 Ohio, 529. Ellsworth, J. It being agreed that the contract for insurance would not be binding until the premium of insurance was received or provided for, and there being no policy delivered to prove that this was done, it became necessary, on the trial below, for the plaintiff to show that the contract was perfected, and that the pre- SEPTEMBER, 1856. 37 Sheldon v. Connecticut Mutual Life Insurance Company. cedent condition had been complied with, so that his intestate was entitled to demand and have the policy as agreed. This the plain- tiff undei'took to show, and offered evidence to prove that Norton, the agent of the defendants, (who did this business and the gen- eral business of insuring for the defendants in Suffield, where the parties lived,) solicited Curtiss, tlie intestate, to become insured in their ofSce ; that Curtiss declined being then insured and wished delay, because he had not money on hand to pay the premium, as the terms of the policy required ; that finally Norton agreed that he would provide for the premium himself, and it should be con- sidered and held to be paid to the company, and the note for the balance be given afterwards, and that the contract should be held to be good when the proposals were accepted in Hartford, and the policy should be made out at a future time, bearing date from that day. It would seem as if this arrangement, if made out by the proof to the satisfaction of the jury, was material to the plaintiff's case, and would establish the validity of his claim to a proper policy of insurance. This arrangement is one of daily occurrence where parties agree for an immediate insurance, but time is given for the payment of the premium and the execution and delivery of the policy of insurance ; the thing to be done is agreed to be considered as done, so that the obligation to pay the premium is the payment, and the obligation to make out a policy is virtually the policy itself. Now the precise objection of the defendants is this : the provis- ion " premium paid " being in the written proposals, it is said that parol evidence cannot be received to show that the insurance was to take effect before the premium was received, as this would be to •vary the terms expressed in the writing. But this is not so. The principle of law is well enough stated, but -clearly it has no appli- cation to this case. The evidence does not contradict or vary the writing, but is in harmony with it ; for the mode of payment, or its legal equivalent or satisfaction, is no part of the writing as claimed ; which is the real question in dispute. Nor is the parol agreement in the nature of a previous conversation merged in a written contract afterward made, and therefore to be held to be the exclusive evidence of what the parties have finally settled upon. The mode of payment, strictly, need not be any part of the contract of insurance ; it may be collateral to it, and prov- able as made before or after, or at the time of the writing, unless 88 SUPREME COURT OF CONNECTICUT. Sheldon v. Connecticut Mutual Life Insuvance Company. the writing declares what the mode should he, which this does not. We might go further, and deny that the words in the proposals, " and I do further agree that the assurance hereby proposed shall not be binding on said company until the amount of premium as stated therein shall be received by said company, or an accredited agent," make the payment of t^e premium a condition precedent, as was claimed in the argument, because those words are no part of the policy either by recital or reference. They are part of a writing following the proposals, which says "that the preceding proposal, answer, and statement marked A is correct, and shall be the basis of the contract between the parties." The paper referred to states certain facts, such as the age of the applicant, his place of residence, his occupation, his health, &c., which statements must be true or the policy never takes effect ; but the clause under consideration is not a proposal, answer, or statement ; it is a collat- eral agreement, fixing the time when the risk shall commence bj fixing the time of payment of the premium. Besides, it is every day's experience, and our reports are full of such cases, for persons to be held to have waived provisions and conditions inserted in contracts for their own special benefit, and therefore to be estopped from insisting upon that which is incon- sistent with what they have said and done to affect others. The defendants were called upon to speak at the proper time, and can- not now, after their silence or their cooperation, be permitted to disappoint others, who had a right to give them their confidence at the time. Curtiss supposed the premium was agreed to be con- sidered as paid by the agent when the proposition for insurance was accepted at Hartford. The jury have found that both he and Norton so imderstood it. And although the business was not done with proper care and attention, yet it was in fact done, and done at the request of the agent, who proposed to Curtiss to have the contract closed at the time and in the manner it was closed ; and we cannot permit the defendants to deny or repudiate the act of tlieir agent, if indeed he was their agent in the transaction ; which brings us to the next point in the argument. The defendants admitted that Norton was and had been their general agent for getting insurances in Suffield for many years be- fore ; and further, his manner of doing their business, the jury find, was well known to them, and not disapproved of by them ; SEPTEMBER, 1856. 39 Sheldon v. Connecticut Mutual Life Insurance Company. but the defendants deny his authority in this instance to dispense with the payment of the premium on the making of the contract. This is a question of fact, and the existence and extent of this au- thority is just the question which the plaintiff claimed should go to the jury, and so the court viewed it in their charge to the jury ; and in the course taken by the court we cannot see any error or ground of complaint. The plaintiff insisted that it being admitted that Norton was the general agent of the defendants, as already stated, the jury should infer from that fact, and much other evi- dence which was before them, that he was fully authorized to do as he had done. They alluded particularly to the printed circular and commission sent by the defendants to their agents throughout the country, and to pamphlets and books accompanying them, and the knowledge which the defendants had of the manner in which Norton and their agents generally did their business abroad, and the fact that the defendants had never expressed any dissent to this continued course of things. We cannot say that the jury did wrong in coming to their conclusions. Little evidence of Norton's authority would be necessaiy after the admission that he was and long had been the agent of the company to transact their business in SufBeld, and certainly not as to his authority to agree that he would advance the premiinn himself, and charge it in a private ac- count to the applicant, and to do whatever else was incidentally necessary and customary in business of that nature. The powers of insurance agents locally established, are in the main pretty uni- form and general in this country. These agents are furnished with blank policies, which need only to be filled out and counter- signed and delivered to perfect the contract of insurance, though in some cases there are restrictions and conditions which persons who ask for insurance must take care to observe and follow, or they will not obtain a valid insurance. The extent of these powers has too often been discussed and too often decided to need our comments, and may be found in all the elementary books and in numerous reported cases. We refer to one case only which was not cited on the argument, though the principle is famihar to every respectable lawyer, Wew York Central Ins. Co. v. Nat. Pro. Ins. Co. 20 Barbour, 469. One of the conditions of the policy there was that no insurance should be binding until the actual payment of the premium. The money was in the bank where the agent was in the habit of making his deposits, depos- 40 SUPKEME COURT OF CONNECTICUT. Sheldon v. Connecticut Mutual Benefit Life Insurance Company. ited to the credit of the insured. The cashier told the agent of the insurers at the time the arrangement for the insurance was made, that he could have the money. The agent directed him to let it lie, saying that when he wanted the money he would draw for it. It was not in fact drawn- by him until after the fire. Held, that the agent had waived a strict compliance with the condition, and that he had authority to do so. A like principle was settled by this court in Peek et al. v. The New London Mutual Insurance Company, 22 Conn. 575, where we held that a local agent could waive a condition contained in the policy of insurance. But it is said, even if Norton could agree that the cash part of the premium should be considered as paid by being charged in the agent's private account, this cannot apply to the note to be given for the balance of the premium. We think the judge left this point in a correct manner to the jury in his charge. He instructed them that the question depended on the same principles of law and fact as the question respecting the payment of the cash part of the premium. This is correct. It is further claimed that the court misled the jury by informing them that when an application has been made, and that applica- tion has been approved and accepted by the company, or its proper agents for that purpose, and a policy has been thereupon made, executed, and completed, and notice of such execution given to the assured, the contract of such insurance is complete, and the appli- cant is entitled to the policy. It is said that the jury would natu- rally understand from this that the payment of the premium, or any arrangement for its payment, is unimportant, if only a policy is made out and ready to be delivered on payment. This objec- tion will vanish when it is remembered that the remarks were made witli reference to the objection that there would be no con- tract of insurance unless a policy was executed and delivered, in which sense the remarks were right and proper, for the contract of insurance may be perfected and become mutually obligatory without a policy executed in form and delivered, and we cannot think that the jury could have understood that the payment of the premium was not necessary before the policy or the contract of in- surance could take effect, if it was not waived or considered as paid. The plaintiff, in his cross-examination of Norton, inquired about his practice with Curtiss, as to crediting him in account with pre SEPTEMBER, 1856. 41 Connecticut Mutual Life Insurance Co. i>. N. York & N. Haven Railroad Co. niiums in other insurances. The answer being in the negative, the reception of the evidence, if incorrect, lays no foundation for a new trial ; for the question and answer did not affect the verdict. The motion for a new trial for a verdict against evidence, which is an address to the sound discretion of the court, we do not grant. We add only a word to what we have already said. There were two main facts in dispute, which the jury found for the plaintiff; first, the arrangement between Curtiss and Norton that the pre- mium should be considered as provided for; and second, the au- thority of Norton to do this act. These questions being settled in favor of the plaintiff, he was entitled to recover, and we see noth- ing in the evidence which makes us believe that the . verdict is against evidence. We do not advise a new trial. In this opinion the other judges. Storks and Hinman, con- curred. New trial not to be granted. As to delivery of policy and completion of contract, see Fried v. Royal Ins. Co. post, 588; Kentucky Mut. Ins. Co. v. Jenks, post, 101 ; Myers v. Keystone Ins. Co. post, 668 ; Hoyt v. Mut. Benefit Life Ins. Co. post, 253 ; Kennedy v. N. Y. Life Ins. Co. post, 123 ; Ins. Co. v. Webster, 6 Wall. 129. As to waiver of payment of premium, see Bouton v. American Mut. Life Ins. Co. post, 51, and cases cited. Connecticut Mutual Life Insurance Company vs. New York AND New Haven Railroab Company. (25 Conn. 265. Supreme Court, September, 1856.) Action against wrony-doer for causing loss. — The insured lost liis life by an'accident on the defendants' railroad, whereby the plaintiffs had to pay the insurance money. BeM, that an action was not maintainable by the insurers, at common law, against the railroad company to recover the insurance paid. The case is stated in the opinion of the court. Sungerford ^ W. D. Shipman, for the plaintiffs. 1. The defendants were liable to Samuel Beach during his life- time in either of two forms of action, namely : (1.) In assumpsit, for breach of their contract to carry him safely from New York to Bridgeport. (2.) In case, for injuries caused by their negligence. Both of these rights of action survived to his administratrix, either 42 SUPREME COURT OF CONNECTICUT. Connecticut Mutaial Life Insurance Co. v. N. York & N. Haven Railroad Co. of which she could have prosecuted. The former survived at com- mon law, and the latter by our statute of 1848. 2. If at the time of the accident Samuel Beach had had the property of the plaintiffs with him, the same being lawfully on the defendants' road, which property had been destroyed by the same act that destroyed the life of Beach, the defendants would have been liable to the plaintiffs for the value of the property so de- stroyed ; not indeed on the ground of a breach of contract, but by reason of a "breach of duty irrespective of any contract." Marshall v. The York, New Castle ^ Berwick B. Co. 7 Eng. L. & E. 519, 522. Collett v. London ^ N. F. B. Co. 6 Eng. L. & E. 305, 308. Phil. ^ Beading B. Company v. Berhy, 14 How. 468, 485. Farwell v. Boston ^ Worcester B. Co. 4 Met. 49, 55. 3. If Samuel Beach had had his own or another's property with him at the time of the accident, the same being lawfully on the defendants' road, the safe transportation of which having been in- sured by the plaintiffs, they being authorized to make such con- tracts of insurance, and such property had been destroyed by the negligence of the defendants ; on payment of the value of the property thus destroyed to the insured, the plaintiffs would be en- titled to recover the amount thereof of the defendants. Sart v. Western B. Corporation, 13 Met. 99, and cases there cited. Mason v. Sainsbury, 3 Doug. 61. (26 E. C. L. 36.) Clark v. Hundred of Blything, 2 Barn. & Cress. 254. (9 E. C. L. 77.) ■ 4. By the settled policy and express provisions of the law, and by the terms of their charter, the plaintiffs were authorized to in- sure the lives of individuals against all contingencies and hazards whatever ; those which might arise from being transported from one place to another as well as others ; and in pursuance thereof they insured the life of Samuel Beach. When killed he was law- fully on the defendants' road. His life was, for the time being, law- fully and with the consent of the defendants, placed in their cus- tody, and by their neghgence destroyed, by which the plaintiffs have been compelled to pay the sum named in their policy. 5. This suit is lightfully brought in the name of the plaintiffs. It could not have been brought in the name of the assured, be- cause the same act which produced the event insured against, ter- minated the natural life of the assured. It could not have been brought in the name of the administratrix, because no right of ac- tion for the death of Samuel Beach ever survived to her. SEPTEMBER, 1856. 43 Connecticut Mutual Life Insurance Co. v. N. York & N. Haven Railroad Co. 6. The damages in this action are neither remote nor contin- gent, but immediate, direct, and certain. Allison v. McGune, 15 Ohio, 726. Tates v. Joyce, 11 Johns. 136. Adams v. Faiffe, 7 Pick. 542. Jones v. Van Zandt, 2 McLean, 596. Smith v. Tonstall, Carthew, 3. Mason v. Sainsbury, 3 Doug. 61. Olark v. The Hundred of Blything, 2 Bam. & Cress. 254. Martinez v. Gerber, 3 Man. & Gran. 88. (42 E. C. L. 55.) Newlury v. Conn. ^ Pass. Rivers R. Co. 25 Vt. 377. Lowell v. Boston ^ Lowell B. Co. 23 Pick. 24. 7. The objection stated by Lord Ellenborough in the 1st of Campbell, and cited by Metcalf, J., in Qarey v. Berkshire B. Qo. 1 Gush. 475, that the death of a human being cannot be the ground of a civil action for damages, does not apply to the present case. This action is not for damages generally, for Beach's death per se, as such. The ground of that rule of the common law, (if indeed there be any such rule.) is that no man can be compensated for the loss of his own life ; neither can his family or friends be in- demnified, either in a. legal or popular sense, for the severing of the ties of nature, or for the loss of the society and aid of the de- ceased, or for the anguish of mind that flows from his death. 8. The discharge set up in the defendants' plea is no bar to a recovery, because, (1.) The administratrix had no right of action for the death of the intestate, none having survived or accrued to her, and of course she could discharge none. Whatever the de- fendants have paid her is for injuries to the deceased during his lifetime. (2.) This contract not being one of indemnity, the defend- ants could not indemnify the deceased or his estate, and thereby discharge the liability of the plaintiffs to pay the amount stipulated in the policy. The payment set up in the discharge would be no bar to a suit on the policy, and by parity of reasoning it can be no answer to the plaintiffs' claim in this suit. Baldwin, for the defendants. The defendants say that the matters alleged in the declaration furnish no cause of action against them in favor of the plaintiffs, for, 1. No right of theirs, and no duty toward them, was violated by the defendants. There was no privity of contract or otherwise, between the defendants and the insurance company. 2. By the common law no action was sustainable for damages by reason of the death of any person. Baker v. Bolton, 1 Camp. 44 SUPREME COURT OF CONNECTICUT. Connecticut Mutnal Life Insurance Co. e. N. York & N. Haven Railroad Co. 493. Qarey v. Berkshire B. Go. 1 Cush. 475. Such an action now can be sustained only by parties to whom it is given by stat- ute. Those are the personal representatives of the deceased. 3. Whenever an action can be sustained by one person for con- sequential damage resulting from a personal injury done to another, it must be by reason of some natural or legal relation existing be- tween the plaintiff and the p^ty injured. Anthony v. Slaid, 11 Met. 290. Where no such relation exists, but the loss is incurred by reason of some special contract, as by a contractor for the support of town paupers, who has been subjected to increased expense by a battery committed upon a pauper, the injury is too remote to sustain an action. There is no case in which the insurers, either of life or property, have ever been holden to be entitled to recover of a wrong-doer consequential damages sustained by them as insurers. If the injurious act was done wilfully, with the intent to injure the plaintiff, that would present a different question. Here the loss or damage complained of by the plaintiffs is neither the natu- ral, legal, or intended consequence of the act done. See Long- meid ^ wife v. Holliday, 6 Eng. L. & Eq. 563. The railroad company must pay to the persons injured or his representatives the full amount of his damages. They are entitled to no deduction on account of the insurance ; for there is no priv- ity between the wrong-doer and the insurer. As between the insurer and the assured, there may be an equitable claim in the case of an insurance on property, to a subrogation of the insurer to the rights oi the assured against the wrong-doer. But he has no remedy in any other mode. Yates v. Whyte, 4 Bing. N. C. 272. (BS" Eng. C. L. 349.) In Mason v. Sainsbury, 3 Doug. 61, it is expressly holden that the insurer, having paid the assured, cannot sue the tort-feasor in his own name. And the same doctrine is affirmed by Parke, J., in Yates v. Whyte, above referred to ; and in the case of Quebec Fire Ins. Co. V. St. Louis, 22 Eng. L. & Eq. 73, and in the case of the Propeller Monticello, 17 How. 154. The consequence of any other doctrine would be most perni- cious. The defendants have made full satisfaction for the injury to the representatives of the deceased, and have no concern with any equities which may exist between them and the insurers, of which they had no knowledge or notice. SEPTEMBER, 1856. 45 Connecticut Mutual Life Insurance Co. v. N. Tort & N. Haven Bailroad Co. Storks, J. The defendants, a railroad company, are charged with having neghgently occasioned the deatli of one Dr. Beach, by which event the plaintiffs, a life insurance company, have been compelled to pay to his representatives the amount of an insurance effected upon his life, of which amount a recovery is sought in this action. A plea in bar sets forth a payment to the administra- trix of the deceased of the damages for which the defendants' neg- ligence had rendered them legally liable, and also a discharge by her. This plea and the demurrer thereto require no examination, as they are immaterial in the view whicli we take of the declara- tion. It is clear, from the declaration, that a pecuniary injury has been sustained by the plaintiffs in consequence of the unlawful conduct of the defendants. If the injury thus set forth be action- able, or an injury in a legal sense, there must be a recovery. But we are of the opinion that the wrong complained of is not the proper subject of a suit at law, both for reasons appertaining to the peculiar nature of the injury and to the manner in which its con- sequences are brought home to the party claiming redress. The act complained of is the producing of death. We are at once met with the inquiry, whether under the common law system a party is liable, civiliter, for the destruction of human life, what- ever the nature of the consequences may be, or however clearly such a wrong may involve pecuniary damage. The whole history of the common law of England discloses no recognition . of such a liability, although instances of pecuniary loss resulting from death, designedly or negligently produced by human agency, must have been almost without number. In one or two cases the suggestion of such a liability has been summ'arily contradicted by courts with such a meagreness or total absence of argument as almost to give the contradiction the semblance of an obiter dictum. Lord Ellenborough (^Baher v. Bolton, 1 Camp. 493) said briefly, when a husband sought to recover damages against a wrong-doer who had caused his wife's death, for the loss of her society and of the benefit of her services, that in a civil court the death of a human being cannot be complained of as an injury. It is manifestly not one reason, but many, which lie at the basis of the common law rule. Considerations of the most varied and grave character would present themselves to the minds of any 46 SUPREME COURT OF CONNECTICUT. Connecticut Mutual Life Insurance Co. v. N. York & N. Haven Railroad Co. court, even although the matter should be submitted to them as an original question, to dissuade them from entertaining any action, sounding in damages and seeking a recovery on account of the de- struction of life. Should damages be demanded in right of the deceased for the injury to hira, in the name of his representative, a right would clearly be claimed by the mere representative, which, from the nature of things, coul^ never have inhered in the princi- pal for one instant of time. No contract even could be made rec- ognizing such a right and providing for a compensation for the loss of one's life. The contract of insurance upon lives was toler- ated, not on the ground that death was a proper subject of pecuni- ary remuneration, but as a mere wager, which might, if lawful, as all wagers once were, depend as well upon the duration of life as upon any other contingency. Or if a suit should be brought to recover for the mental suffering, loss of society, comfort, support, and protection resulting from the death of another person, we should see at once, so intertwined is the web of human affection, interest, and relationship, that the author of his death, however slight or accidental his default, would be responsible in numberless actions brought on behalf of wives, children, friends, brothers, sis- ters, and dependents of all degrees, to say nothing for the present of creditors, and for an injury of such incalculable extent, writers on jurisprudence, perhaps without strict accuracy, have assigned the awful magnitude of the wrong as the reason why neither court nor jury have ever been trusted by the law with the function of estimating it. The experiment of seeking legal redress for the consequences of death from the wrong-doer has sometimes been tried ; always in cases where the pecuniary consequences of the in- jury were so clearly traceable as to make a right to compensation very like a logical necessity ; as, for instance, where a husband has lost his wife, to all whose manual services he was entitled ; 1 Camp. 493 ; arid where a father had been deprived of his child, all whose labor with all its avails belonged exclusively to his parent. Carey v. Berkshire R. Co. 1 Cush. 475. But such actions, if countenanced, would furnish no sound apology for a limitation of the principle which they involved, and when tested by argument have invariably been discouraged. The case of I'ord V. Monroe, 20 Wend. 210, is not only an anomaly on the score of principle, but anomalous by reason of the fact that a ques- tion so momentous as the right to treat death as an actionable in- SEPTEMBER, 1856. 47 Connecticut Mutual Life Insurance Co. «. N. York & N. Haven Railroad Co. jury was overlooked both by counsel and the court in every stage of the case. Modern legislation, for reasons connected with the public good, has in special cases, and for the benefit of particular persons, and to a limited amount, created a liability for injuries resulting in death, when caused by misconduct of a certain specified character. But so far is this from being a recognition of any common law right or principle that the extremely artificial quality of such enactments furnishes the highest proof that they substantially create a public offence, with the sanctions of a suitable penalty, which is to be appropriated as is just for the benefit of those who in ordinary cases would be the greatest pecuniary sufferers by the death of the deceased. We have no inclination to abrogate the common law doctrine, that the death of a human being, whatever may be its conse- quences in a pecuniary or in any other aspect, is not an actionable injury. The other branch of our inquiry, relating to the manner in which the injury complained of was brought home to the party claiming to have suffered by it, concerns principles of great practi- cal interest, and novel in their present application. The plaintiffs sustain no relation to the authors of the wrong other than that of mere contractors witli the party injured ; and their contract lia- bility is the medium through which the injury is brought home to them. They justly say that their loss is in fact distinctly traceable and solely due to the misconduct of the defendants ; that the death of Dr. Beach, caused by the defendants, in a legal sense deter- mined the only contingency out of which their liability grew, and brought upon them the consequences of that liability, which, through the defendants' unlawful acts, had now become fixed. Still the question remains, notwithstanding this precise exhibition of cause and effect, whether these consequences of which the de- ceased was primarily the subject, and which affected the plaintiffs only because they had put themselves into the position of con- tractors with him, were in a legal view brought home to the plain- tiffs, directly or indirectly. The completeness of the proof of connection between the acts of the defendants and the loss of the plaintiffs, does not vary, although it may tend to confuse the as- pects of the case. The single question is whether a plaintiff can successfully claim a legal injury to himself from another, because 48 SUPREME COURT OF CONNECTICUT. Connecticut Mutual Life Insurance Co. v. N. YoA & N. Haven Railroad Co. the latter has injured a third person in such a manner that the plaintiffs' contract liabilities are thereby affected. An individual slanders a merchant and ruins his business ; is the wrong-doer liable to all the persons, who, in consequence of their relations by contract to the bankrupt, can be clearly shown to have been dam- nified by the bankruptcy? Can a fire insurance company who have been subjected to loss by the burning of a building, resort to the responsible author of the injury, who had no design of affect- ing their interest, in their own name and right ? Such are the complications of human affairs, so endless and far-reaching the mutual promises of man to man, in business and in matters of money and property, that rarely is a death produced by human agency which does not affect the pecuniary interest of those to whom the deceased was bound by contract. To open the door of legal redress to wrongs received through the mere voluntary and factitious relation of a contractor with the immediate subject of the injury, would be to encourage collusion and extravagant contracts between men, by which the death of either through the involun- tary default of others might be made a source of splendid profits to the other, and would also invite a system of litigation more por- tentous than our jurispriidence has yet known. So self-evident is the principle that an injury thus suffered is indirectly brought home to the party seeking compensation for it, that courts have rarely been called upon to promulgate such a doctrine. The case, however, of Anthony v. Slaid, 11 Met. 290, referred to at the bar, is in point. A contractor for the support of paupers had been subjected to extra expense by means of a beating which one of those paupers had received, and he sought from the assailant a re- covery of the expenditure. But the court held that the damage was remote and indirect ; having been sustained not by means of any natural or legal relation between the plaintiff and the party injured, but by means of the special contract by which he had un- dertaken to support the town paupers. The case, however, would present a different aspect, if by virtue of the contract between the railroad company and the deceased a direct relation was established between the former and the in- surers. If the contract for the transportation of Dr. Beach safely, either in its terms, or through its necessary legal incidents, or by fair inference as to the intent of the parties, devolved upon the railroad company a duty towards the present plaintiffs, the latter SEPTEMBEE, 1856. 49 Connecticut Mutual Life Insurance Co. v. N. Yorlc & N. Haven Eailroad Co. might sue for a violation of that dnty. An obHgation tluis imposed will not always require a suit for its breach to be brought by a party to the contract ; an independent right of action resides in the party to whom the duty was to be performed. In this respect there is no difference between an obligation imposed by law and by contract. Where the duty of keeping a highway is lodged in a certain quarter by statute, the way is to be kept in repair for the public, for everybody, and when any person is injured by its de- fects, the breach of duty is to him, and he has an action for the violation of hi^ right. If a stage-coach proprietor agrees with a master to carry his servant, and injures the latter on the road, he is liable directly to the servant ; for although undertaken at the request of and by agreement with another, the duty was directly to the party injured. Longmdd et ux. v. Holliday, 6 Eng. Law & Eq. 6fi3. But it is evident that the present case cannot be brought within the principle of such decisions. It would be unfair to argue that when two parties make a contract, they design to provide for an obligation to any other persons than theni.selves and those named expressly therein, or to such as are naturally within the direct scope of the duties and obligations prescribed by the agreement. On this point it is enough to say that when an agree- ment is entered into, neither party contemplates the requirement from the other of a duty towards all the persons to whom he may have a relation by numberless private contracts, and who may therefore be affected by the breach of the other's undertakings. We cannot find that any public law charged the present defend- ants with any duty to the plaintiffs regarding Dr. Beach's life, nor can we see that Dr. Beach exacted, either expressly or by reason- able intendment, any obligation from the defendants towards the insurers of his life, when he contracted for his transportation to New York. Had the life of Dr. Beach been taken ^vith intent to injure the plaintiffs through their contract liability, a different ques- tion would arise, inasmuch as every man owes a duty to every other not intentionally to injure him. We decide that in the absence of any privity of contract be- tween the plaintiffs and defendants, and of any direct obligation of the latter to the former growing out of the contract or relation be- tween the insured and the defendants, the loss of the plaintiffs, although due to the acts of the railroad company, being brought home to the insurers only through their artificial relation of con- 4 50 SUPREME COURT OF CONNECTICUT. Connecticut Mutual Life Insurance Co. v. N. York & N. Haven Railroad Co. tractors with the party who was the immediate subject of the wrong done by the railroad company, was a remote and indirect consequence of the misconduct of the defendants, and not action- able. Since the determination of this case we have observed a decision recently made in Maine, QBocMngham M. F. Ins. Co. v. Bosher., 39 Maine, 253,) fully confirming the legal theory which we have ad- vanced. The suit was brou^t against a party who had wilfully fired a store, by the insurance company, who had paid the conse- quent loss, and in their own name. The court dismissed the ac- tion on demurrer, taking the same view of the common law doc- trine which we have expressed relative to the indirect and remote manner in which the interests of the insurer were prejudiced by the misconduct of the wrong-doer. The cases in which insurers have been permitted to recover against the authors of these losses are not in contravention of these principles. They have recovered, not by color of their own legal right, but under a general doctrine of equity jurisprudence, commonly known as the doctrine of subrogation, applicable to all cases wherein a party who has indemnified another in pursuance of his obligation so to do, succeeds to and is entitled to a cession of all the means of redress held by the party indemnified against the party who has occasioned the loss. In some instances the doc- trine has been carried so far that an insurer has been pei-mitted to recover from the insured such compensation as the latter has sub- sequently obtained from the wrong-doer ; as if the money paid by the tort feasor under such circumstances was really paid for the use of the insurer. By virtue of this doctrine there is no doubt of the right of an insurer who has paid a loss to use the name of the insured in order to obtain redress from the author of the wrong ; a right to be exercised for the benefit of the party equitably enti- tled to its benefits, not to be enforced by its possessor in his own name, but by him as the successor to the remedies of the person whom he has indemnified. Having no independent claim on the wrong-doer, he might be successfully met by the superior equities of the wrong-doer, such, for instance, as a payment to the party directly injured, without notice of the insurer's claim to be subro- gated. Nothing can be plainer than that an indirect liability of this kind is an argument rather against the claim of a direct re- sponsibility of the wrong-doer than a suggestion in its favor. The FEBRUARY, 1857. 61 Bouton V. American Mutual Life Insurance Company. views taken by courts in recognizing the insurer's right of subro- gation, tend to sustain the principle which we now maintain. See case of Propeller Montieello, 17 How. 154 ; Mason v. Sainshury, 26 E. C. L. 36 ;i Yates v. White, 33 E. C. L. 349 ;2 Quebec Fire Ins. Go. V. St. Louis, 22 Eng. Law & Eq. 73 ; Mart v. W. B. Oo. 13 Met. 99. We advise the superior court to render judgment for the defend- ants. In this opinion the other judges, Waite and Hinman, con- curred. Judgment for defendants. Note. — Under the statute of 1 Geo. I. ch. 5, sec. 6, it was lield in Mason v. Saimhury, 3 Doug. 61, (1782,) that when insurers had paid the amount of the loss occasioned by the demolition of a house by rioters, they might maintain an action in the name of the assured against the Hundred to recover the sum paid. This case is cited and approved in Clark v. The Hundred of Blything, 2 Barn & Cress. 254, (1823.) In London Assurance Co. v. Sainsbury, 3 Doug. 245, (1783,) the insurance company having paid the insurance upon a house destroyed by rioters, sued the Hundred in their own name to recover the sum paid. The court, Willes and Ashurst, J J., dissenting, held, that the office could not recover; and the de- cision was unanimously affirmed in the court of exchequer chamber. See also Randal v. Cochran, 1 Ves. Sen. 98 ; Cullen v. Butler, 5 M. & S. 466 ; 2 Phil. Ins. (5th ed.) § 2003. Bouton vs. The American Mutual Life Insurance Company. (25 Conn. 542. Supreme Court, February, 1857.) Waiver. — A condition in a life policy that the same shall cease and determine provided the annual premium shall not be paid in advance, may be waived by the reception after that time of the premium by the company or their authorized agent. Auihm'iiy of agent. — In an action upon a life policy which declared that it was not to be binding until countersigned by the agent and delivered and the advance premium paid, and these were the only words expressive of the agent's authority ; held, that he was not authorized to accept a subsequent premium after the time at which the policy expired by reason of the non-payment of such premium at the proper time. Payment by agent. — An agreement by the agent to become personally responsible to the company for the payment of the premium, made in good faith, whereby the insured should be the debtor of the agent, amounts to a payment as between the insured and the msurer. Action upon a policy of insurance on the life of Josiah Bouton, for the benefit of the plaintiff. 1 3 Dong. 61. " 4 Bing. N. 0. 272. 52 SUPREME COURT OF CONNECTICUT. Bouton V. American Mutual Life Insurance Companj-. By the policy, which was set out on the declaration, and which was dated the 25th day of February, 1851, the defendants, in con- sideration of the sum of $114.34, to them paid by the said Josiah Bouton, to January 1st, 1852, and of the premium of fl34.80 to be paid annually on the first day of January during the continu- ance of the policy, or half or quarter yearly in advance, with in- terest on each portion deferred, insured the life of the said Josiah for the use and benefit of the plaintiff, in the sum of 14,000 for the term of his natural life, and promised to pay said sum to her within ninety days after due notice and proof of the death of said Josiah. It was also provided in the pohey that in case the annual premium should not be paid in advance, the company should not be liable for the payment of the sum insured and the policy should cease and determine. The concluding clause of the policy was as follows : " In witness whereof, the said American Mutual Life In- surance Company have, by their president and secretary, signed this contract this 25th day of February, 1851 ; but the same shall not be binding until countersigned by W. W. Webb, agent, and delivered, and the advance premium paid." The policy was signed by the president and secretary, and on the 27th day of February countersigned by the said Webb. The said Josiah Bouton died on the 9th day of January, 1852. The plaintiff alleged a payment to the defendants of the annual premium which became payable on the 1st day of January, 1852, which the defendants by their pleadings denied, and claimed that the policy had expired before the decease of the said Josiah. The case was tried before the jury on the general issue, with notice, at the term of the superior court holden in New Haven County, in March, 1856. On the trial the plaintiff, for the purpose of proving that the premium in question had been paid, and that the policy was in force at the time of the death of the said Josiah, offered evidence to the following effect : That the said Josiah, on the 2d day of January, 1852, having been somewhat unwell for a few days, and then confined to his house, sent for Mr. Webb, the insurance agent, to call and see him about his life insurance policy ; that Webb came in the afternoon of the same day ; that the said Josiah then said to him that he had sent for him about his insurance policy; that he told Webb that he had but $18, and asked him if that would make his policy safe; FEBRUARY, 1857. 53 Bouton V. American Mutual Life insurance Company. that Webb replied, " Seeing you are so sick and unable to get out, I will take the f 18, and accommodate you until you get out ; " that the said Josiah thanked him, and told him that Mrs. Bouton would hand him the $18 ; that Mrs. Bouton then went with him into the front parlor and handed him the money, which he counted over ; that she asked him if it was correct, and he said " Yes, I will take this $18 and give your husband credit for having paid so much towards his premium," and on her asking if it was all right and would secure the policy till her husband could get out and pay the remainder, added " Yes, it is all right, and I hope your hus- band will get out in a few days and pay the balance." Also that one Dauchj', who occupied the sam? store with the said Josiah, and was daily at his house during his sickness, on the 5th day of January, 1852, went to see Webb with regard to the payment of the balance of the premium, and requested him to take the money and give him a receipt ; that Webb repeated to him the above stated conversation at Bouton's house, and acknowledged receiving the $18 from Mrs. Bouton, but declined to receive the balance ex- cept under protest, and was not willing to give the receipt re- quested, but suggested that Dauchy might pay the amount to the young man in his (Webb's) ofBce ; that Dauchy asked him the amount due, which he stated to be $116 ; and that Dauchy at once went to the store and got the money and paid it to the young man in Webb's office : it appearing on cross-examination that the said Josiah was considerably worse that day, which was known to the said Dauchy, and that Webb said to him at the time that he pro- posed to pay him the balance of the premium, that it was against the rules of the company to receive the premium from a person who was sick, after the policy had expired, and against his in- structions. Upon the foregoing evidence (with other evidence not impor- tant to the questions here raised) the plaintiff rested her case, and the defendants moved for a nonsuit, which the court refused to grant. The defendants thereupon offered no evidence, but re- quested the court to charge the jury : That upon the facts claimed by the plaintiff she was not enti- tled to recover ; that the policy of insurance expired by its own terms on the 1st day of January, 1852, by reason of the non-pay- ment of the premium thereon on or before that day ; that the evi- dence submitted by the plaintiff did not confer upon Webb any 54 SUPREME COURT OF CONNECTICUT. Bouton V. American Mutual Life Insurance Company. power to make a new contract obligatory on the defendants, or to renew the old contract after its expiration, especially under the cir- cumstances proved, when the risk attempted to be assumed was in- creased by the sickness of the insured ; that if Webb had the power to renew the contract after its expiration, he had no power to change its terms ; that the smallest amount which by the terms of the policy could at any titne be received in renewal, was $33. TO, or payment for one quarter, and that his reception of a less sum did not operate to renew the contract ; that the $116 paid by Dau- chy in the manner stated, on the 6th daj^ of January, to the clerk of Webb, did not operate to renew the policy. The court did not so charge the jury, but instructed them as follows : The policy described in the plaintifFs declaration expired by its terms on the 1st of January, 1862. But it was such a contract as could be revived by the defendants or their authorized agent ; and when so revived it would have the same effect as if it had not been permitted to expire. The defendants insist that the evidence submitted by the plaintiff does not confer upon Webb the power, as their agent, to do any act that will revive this policy. But for the purpose of this trial you will take the law to be, that the agent, Webb, was by virtue of his relations to this company, as in- dicated in this policy, authorized to receive the annual payments of premium due ; and if he has done so, even after the 1st day of January, 1852, and it was done in good faith, its effect is to revive the policy, and make the company liable thereon. He had the power to renew the policy only on its original terms. He could not change or vary it. He might also renew this policy, not only by receiving the annual premium in money, but he might agree to become responsible himself, personally, to the company for the pre- mium, and make the insured his debtor for the amount ; and if he has done this in good faith, it amounts to a payment of the pre- mium, and the policy is thereby revived. The money paid by Dauchy, if not in effect paid to and received by Webb as agent of the defendants, as premium due on this policy, would not revive the policy. Whether it was so paid and received is for you to say. If you shall find that the premium upon this policy was paid to and received by Webb, as the agent of the defendants, in good faith, though the same was paid after the 1st day of Januaiy, 1862 ; or if yon shall find that Webb agreed to become personally respon- FEBRUARY, 1857. 55 Bouton V. American Mutual Life Insuiance Company. sible to the defendants for the premium, and to make Mr. Bouton, the insured, his debtor, and that this was also done in good faith, though done after January 1, 1852, you will return a verdict for the plaintiff; otherwise your verdict will be for the defendants. The jury returned a verdict for the plaintiff, -and the defendants moved for a new trial for a misdirection, and for a verdict against evidence. Blaekman ^ Beach, in support of the motion. The policy by its own terms, " ceased and determined" on the 1st day of January, 1852. TarUton v. Staniforth, 5 T. R. 695. Want V. Blunt, 12 East, 182. Buse v. Mutual Life Insurance Co. 8 Ga. 534, [post, 83]. If it was ever revived, it was so, not by the company directly, but by Webb acting as their agent. But we claim that Webb had no power as agent to revive the policy after its expiration ; and that if he had the power, the acts in question were not sufficient for that effect. 1. There was no evidence as to the fact of Webb's agency, or as to his powers as such agent, except that the policy of insurance contained the clause, " not valid until countersigned by W. W. Webb, agent, and delivered, and advance premium paid." The judge in his charge based his opinion entirely on this clause. In the absence of any acts or conduct of the principal enlarging by implication the power of an agent, or of his omissions to act when he ought to act, to prevent such implication, neither of which is claimed here, the agent's powers are limited by the authority orig- inally conferred, both as between himself and his principal, and between the principal and third parties. 1 Am. Leading Cases, 544. Mechanics' Bank v. N. Y. ^ N. H. B. Co. 3 Kern. 599, 632. The only powers conferred upon Webb hj his being named as agent in this policy, were such as were requisite to enable him to carry into effect the contract it contained. He was authorized to receive the first premium stipulated for in the policy, to deliver it to the insured, and thereafter to receive the subsequent premiums in the manner and at the times stipulated in the written contract, and as a matter of law he had no other powers, for none other can be legally inferred from the instrument under which he was ap- pointed. If the company have ever done anything, or omitted to do anything which would lead the insured or the public to infer that he had any other powers ; or if there is any peculiar authority to be inferred as vested in an agent, because he is an insurance 56 SUPREME COURT OF CONNECTICUT. Bouton ». American Mutual Life Insurance Company. agent, such inferences are to be drawn by the jury, and not by the court. 2. When the policy expired Webb's power as agent expired with it. Acey v. Fernie, 7 M. & W. 151. Perkins v. Waihing- ton Insurance Co. 4 Cow. 645. His powers are to be measured by the same rule the day after the expiration as the year after. Whether the agent acts " in good faith " is no criterion of his pow- ers ; if the act is within his authority, the principal is bound, though he acts in bad faith. 3. If Webb could revive the contract in any mode, he had no power to change the terms of the policy, and to agree that a less sum than the premium named in the policy should operate to re- vive it. The premium stipulated is the only consideration for the contract. If he could diminish the amount, he could waive it al- together, and agree that the policy holder should remain insured, without any premium paid or agreed to be paid ; or he could alter the conti'act in any other particular. The least amount which, by the terms of the policj', could at any time be received in renewal, was 133.70, and Webb received but |18. 4. The judge erred in instructing the jury that if Webb agreed with the insured to become personally responsible to the defend- ants for the premium, it amounted to a paj-ment of the premium, and the policy was thereby revived. We claim that he had no power to bind the company by such an agreement. He was ap- pointed to receive the premiums under the policy. The policy specified distinctly that they were to be paid in cash. Webb knew this, and the insured knew it. An agent appointed to receive money has no power, as such agent, to substitute himself as debtor to his principal, either by giving credit to the original debtor, or by an offset between himself and such debtor. Story on Agency, §§ 98, 99, 103, 413. Ward v. Hvans, 2 Salk. 442. Todd v. Reid, 4 Barn. & Aid. 211. Russell v. Bangley, Ibid. 395. Syhes v. Giles, 5 M. & W. 645. Underwood v. Mcholls, 33 Eng. L. & Eq. 321. Kingston v. Kincaid, 1 Wash. C. C. R. 454. Helton v. Smith, 7 N. Hamp. 446. McCulloch v. McEee, 16 Penn. State, 289. Kirh v. Hiatt, 2 Carter, (Ind.) 322. When the original authority is to receive cash, but the principal has by his acts or conduct or omissions held out the agent as vested with other powers, then it becomes a question of fact for the jury how far this implied authority extends. Sheldon, adnCr, v. Conn. Life Ins. FEBRUARY, 1857. 5'( Bouton i;. American Mutual Life Insurance Company. Co. 25 Conn. 207, {ante, 27.] Here the jury were told that this agent, appointed to receive money, and only money, from a debtoi who knew the limit of the agent's powers, had, as a matter of law, a right to bind his principal by assuming the debt upon himself. Dutton ^ Carter, contra. 1. The charge of the court as to the power of Webb to revive the policy was correct. (1.) Webb is described in the policy as agent ; this of course means general agent, unless there is some- thing to restrict it, and gives the agent all the power of the prin- cipal. Methuen Co. v. Haye», 33 Maine, 169. (2.) There is nothing from which any restriction can be implied, unless it is that he is named as agent in connection with this policy. But this at most would only restrict his agency to this contract of insurance. He would still have the right to make any arrangement regarding this contract which the insurance company could. (3.) What the agent said of his instructions would not prove what the instructions were. The defendants, to have claimed anything from this, should have proved before the court what the instructions were. (1.) Any instructions to the agent would be of no avail, unless communi- cated to the plaintiff. Perkins v. Washington Ins. Co. 4 Cowen, 645. Lighthody v. North American Ins. Co. 23 Wend. 18. Mg- Ewen V. Montg. County Ins. Co. 5 Hill, 101. 2. The charge of the court was correct as to the effect of Webb's charging himself with the premium and accepting the in- sured as his debtor, and that such an arrangement would be equiv- alent to a payment of the premium. Sheldon v. Conn. Mutual Life Ins. Co. 25 Conn. 207, {ante, 27.] 3. If Webb was the agent of the company, so far as this con- tract is concerned, he could waive the performance of the condition as to forfeiture of the policy. In Wing v. Harvey, 27 Eng. Law & Eq. 140, the court held that a similar condition could be thus waived. See also Angell on Eire & Life Ins. § 343. Also § 213, and note. Also Buckhee v. U. S. Annu. Ins. Sj- Trust Co. 18 Barb. 541, Ifost, 406.] 4. The agreement by Webb, and the receipt of the $18 renewed the policy, whether anything further was done or not. Masters v. Madison Co. Mutual Ins. Co. 11 Barb. 624. 5. The court left the question of payment of the premium prop- erly with the jury. The evidence tended to show that the money paid by Dauchy to the clerk was received by the authority of Webb, and amounted to a payment to hini. What Webb said re 58 SUPREME COURT OF CONNECTICUT. Bouton «. American Mutual Life Insurance Company. garding the rules of the company' was admissible only as part of the res gestce, to be considered by the jury on the question whether the money was received as payment. And the jury by their ver- dict have found it to have been so received. It was moreover Webb's duty to receive it, both by his agreement to receive it, and because Bouton had acquired an interest in the policy by his previ- ous payme;it. Ang. on Fire and Life Ins. § 350. It is besides to be presumed, in the absence of*evidence to the contrary, that both the sums received by Webb were paid over by him to the company. 6. The verdict was clearly not contrary to the evidence. Stokes, C. J. In regard to the first point made by the defend- ants, as to the effect of the non-payment by the insured of the premium in advance, as required by the policy in this case, al- though the conclusion to which we have come on the question as to the evidence in regard to the powers of the agent of the de- fendants, renders a decision of it unnecessary, yet, as another trial of the case must be had, we have considered that point, and are of the opinion that as the policy provides that in case the annual pre- mium required by it should not be paid in advance as therein men- tioned, the defendants should not be liable for the payment of the sum insured or any part thereof, and the policy should cease and determine, it was optional with the defendants, on such non-pay- ment, to consider and treat the policy as being at an end to all in- tents and purposes, in which case they would be absolved from all claim or liability thereon ; but, that as that provision was inserted for the sole benefit of the defendants, it was 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 continue 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 evi- denced by the policy as though it had been strictly complied with by the insured. Tiie 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. Wing v. Harvey, 27 Eng. L. & Eq. 140. Buck- bee V. IT. S. Annu. Ins. ^ Trust Go. 18 Barb. 541. i Sheldon v. 1 Post. 406. FEBRUARY, 1857. 59 Bouton 1). American Mutual Life Insurance Company. Conn. Mut. Life Ins. Co. 25 Conn. 207.^ Angell on Ins. § 213, and note, § 343. . The next question is, whether it was proved on the trial that Webb was authorized by the defendants, as their agent, thus to waive the non-payment in advance of the premium as required by the terms of the policy. The first premium due on it was paid in advance to Webb up to Jan. 1, 1852, according to its terms, and it was at . the time of such payment by him countersigned and de- livered to the insured. The question before us respects the next premium payable in advance on that day, in regard to which, it was, as claimed by the plaintiff, paid by the insured to Webb and received by him for the purpose of reviving and continuing the policy, but confessedly after that day, and without any other au- thority in Webb excepting that which is contained in the policy it- self. We are therefore to look to that instrument alone for the evidence of his authority to receive that premium. And the only expression in it, from which that authority is claimed to appear, is the testimonium clause at the end, which provides that tlie policy " shall not be binding until countersigned by W. W. Webb, agent, and delivered, and the advance premium paid." The question be- fore us, therefore, depends on the true construction of tliat clause, or rather of the word " agent " contained in it, taken however, in connection with any other part of the instrument which may s^Jied any light upon its meaning. In this case there is nothing in any other part of it which aids us in ascertaining the extent of the au- thority conferred upon Webb as the agent of the defendants ; so that in determining its extent we are left entirely to the clause which has been mentioned. The policy, whether it is to be con- sidered as conferring or only recognizing an authority to be exer- cised by Webb, evinces that he has a power to act for the defend- ants at least for some purposes, because that is necessarily implied in the term by which he is expressly designated as agent. If, to suppose a case so singular, it had stopped there and nothing in the instrument had been connected with that term, or referred to by it to show to what it related, it would have been wholly indefinite and uncertain, not only as to the subject, but also as to the extent of his authority. It would have indicated merely the existence of that relation between the defendants and Webb which constitutes what is termed an agency, but which would be consistent with the 1 Ante, 27. 60 SUPREME COURT OF CONNECTICUT. Boaton v. American Mutual Life Insurance Company. existence of any one kind or any particular extent of power con- ferred by that relation, as well as with another. It would have been satisfied by considering him as an agent for any purpose and with any power whatever ; and it is difficult to see on what ground any particular effect, or at most, more than the most hmited one, could propei'ly be given to it. We cannot accede to the claim of the plaintiff, that the broadest signification ought to be put upon it, because the term agent is used without any express qualification. To give it such an unlimited effect would extend its meaning be- yond what it could reasonably be supposed was intended by the parties ; and we are aware of no rule which requires such a con- struction. The rule of construing language in pleadings and con- tracts most strongly against the party using it, which however pre- vails only in cases of necessity and where all other means of con- struction fail, does not apply to an instrument by which an author- ity is delegated to an ordinary agent ; it is not a contract, nor has it properly speaking any parties ; and it is at least questionable whether even in pleadings, where the term in question should be used, it would be construed to imply an authority as broad as the plaintiff here claims from it. There is not here any doubt or ob- scurity as to the meaning of the term used, but the difficulty arises from the circumstance that it of itself expresses merely a particu- lar relation between the defendants and Webb generally, and which requires something more to be expressed, or to be inferred from extrinsic proof, in order to show the specific character and extent of that relation and to what acts in particular it was in- tended to apply. There is nothing in the character of this policy or in the language of the clause containing the term in question, which, in our opinion, requires that it should be interpreted by any artificial or technical rule of construction, or otherwise than ac- cording to its natural import. But this idea need not be pursued ; for in this case the word we are considering is not left unconnected with anything in the instrument from which the nature or scope of the agent's authority can be ascertained. The concluding expres- sion in it, on which the question before us arises, is that the " con- tract " expressed in the policy " shall not be binding until counter- signed by W. W. Webb, agent, and delivered, and the advance premium paid." From this it is clear that the policy was not in- tended to take effect by a delivery to the insured by the defend- ants immediately on its execution by the latter, or by any other delivery than one which should be made through an agent ; thai FEBEUARY, 1857. 61 Bouton V. American Mutual Life Insurance Company. it was intended that the delivery of it by such agent was not .to make the contract binding until it should be countersigned bj' him and the premium mentioned in it should be paid in advance ; that is, before the commencement of the period for which the insurance under it should be effected ; and that Webb was the particular and only person or agent to whom the premium should be paid, and by whom the policy should be countersigned and delivered on behalf of the defendants. The direct and immediate object of this clause was to prescribe the mode in which the policy should take effect as a contract between the parties. That mode is particularly de- scribed, and required the interposition of an agent, and Webb was designated as that agent. The clause states exactly v/hat is to be done by him, or in other words, the authority which the defend- ants have conferred on him. The word " agent " added to his name, considered as we are now doing, with reference only to the said clause, imports no more than that he was the agent of the de- fendants to do and cooperate in the things which it was therein provided should be done for the purpose therein mentioned, of making the contract binding. One of those things was the pay- ment by the insured of the premium in advance to, and conse- quently its reception by him. .This being done, together with the countersigning and delivery of the policy,'the contract became, but could not otherwise become consummated and complete. The question now is as to the extent of the authority which was thus conferred on Webb in regard to the premiums provided for in the contract. We think that he was not empowered to receive any premium which was not paid according to the requirements of the policy, that is, in advance. That instrument was his ,sole guide in regard to what he should do under it. The contract was to be made by the defendants, and not by him, excepting in the capacity of their agent ; he was not authorized to alter or vary it, or depart in any respect from it, or dispense with the fulfilment of its condi- tions by the insured, or discharge it, or revive it after it had by its terms ceased to be obligatory on his principal, by a waiver of a compliance with its provisions or otherwise. These must be done by the parties to the contract. He was only authorized to act in pursuance of it, and then so far only as it gave him authority. He could exercise only the power delegated to him, and no power is delegated to him to depart from the terms of the policy. It surely is not necessary to cite books to show that an agent, authorized 62 SUPREME COURT OF CONNECTICUT. Bouton V. American Mutual Life Insurance Company. only to execute a contract in behalf of one of its parties, has no power to vary it or dispense with its execution by the other, or that one authorized by a person to receive a payment of a sum of money from another on and pursuant to a conditional contract which re- quires such payment to be made at a specified time, is thereby em- powered to authorize or waive a breach of such condition. If it be admitted that by the clause in question, Webb was authorized to receive not only the first premium which was required to be paid on the policj', but also those which it provided might subsequently be paid upon it, which has not been denied by the defendants, the question before us may be tested by inquiring whether, in respect to the first premium, the policy gave Webb anj' authority to bind the defendants by a delivery of the policy before the payment of such premium ; for as he had no greater power in regard to subse- quent premiums than he had as to the first, it is quite clear that if he was not authorized to postpone the payment of the first, he was not as to those accruing afterward. To this inquiry the policy fur- nishes a most explicit and decisive negative answer. It expressly says that the policy shall not be binding " until the advance pre- mium is paid." The whole authority of the agent being here ex- pressed on the face of the instrument, there is no place for the doctrine which is applicable to cases where an agent with an osten- sible general authority is restricted by particular and special private instructions from his principal, and which has been adverted to by the plaintiff's counsel. We are therefore of the opinion that al- though Webb might be, and we are strongly inclined to think that he was, authorized by virtue of his agency, as indicated in the policy, to receive in advance the payment of premiums which should by its terms be payable subsequent to its execution and de- livery, he was not thereby authorized to receive such premiums after the day on which it was provided by the policy that they should be so paid in advance ; and therefore that on this point a new trial should be granted. Our opinion is confined to the ques- tion as to the character and extent of Webb's authority as deduci- ble from the terms of the policy itself; leaving the plaintiff at liberty to prove expressly by extrinsic evidence, an authority to receive premiums after the time when they were made payable by the terms of the contract, so as to revive it, or facts from which such an authority should be implied. On the remaining question, which respects the effect of the SEPTEMBER, 1867. 63 Connecticut Mutual Life Insurance Company v. Burroughs. agreement claimed to have been entered into between Webb and the insured as to the mode in which the premium should be paid, we think that on the assumption of the court below as to the ex- tent of Webb's authority, the charge on that point is sustained by our decision in Sheldon v. Oonn. Mutual Life Ins. Co. 25 Conn. 207.1 In this opinion the other judges, Hinman and Ellsworth, con- curred. New trial advised. See Hodsdon v. Guardian Life Ins. Co. post, 218; Helme v. Philadelphia Life Ins. Co. post, 685 ; Sheldon v. Connecticut Mut. Life Ins. Co. ante, 27. CONNEOTICUT MtJTUAL LiFE InSUBANCE CoMPANT VS. JaBVIS F. BuRBOUGHS & others. , (34 Conn. 305. Supreme Court, September, 1867.) Assignment. — A life policy made for the sole u"e and benefit of a rnariied woman by her husband is not assignable by her in case the husband survive the wife. Claim of assignee. — A insured his life for the sole benefit of his wife and survived her. The policy was made payable to their children in case of the survivorship of the husband. The wife assigned the policy with the knowledge and consent of the husband as security for a debt of the latter. The assignee paid one premium, when the insured died. On a bill of interpleader by the company to determine the rights of the wife's heir and her assignee, held, that the heir was entitled to the amount of the insurance less the sum paid as premium hy the assignee, and interest thereon. The case is stated in the opinion of the court. Mobinson, for the respondent Kendall. 1. Mrs. Kendall could not assign the interest of her children in the policy, and the assignment to Burroughs carries only an inter- est in the fund which was liable to defeat and which has been de- feated. This would be true in ordinary contracts. General and earlier words are qualified by special and subsequent limitations. This principle will not be questioned. A gift by will to "A B his heirs and assigns," would hardly be called absolute if it was subsequently limited to a trust estate. Mrs. Kendall's interest in the contract is liable to defeat, and an assignee can acquire no greater rights than hers. The assignee is fully apprised of the infirmity by, the instrument itself. The contract is with a third person yet to be created. The natural guardians are to die and a special guardian is to be appointed. Take the present popular form of insurance policy, the endowment policy payable at a fixed 1 Ante, 27. 64 SUPREME COURT OF CONNECTICUT. Connecticut Mutual Life Insurance Company v. Burroughs. time ; let it run to A B upon the life of C D, and in case of A B's death before the fixed time of payment, to E F, both having an insurable interest in C D. Can it be seriously claimed that A B can assign E F's interest away ? The phrase " her executors, administrators, or assigns " gives no power of absolute alienation. It is simply a provision for her death after the death of her hus- band and before the contract time of payment. In the case at bar this period was nearly fifteen months, and it is in some cases much longer. Insurance companies are often puzzled to know who can legally discharge the policy, and this provision covers all the cases which can arise. 2. The contract of life insurance is peculiar, and especially favorable to tlie claim of this respondent. Policies beneficial to a wife are not like the ordinary choses in action of her separate estate. They are designed to keep in the family a pecuniary fund to supply the loss of the supporter of the household. Tlius at common law, before the enactment of statutes and the granting of charters which explain the policy in question and other modern policies beneficial to families, it has been held that a life policy for the benefit of a wife and her issue could not be reduced in its amount even by a court of equity, although the husband and wife lived apart, had no issue, and were altogether unlikely to have any, and although the family was in want simply on account of the rights of issue protected by the policy. Ellis on Life Insurance, 199. But the policy in question cannot be absolutely aliened by the wife because it is made under the charter of the company, which most clearly intends provision for the family of the husband and preservation of the fund entire for the benefit of children. 3 Private Acts, 645. This charter alone enables mai'ried women to make such contracts. The section is taken from the statutes of New York, (1840,) and has been substantially incorporated into our own public acts. The provision is for the husband's familv. The policy is to be payable to her in case of her surviving her hus- band. The policy " shall " be so payable and " may " be to her children in case of death. " May " is used because wives.may have no children, and is to be construed " must " when there are children. Any other construction of tlie statute would open the door to abuse of the grossest kind. If the assignee's claim is correct then the wife can charge this fund at her pleasure, can make a donation of it, and can dispose of it by will, which is utterly inconsistent with SEPTEMBER, 1867.. 65 Connecticut Mutual Life Insurance Company v. Burrouglis. the intent of the policy. Tlie courts hold that such disposition cannot be made, Moehring v. Mitchell, 1 Barb. Ch. 272, post, 353. The language of the policy in that case is precisely like the one under discussion " to her, her executors, administrators, and assigns," " for her sole use ; " but the court says : " There was no power reserved in the policy authorizing the wife to dispose of the insurance, by will or otherwise, in the event which occurred; " i. e. her not having survived her husband. iThe phrase " executors,',' &c. is not intended as giving a power of absolute alienation, but is supplied by the company for the purpose above suggested. This class of policies has received little discussion in court because of its modern birth, but the precise point was decided in 1862 in the court of appeals of the State of New York. Hadie v. Slimmon, 26 N. Y. 9, post, 567. This case has been universally accepted by life insurers as the true construction. The case is analagous to the one at bar, both in the phraseology of the policy and legislative au- thority to the companies. 3. The whole fund is payable to the child's guardian. Not even the premium advanced by the assignees can be recovered of the company ; they are mere volunteers in their relation to us, and a volunteer obtains no lien upon the policy by paying the premium. Burridge v. Row, 1 Younge & Coll. Ch. 188. They have specu- lated upon the chances of the wife's surviving the husband and have lost. Any other view than this one would corrupt the system of life insurance and change its very nature ; would take it away from the guidance of Christian benevolence, and make it a servant of fraud and an invitation to speculate and gamble upon the chances of most precious life. T. G. Perkins ^ McFarland, for the respondent Burroughs. 1. Mrs. Kendall, having an insurable interest in the life of her husband, purchased of the petitioners a policy of insurance for f 5,000 on his life. For this she paid |152 for one year's premium, and in order to retain and continue the policy by its terms she was bound to pay the same sum each succeeding year during his life. The contract of insurance was between her and the insurance com- pany. In consideration of a sum of money paid by her the com- pany agree " to and with the said assured, her executors, &c., well and truly to pay .or cause to be paid the said sum insured to the said assured, her executors, administrators, or assigns, for her sole use, within ninety days after due notice and proof of the death of 66 SUPREME COURT OF CONNECTICUT. Connecticut Mutual Life Insurance Company v. Burroughs. the said George Kendall, deducting therefrom all notes from her for premiums unpaid at that date." The transaction briefly and in legal effect stated, amounts to this : Mrs. Kendall, for a certain sum paid and a like sum to be paid annually during the life of her husband, purchased of the petitioners a promise to pay to her, her personal representatives, or assigns, ninety days after her husband's decease, 15,000. If it were not for a subsequent clause in this pol- icy of insurance it would seem impossible to raise even a question as to Mrs. Kendall's power to assign this agreement with the in- surance company, with all the rights and liabilities incident to it, especially if it was done (as it was in this case) with the knowl- edge and approbation of her husband. There is no condition in the policy against an assignment. The consideration which im- parted the breath of life to the contract moved from her, and the promise was to her. Nothing else could be done to vest in any person the sole and exclusive interest in the contract and power to transfer that interest. Sailley v. Cleveland, 10 Wend. 159. Bar- bour on Parties, 23. Lawrence v. Fox, 20 N. Y. 268. Treat v. Stanton, 14 Conn. 445. Olapp v. Lawton, 31 Ibid. 95. 2. But it is claimed that the subsequent clause in the policy disabled Mrs. Kendall, even with her husband's consent, from making any assignment of it. That clause is as follows : " And in case of the death of the said Mary E. Kendall before the de- cease of the said George Kendall, the amount of said insurance shall be payable after her death to her children, for their use, or to their guardian if under age, ninety days after due notice and proof of the death of the said George Kendall as aforesaid." We shall endeavor to show in the first place that there is nothing in this clause that upon general principles of law would destroy or impair the right of transfer ; and in the second place that there is nothing in the statute laws of the state or the charter of this com- pany that in any manner affects this right. (1.) The direction of Mrs. Kendall to pay the amount of the policy to her children in a certain event, and the agreement of the company to do so, em- bodied in the policy, is simply the indication of her purpose at that time to give the sum specified in the policy to them in case she died before her husband ; and thus to leave it optional with them to pay the subsequent premiums and continue the policy or to per- mit it to expire. (2.) The proposed disposition in favor of the children was not to take effect till after the decease of Mrs. Ken- SEPTEMBER, 1867. 67 Connecticut Mutual Life Insurance Company v. Burrouglis. dall, the mother, and was therefore strictlj' testamentary, and of course revocable by her at pleasure. 1 Wms. Exrs. 90. (3.) But if we lay out of view the testamentary nature of this proposed disposition and look at it from the only other point of view possible, then it must be held to be on her part an expressed but unexecuted intention to give this sum to her children in a certain event, and this intention she could abandon at pleasure and make a different disposition of the fund. 1 Wms. Exrs. 90. 1 Parsons on Cont. 234. Palmer v. Merrill, 6 Gush. 282, [^post, 166.] This very contingent interest of the children under the policy might also at any time be destroyed by a failure to pay the premiums as they became due. As to any payment by the mother, Mrs. Kendall, their interests were thus destroyed at the end of the current year of the assign- ment, for she never paid any premiums after the assignment. The subsequent premiums were paid by the assignee. From that time, he must in equity be treated as the assured in this pol- icy, — as having the interest in it, and as paying the premiums to preserve the policy for the protection of that interest. It is plain that but for the continuance in life of this policy by the as- signee, it would have expired, and with it all the contingent inter- est of the children. But he continued it in life for his own benefit and to protect his own interest, not for the benefit of Mr. Kendall's children. Practically and in substance it is the same as though he had permitted this policy to expire and obtained a new one pay- able to himself, as he might have done. (4.) The object of the 8th section of the charter of this insurance company, which is a mere copy of the general statute in relation to the same subject, is simply to modify to some extent the statute against fraudulent con- veyances. It does so by enabling any man, no matter what his pecuniary condition, to make a provision for his family by abstract- ing from his assets, to which his creditors might otherwise be enti- tled, a certain sum annually ; but the law does not assume to limit the power of voluntary disposition. It is an enabling act, and pre- scribes what may be done, not what must be. If the assured de- sires to give that to a creditor which the creditor could not obtain by legal compulsion, the law does not prohibit it. (6.) It may be added that inasmuch as the annual premium on this policy amounted to more than f 150, and as it does not appea'- that the premium was paid from the separate estate of Mrs. Kendall, the policy was never within the statute or the section of the charter above referred to. 68 SUPREME COURT OF CONNECTICUT. Connecticut Mutual Life Insurance Company v. Burroughs. Carpenter, J. In 1850 the Connecticut Mutual Life Insur- ance Company issued a policy of insurance on the life of George Kendall for the sum of five thousand dollars, payable to his wife, Mary E. Kendall, " her executors, administrators, or assigns, for her sole use, within ninety days after due notice and proof of the death of the said George Kendall, deducting therefrom all notes taken for premiums unpaid at that date." The policy then pro- vided as follows : " And in case of the death of the said Mary E. Kendall before the decease of the said George Kendall, the amount of said insurance shall be payable after her death to her children for their use, or to their guardians if under age," &c. On the first day of September, 1862, Mary E. Kendall executed a paper purporting to be an absolute assignment of said policy to Jarvis F. Burroughs. She died on the 6th day of October, 1864, and her husband died on the 10th day of the same month, leaving one son. The insurance money is now claimed by the assignee on the one hand and by the son of the assured on the other. The claim of the assignee must depend upon the validity of the assign- ment ; for if the assignor at the time of tlie assignment had no assignable interest in the policy, or if she had an assignable interest which was contingent merely, and that interest has been defeated by the happening of her death before that of her husband, it seems quite clear that the assignee has no valid claim to the fund in question. In the case of Hadie v. Slimmon, 26 New York, 9,^ a policy was issued to a married woman on the life of her husband similar in its provisions to the one now under consideration. The statute of New York on this subject is substantially like our own. She as- signed the policy during the lifetime of her husband and survived him. In a suit to which she was a party, the court held that the instrument had no assignable quality. If we are to adopt the doc- trine of that case as the law of this state, it conclusively settles the question now before us. For the reasoning of the court seems to go so far as to hold that a policy of this description, prior to the decease of the husband, is absolutely and under all circumstances unassignable by the wife. That such should be the law applicable to a policy the premiums on which were paid by the husband, cer- tainly seems reasonable and just ; while on the other hand, if the wife paid the premiums from her own separate estate, it is difficult to suggest a reason why she should not have the same power to 1 Post, 567. SEPTEMBER, 1867. 69 Connecticut Mutual Life Insurance Company v. Burroughs. assign her interest in the policy that she has to assign any other chose in action belonging to her. But in one respect that case is distinguishable from this. There the contingent interest of the wife became absolute bv the death of the husband during her life ; here that interest was defeated by her death during the lifetime of the husband. This distinction renders it unnecessary for us to determine the principal question involved in that case. For if it be conceded on the one hand that Mrs. Kendall had an assignable interest in the policy in question, it must be conceded on the other hand that that interest was a contingent one, and that the contin- gency upon which it was to become absolute never has happened and never can happen. By a reference to the policy it will be seen that it was payable to her only in case she survived her husband ; and in case her hus- band survived her it is expressly provided that the policy shall be payable to the children. By the terms of the policy the mother's interest ceased and the child's interest, which before was contin- gent, became fixed and certain by the death of the mother before that of the father. Unless, therefore, the assignee took a greater interest than the assignor had in the policy, the rights of the as- signee terminated on the death of the assignor. But it is suggested that the clause in the policy making it pay- able to the children, " is simply the indication of her purpose at that time to give the sum specified in the policy to them in case she deceased before her husband ; " and again, that " it must be held to be on her part an expressed but unexecuted intention tc give this sum to the children," which purpose she could abandon at pleasure and make a different disposition of the fund. This argument is ingenious but not sound. The intention was not to give a sum of money to these children, but to make a life policy, in a certain event, payable to them. The intention was not only expressed but executed. The contract was complete, and the money, when due, was payable to the children without any further act on her part. But we do not regard the transaction as a gift. The charter of the company and the statute law required the policy to be made as it was, in order to protect it from the claims of creditors and the representatives of the husband. The object of the legislature was to authorize a reasonable provision to be made for the family of the husband ; for the widow if living, if not, for the children. Mrs. 70 SUPREME COURT OF CONNECTICUT. Southard v. Railway Passengers' Assurance Company. KendaH, when she purchased this poHcy, undoubtedly intended to secure the benefits of this statute not only for herself, in case she survived her husband, but for her children in case she did not, and to that end caused the policy to be made payable according to the requirements of the statute. Having done so, and the contract relations betvreen the company and the children having thereby become fixed, it was not in her power to defeat the purpose of the legislature in respect to the children, and the manifest intention of the parties to the contract by an assignment of the policy during the life of the husband. In addition to this it may be observed that there was at least a moral obligation resting upon her to make this provision for her children. In doing so we must regard her not as indicating a purpose to bestow a gift, but as discharging a moral if not a legal duty. Nor is there any force in the suggestion that the instrument is testamentary in its nature, and therefore revocable. It is not a will, but a contract, authorized and regulated by statute ; and wlien once entered into, it is no more revocable than a promissory note would be, which was made payable to the children after the death of the mother. But it seems that the assignee paid one premium on this policy amounting to $109.74. We think it equitable that the money thus paid should be refunded. The superior court is therfore advised that the assignee is entitled to the sum paid for premium together with the interest thereon fi-om the date of payment, and that the balance of the fund should be paid over to the guardian of the son. In this opinion the other judges concurred. See Eddie v. Slimmon post, 567, and cases cited sub Jin. William L. Sodthard vs. The Railway Passengers' Assur- ance Company.^ (34 Conn. 574. Before Judge Shipman of the U. S. District Court, as aibi- tratqr, July 6, 1868.) Death by viohnt and acdd&ntdl means. — A policy insured the holder against death " by riolent and accidental means within the meaning of the contract and conditions an- nexed." It proceeded to enumerate different kinds of injuries for which the company I This was an arbitratiou ease, and not a suit in court ; but it is believed that it will prove no less valuable to the profession on that account. JULY, 1868. 71 Southard v. Railway Passengers' Assurance Company. were not to be liable. Seld, that this enumeration did not enlarge the meaning of the terms " violent and accidental," and that to render the company liable the injury must be strictly violent or accidental. Rupture caused by voluntary haste. — Hupture caused by jumping from a car and running^ done voluntarily and for the accomplishment of a certain purpose, and unattended by any falling or stumbling, does not constitute an injury caused by accident. The case is stated in tlie decision of the arbitrator, Judge Shipman. This is a claim made by William L. Southard against the above named company for bodily injuries alleged to have been received by him, and by reason of which he avers that he was totally disabled for a considerable time, and prevented from the prosecution of any and every kind of business. The claim is founded upon a policy of insurance issued to the claimant by an agent of the company dated the 21st day of February, 1867, and having three months to run. The company not agi-eeing to the claim made upon them, both parties have submitted the following questions to the undersigned as arbitrator : 1. Did the alleged injury result from an accident within the meaning and intention of the contract ? 2. Was the disability a consequence of disease existing prior or subsequent to the contract ? 3. Is it a case of total disability from all kinds of business ? The contract of insurance made with the claimant is as foUaws : " The Railway Passengers' Assurance Company of Hartford in- sures William L. Southard, of Portland, Maine, against accidental loss of life, in the principal sum of five thousand dollars, to be paid to his family, or their legal representatives, within ninety davs after sufficient proof that the insured, at any time within the term of this policy, shall have sustained bodily injuries effected through violent and accidental means within the intent and meaning of this contract and the conditions hereunto annexed, and such in- juries shall have occasioned death within ninety days from the happening thereof; or if the insured shall sustain bodily injuries by means as aforesaid which shall absolutely and totally disable ■ and prevent him from the prosecution of any and every kind of business, then, on satisfactory proof of such injuries, he shall be in- demnified against loss of time in a sum not exceeding twenty-five dollars per week for a period of continuous total disability not ex- ceeding twenty-six consecutive weeks from the time of the accident and injuries as aforesaid." To this main clause of the policy there are attached certain pro- visions and conditions, among which are the following : 72 SUPREME COURT OF CONNECTICUT. Southard v. Railway Passengers' Assurance Company. . " Provided always that this insurance shall not extend to any injury of which there shall be no visible sign, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of this contract, or by the taking of poison or by any surgical opera- tion or medical treatment for disease. And no claim shall he made under this policy when the death or injury may have been caused by dueling, fighting, or wrestling ; or by over-exertion, or lifting (except in cases of perilous necessity) ; or by suicide (felo- nious or otherwise, sane or insane) ; or by sun-stroke ; or by con- cealed weapons carried by the insured ; or when the death or injury may have happened in consequence of war, riot, or inva- sion, or of riding or driving races, or of unnecessary exposure to danger or peril, or of violation of the rules of any company or cor- poration ; or when the death or injury may have happened while the insured was, or in consequence of his having been, under the influence of intoxicating drinks, or engaged in any unlawful act." Also, " The party insured is required to use all due diligence for personal safety and protection." Upon the evidence submitted to me I find the following facts : In February, 1867, the claimant, Mr. Southard, was temporarily sojourning with his family in Philadelphia, and occasionally passing over the railroad to and from Baltimore, Newcastle, and perhaps other places, purchasing and shipping corn and flour. On the 20th of that month, while on the road from Baltimore to Philadel- phia, he was handed an advertisement purporting to be of this com- pany, and had some conversation with the person who gave him the advertisement about insurance of this character in which the company was engaged. The next day (February 21st) he went to the office of the company's agent in Philadelphia, made a con- tract for insurance, paid the premium of ten dollars, and took a receipt. The policy he received at a subsequent time ; and to that we must look for the precise contract upon which the present claim is founded. The same evening Southard went by train to Newcastle, Dela- ware, on business, and made an engagement to meet a man at the depot the next morning before 8 o'clock, at which time the train started. He went to the depot as agreed, but did not find the man whom he expected. He went on board the train which passed out from the depot and switched back on a side track, when he went to the rear end of the train to inquire of the conductor if he would JULY, 1868. 73 Southard v. Railway Passengers' Assurance Company. know the man he was looking for. The conductor informed him that there were two depots at that place, one about three quarters of a mile distant, and that there was probably some mistake be- tween Southard and the man he had agreed to meet, as to which depot the interview was to take place at. At this point Southard concluded to leave the train, and somewhat excited, as he says, jumped off from the rear end of the train. He felt no shock, and walked briskly to the other depot, where he found the man he was in search of. He remained there till about time for the next train, and then returned to the other depot. While going back, he heard what he supposed to be the train coming in, started suddenly, and ran to where he could see, and found that it was not the train, when he walked the rest of the way to the depot, took the cars and returned to Philadelphia. ■ Some time during the journey from Newcastle to Philadelphia, and on the same day, he felt pain about one knee, but did not refer it to his movements at Newcastle. '^ After he arrived at Philadelphia, and had transacted some busi- ness, he called on a physician and consulted him about dyspepsia, an old complaint with which he had for some time been more or less afflicted. The physician, while examining his person, found a partially developed rupture on his right loin. Southard then referred it to his jumping off the cars or to his running at New- castle. This rupture increased, and finally, for several weeks, disabled him from business. For this disability he claims a weekly com- pensation, under his policy, for the time it continued. The company deny that it is within the scope of their contract. All the facts in regard to the alleged cause of the injury are derived from the statements of the insured. I assume their cor- rectness, and that he was totally disabled for several weeks in con- sequence, and proceed to consider whether or not the contract of insurance covered the injury from which he suffered. The policy is one of indemnity against " bodily injuries effected through violent and accidental means, within the meaning of this contract, and the conditions hereto annexed." Had the terms of the contract stopped at the words " violent and accidental means," there would be no difficulty, in my judgment, in disposing of the questions ; for there was no accident, strictly speaking, in the means through which the bodily injury was effected. It would not help 74 SUPREME COURT OF CONNECTICUT. Southard v. Kailway Passengers' Assurance Company. the matter to call the injury itself, that is, the rupture, an ac- cident. That was the result and not the means through which it was elFeeted. The jumping off the cars or the running was the means by which the injury was caused. Both were done by the claimant voluntarily, in the ordinary way, with no unforeseen, acci- dental, or involuntary movement of the body whatever. There was no stumbling or slipping or falling. There was nothing acci- dental in his movements, any niore than there was in his passing down the steps of his hotel, or in his walking on the street, during each of which he might have had a stroke of apoplexy or a hemor- rhage, a rupture of a blood-vessel in the head or the lungs. True, in jumping from the cars and running, there was more violence, or, properly speaking, more force ; but there was no more accident than in any ordinary movements of the human body. How then, admitting the rupture to have been effected by jumping from the cars or by running to see if they were coming, can it be said that it was caused by accidental as well as violent means? AH the accident there was, was the result of ordinary means, voluntarily employed, in a not unusual way. But the words "violent and accidental means" are followed in the policy by the words " within the intent and meaning of this contract and the conditions hereunto annexed." Now we are to consider how far the former words are qualified by the other parts of the contract, or by the conditions thereto annexed. I have cited from the policy all that can have any bearing on the question. The provision which I have cited from the policy excludes from indemnity death or injury when caused by " dueling, concealed weapons when carried by the insured, fighting, wrestling, over- exertion and lifting (except in case of perilous necessity), suicide, sun-stroke," and also "death or injury happening in consequence of war, riot, invasion, riding or driving races, unnecessary expo- sure to- danger or peril, or violation of the rules of any company or corporation." It also excludes " death or injury happening while the insured is, or in consequence of his having been, under the influence of intoxicating drinks, or engaged in any unlawful act." Now, it may be said that this specific exclusion from the scope of indemnity of death or injury happening from Causes and under cir- cumstances expressly set forth, leaves, by fair implication, death or injury from all other causes and under all other circumf^tances in- cluded in the contract of indemnity thus logically inverting of JULY, 1868. 75 Southard v. Railway Passengers' Assurance Company. complementing the maxim expressio unius est exelusio alterius. But in applying this well-known rule of construction, reference must be had to the main body of the contract and to its subject matter. It is not, nor does it purport to be, a contract of indemnity against death or injury effected by all means. The cause of the death or injury must in all cases be " violent and accidental," or the event is without the scope of the contract. The instrument by its terms embraces only cases where the elements of force and accident con- cur in effecting the injury. The cases excluded are only those which belong to the same class. The contract declares to the in- sured that though he may be killed or injured through violent and accidental means, yet if the calamity occurs under certain circum- stances the insurers will not be liable. Violent and accidental death or injury might occur, and often does occur, under the cir- cumstances enumerated in the excluding clause. The contract, as I. have already intimated, in its broadest scope only embraces within its indemnity personal injuries effected through forcible and accidental means ; and the proviso simply excludes from this class of injuries all that occur under the circumstances enumerated. All others of this class are included. The degree of violence or force is not material ; and had tjie insured in this case in jumping from the car lost his balance and fell, or struck upon some unseen object and wounded himself, or in running had stumbled or slipped on the ice, his injury might be attributed to accidental as well as violent means, and assuming that there was no want of due diligence on his part his misfortune would have been covered by the policy. But as I have already stated, the injury which he received was in no sense the result of accident. He jumped from the car with his eyes open, for his own convenience, and not from any perilous necessity. He encoun- tered no obstacle in doing so. He alighted erect on the ground, just as he intended to do. So in running. He ran from no peril or necessity, but for his own convenience, voluntarily, and from all that appears, without stumbling, slipping, or falling. In both cases he accomplished just what he intended to, in the way he intended to, and in the free exercise of his choice. No accident of any kind interfered with his movements, or for an instant relaxed his self- control. All that he claims is that some hours after it was discov- ered, a muscle in the walls of the abdomen had given way under the strain to which he had voluntarily put it under circumstances 76 SUPREME COURT OF CONNECTICUT. Kelsey v. Universal Life Insurance Company. free from all peril or necessity. Assuming that this rupture was caused either by his jumping, or running, or both, does not help the matter unless we call running and jumping accidents. I therefore am of opinion that the alleged injury did not result from an accident, within the meaning of the contract. This dis- poses of the whole case ; and it follows that Mr. Southard has no valid claim on the company. Otis S. Kelsey vs. The Universal Life Insueance Company. (35 Conn. 225. Supreme Court, September, 1868.) Admissions. — In an action upon a life policy by the party for whose benefit it was made, letters of the insured written a few days before the application was made, in which she speaks of the state of her health, are admissible in evidence to contradict the statements made in the application. Warranty. Misrepresentation. — A life policy contained the provision that the statements made in the application were in all respects true, and without the suppression of any fact relating to the health of the insured. Held, that the statements were tlius made war- ranties; but that even if not warranties the statements in controversy were material to the risk, and if untrue would avoid the policy. Assumpsit upon a life policy made for the benefit of the plaintiff upon the life of his wife. The case is sufficiently stated in the opinion of the court. T. Q. Perkins, (with whom was Sill,~) for the plaintiff. 1. The admissions of the wife, both oral and written, should have been excluded. They were mere declarations of Mrs. Kelsey. They were no part of any res gestm ; were not connected with any observation of symptoms by the party to whom the remarks were addressed ; nor with any examination of her physical condition ; nor made to any medical attendant. The contract was with the husband. The fact that she was his wife did not make her declara- tions admissible. Benjamin v. Benjamin, 15 Conn. 347. Nor the fact that her life was insured. Her declarations were no more ad- missible than those of a debtor would be whose life a creditor had insured; he could not admit away the rights of his creditor. Nor are her declarations made admissible, because the office, before issuing a policy to the husband, required her to sign this state- ment. If untrue it is to be disproved in the usual way. The office does or may also require a certificate of a friend or phy- sician as to certain facts. These persons cannot afterwards confess away the rights of the assured. She was not even the agent of SEPTEMBER, 1868. 77 Kelsey v. Universal Life Insurance Company. her husband in this matter, in any sense. Even had she been, her declarations would not be admissible against him. 1 Greenl. Ev. § 113. Story on Agency, §§ 134—187. Before entering into a contract with the plaintiff, the office required a certain statement to be signed by a third person. It is now claimed that by reason of this, such third person may confess away his rights. This can- not be done. Rawh v. American Mat. Life Ins. Co. 27 N. Y. 282, 290, [post, 549.J Fraternal Mut. Life Ins. Co. v. Applegate, 7 Ohio S. R. 292, [post, 629.] Stobart v. Dry den, 1. Mees. & Wels. 615. 2. The proposition is untrue, that the whole of this application is a warranty, and that the policy is utterly void unless the state- ments in every particular are literally correct. Especially when the application is filled up by the agent of the company. Wood- bury Savings Bank v. Charter Oah Insurance Co. 31 Conn. 526. Here it is not in terms declared to be a warranty, either in the policy or application. The office well know the distinction between a warranty and a representation, and place their claim to rescind the policy on the latter ground only. For the general history of the origin and progress of the doctrine of warranty, see Grlendale Manufacturing Co. v. Protection Insurance Co. 21 Conn. 32. An- other special fact in this case is, that this is an office formed to take invalid lives at higher premiums, and this risk was taken as such. Originally, the assumption was that the vessel insured was sound and sea-worthy ; that was an implied warranty. Here we start with the assumption that the life is unsound. The rule orig- inally would doubtless have been different, if the parties had started upon the assumption that the ship was rotten or unsound. The character of the statements in the application is such that a prelim- inary proof of their literal truth is substantially impossible. The whole course of decisions is not to extend the doctrine of warranty. Sayles v. Mrth Western Insurance Co. 2 Curtis C. C. R. 610, 616. Glendale Manufacturing Co. v. Protection Ins. Co. 21 Conn. 32, Jefferson Ins. Co. v. Ootheal, 7 Wend. 80. To create a warranty, language to that effect must be unambiguous ; if not, the construc- tion is against the insurers. Merrick v. Germania Fire Ins. Co. 54 Penn. S. R. 284. Nichols v. Fayette Mut. Fire Ins. Co. 1 Allen, 63. Hall V. Peoples Mut. Fire Ins. Co. 6 Gray, 185, 191. Dan- iels v. Hudson River Fire Ins. Co. 12 Cush. 416. Chaffee v. Cat- taraugus County Mut. Ins. Co. 18 N. Y. 376 78 SUPREME COURT OF CONNECTICUT. Kelsey v. Universal Life Insurance Company. OJiamberlin ^ Rohinson, contra. HiNMAN, C. J. The plaintiff complains of the ruling of the superior court in respect to the. admission of evidence, and also of the charge of the court to the jury. He claimed to recover on a policy of insurance on the life of his first wife, and being himself an important witness in his own favor, he was on cross-examination asked how nearly he could tell the date of his second marriage. To this question his counsel objected, on the ground of its irrele- vancy, and because the answer might prejudice the plaintiff and his case in the estima^on of the jury. But the court permitted the question to be put, in order to test the accuracy of the witness's memory. It appears to us that this ruling was so far a matter ot discretion with the court that a new trial ought not to be granted on account of it. It is said that the inquiry related to a matter wholly irrelevant to the issue. In one sense it undoubtedly is so, since his second marriage, and the time of it, could have no influ- ence upon his right to recover upon the policy on the life of his first wife. But the credit that is to be given to the testimony of a witness is always material, and may depend very much upon the accuracy of his memory, as well as upon his disinterestedness and honesty. And in the case of a witness standing as this one did — the sole party plaintiff in the suit — who was charged by the defendants with having procured a large insurance upon the life of his wife at a time when he knew or might easily have known that she had a fatal disease fastened upon her, the court ought to allow such inquiries as would test him most fully. As remarked by Savage, C. J., in Lawrence v. Barker, 5 Wend. 305, " There may be cases where great latitude of examination may be permittee, arising from the disposition, temper, and conduct of the witness, which can be regulated only by the discretion of the court, and for which it is difficult to lay down a precise rule." And this court, in Steene v. AyleswortJi, 18 Conn. 244, lays down the proposition, that on the cross-examination of a witness much must be left to the discretion of the judge. In this case the witness had been isked if he remembered the date of his first marriage, and he fixed the year by reference to his own age at the time ; and immediately the question as to the time of his second marriage was put, and on objection allowed, to still further test the accuracy of his memory. We think under the circumstances the court must be held to have exercised its discretion properly in allowing the question to be put. SEPTEMBER, 1868. 79 Kelsey V. Universal Life Insurance Company. But it was objected that the answer of the witness might tend to prejudice the plaintiff's case in the estimation of the jury. If this was so, it was for the witness to object to giving an answer, and not for his counsel engaged in the trial ; and it does not appear from the motion that the witness himself had any objection to an- swering the question. In the case of Thomas v. Newton, reported in Mood. & Malk. 48, note. Lord Tenterden said that an objection of this sort belonged to the witness, and he would not permit coun- sel even to argue it. See also Commonwealth v. Shaw, 4 Cush. 694. Besides, the answer which the witness gave to the question shows that the plaintiff's case could not have been prejudiced by it. His second marriage was not far from six months after the death of his first wife. The fact that he had procured a policy for a large amount on the life of his first wife, so near the time of her death, and then in so short a time afterwards, and while this suit was pend- ing upon that policy, married again, might tend to show that he had no very delicate feelings in respect to her memory ; but this probably is not unfrequently the case in respect to the parties to suits ; and we are not aware that it tends to prejudice their causes in the estimation of juries. We do not think a new trial ought to be granted on this ground. Again it is claimed that the court erred in admitting in evidence certain declarations and letters of Mrs. Kelsey, made and written about the time the policy was issued. In her application for the policy, she had represented herself in her usual state of health, as having never had any disease except a slight bronchial difficulty in the winter, nor any serious illness or local disease, nor any disease tending to impair her constitution ; and that when she had any medical attendant it was Dr. Hawley. And the declarations and letters received in evidence tended strongly to contradict these statements. The claim of the defendants was that the statements in the application were untrue, and known to be so by the plaintiff; and that the policy was therefore obtained by fraudulent representa- tions in respect to Mrs. Kelsey's health ; and these declarations and letters, contradictory to her statements in the application for insur- ance, were received for the purpose of proving the fraud. The ruling on this point is fully sustained by the case of Aveson v. Lord Kinnaird, 6 East, 188. That was also an action on a life policy on the plaintiff's wife, and, as in this case, the wife had made rep- resentations in her application for the policy in regard to her health 80 SUPREME COURT OF CONNECTICUT. Kelsey v. Universal Life Insurance Company. which were allowed to be disproved or contradicted by her subse- quent declarations to a witness. The difference between the two cases in this respect seems to be, that in the case in East, the decla- rations proved were made shortly after she had made her statement to a medical man in order to procure a health certificate, while in the case under consideration the declarations and letters were made and written just before or not long before her statement in the ap- plication for insurance. But this surely is unimportant, since it is equally competent to prove the condition of the life insured before and after the time of the insurance, with a view to show what its condition was at that time. And all that is required is, that the declarations and acts proved should not be so remote from the time as to shed no light on the health of the party at the time. One important ground upon which such declarations are received is, that they are part of the res gestce. The subject of inquiry is the health of the person whose life is insured at the time the insurance is effected, and no one can have so perfect knowledge of that as the person himself. Medical men always arrive at their conclusions in respect to "health by information in part derived from what their patients say ; and what is said by them under circumstances which preclude any suspicion or collusion, is as fairly a part of the res gestae in respect to health as symptoms learned from other sources. But the court charged the jury " that the conditions and agree- ments mentioned in the policy, having reference to the application, which was a part of the condition upon which the policy issued, are warranties of facts, which must be proved true in all particu- lars," and the plaintiff insists that this charge is incorrect in point of law. In the body of the policy, under the heading of " Condi- tions and agreements," is this first condition as to the application. " First, that the statements and declarations made in the applica- tion for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health or circumstances of the insured, affecting the interests of this company." The reference here to the application is as clear and precise as in the case of Jennings v. Chenango County Mutual Ins. Co. 2 Denio, 75 ; and the facts stated in the application in that case were held to be warranties. It is true that in that policy the reference to the application alluded to it as forming a part of the policy, while in the case under consideration the words are that the policy is made on the faith of the aj^plication, and that the SEPTEMBER, 1868. 81 Kelsey v. Universal Life Insurance Company. statements in it are in all respects true. But we think this stipu- lation makes the truth of the material facts in the application as much a matter of contract obligation on the part of the insured, and conditions upon which the policy issued, and on the truth of which it was only to bind the company, as if the same had been embodied in the policy itself. And this has been the uniform doctrine of this court. As remarked by Judge Dutton, in Woodbury Savings Bank V. The Charter Oak Insurance Company, 31 Conn. 525, it has maintained the integrity of contracts, and the necessity of a strict compliance with all conditions affecting their validity. And he refers to several of our insurance cases, in which statements con- tained in applications for insurance have been held, with great uni- formity, to be warranties. Judge Sherman, in the case of Wood v. The Hartford Fire Insurance Co. 13 Conn. 544, perhaps states the law as strongly as it is anywhere laid down, and it may be said goes to the verge in his statement of it. Yet the doctrine as he states it, though somewhat questioned by Judge Ellsworth, in the G-lendale Manufacturing Company v. Protection Insurance Comfany, 21 Conn. 32, as applicable in all cases to fire policies, has never been overruled. While, however, we are satisfied that the charge of the court was correct in this case, it is proper to remark that in our opinion it is not very important whether the statements in this application be regarded in the light of technical warranties, or be treated as mere representations of fact, which must be substantially true. The facts stated in the application regarding the health of Mrs. Kelsey, must be admitted to be important and material to the risk ; and therefore, if uijtrue, would avoid the policy as fully as if they were considered as technical warranties. If untrue, as we have no doubt the jury must have found them to be, the plaintiff, and especially his wife, who was his agent to make the application, must have known them to be so, and as they were not disclosed to the com- pany at the time the insurance was eflFected, the plaintiff is justly chargeable with fraud in procuring an insurance upon such a life. And the application itself provides expressly that any suppression of facts or any untrue or fraudulent answers shall render the policy void. And it would seem that there can be but one opinion on the question of fraud, if Mrs. Kelsey's letter to her mother but three days previous to her application for the policy is to be re- garded as true. In that letter she expressly states that the doctor 82 SUPREME COURT OP CONNECTICUT. Kelsey v. Universal Life Insurance Company. says her lungs are healing, and that he thinks if she lives till spring she will get well. And the whole letter indicates that in her opin- ion there was doubt as to her living till spring, in consequence of the condition of her lungs. Now if it be admitted that her hopes of final recovery were so strong as to induce her to say in her ap- plication three days after that she only had a slight bronchial diffi- culty in winter, how could the husband, knowing as he must have done what the doctor said of her lungs, allow her to sign an ap- plication for insurance upon her life in which it is said she never had had any serious illness ? Without therefore alluding to the fact that in this very letter she speaks of another physician than Dr. Hawley, under whose treatment she had been, we can have no doubt that the jury must have found the fraud submitted to them. We are therefore satisfied that the case was correctly put to the jury on the question of fraud, as well as upon the question of warranty ; and that it was correctly disposed of by them. We do not advise a new trial. In this opinion the other judges concurred. Note. — Upon the point respecting the admissibility of the declarations and the letters of Mrs. Kelsey, this case is in conflict with Ratals v. American Mut. Life Ins. Co. post, 549, 558. As to warranty and misrepresentation, see Campbell v. New England Mut. Life Insurance Co. post, 229, and cases cited. GEORGIA. The Mottal Benefit Life Insurance Company, plaintiff in error, vs. John C. Ruse. (8 Ga. 534. Supreme Court, July, 1850.) Payment of premium. — A insured the life of 6 in a policy conditioned to be void in case tlie said A should not pay the annual premiums on or before the 10th of April in each year. In a prospectus of the company delivered by the agent, it was stated that any one neglecting to pay his premium for thirty days after the same became due, forfeited the Insurance. The policy contained no reference to this prospectus. On the 14th of April, four days after an annual premium became due, B died, and soon after, within the thirty days, A tendered the premium to the company who refused to receive it. Seld, that the prospectus, if admissible, could not be construed to extend the time of payment of the premium beyond the death of the assured, though tendered within the thirty days, and the plaintiff could not recover. Verdict and judgment for plaintiff below. Motion for new trial by defendant overruled, and error assigned thereon. The case is stated in the opinion of the court. ff. Roll, for plaintiff in error, cited the following authorities in support of the ground taken for a new trial : 1 Phil. Ins. §§ 24r-30 ; [§§ 65-70, 5th ed. ;] HigginBon v. Ball, 13 Mass. 96 ; Vander- voort V. Smith, 2 Gaines, 155 ; Cheriot v. BarJcer, 2 Johns. R. 346 ; Barks v. Greneral Interest Ins. Oo. 5 Pick. 37 ; Boutledge V. Burrell, 1 H. Black. 255 ; Wood v. Worsley, 2 H. Black. 574 ; Tarleton v. Staniforth, 5 Term, 695 ; Salvin v. James, 6 East, 571 ; Want v. Blw/a, 12 East, 183 ; Acey v. Fernie, 7 Mees. & Wels. 151 ; Buncan v. Sun Fire Bis. Oo. 6 Wend. 488. R. L. Benning, for the defendant in error, cited the following authorities as to the admissibility of the prospectus : 1 Phil. Ins. § 30 ; [§§ 65-70, 5th ed. ;] Want v. Blunt, 12 East, 183 ; 6 East, 571 ; 5 Term, 695 ; 1 Greenleaf Ev. [§ 207 et seq. ;] 12 Wheaton, 505 ; 4 Cowen, 645. Thirty days similar to days of grace, and rule respecting latter, Bayley on Bills, 241, 243, 6th ed. ; 9 Whea- ton, 581 ; 1 Peters, 25 ; 6 Mass. 449 ; 17 Mass. 449 ; 9 Pick. 420. Construction of policy, 2Binney, 373; 1 Burrow, 349; 12 Whea- ton, 383 ; 2 Marshall on Ins. 796. 84 SUPREME COURT OF GEORGIA. Mutual Benefit Life Insurance Company t>. Kuse. NiSBET, J. The errors assigned grew out of the refusal of the " court below to award a new trial at the instance of the defendant below. The specifications of error are the grounds taken in the rule for a new trial. But counsel for the plaintiff in error relied, before this court, only upon two of those grounds, to wit : 1. Because the court erred in permitting said pamphlet, or any portion thereof, to be read in evidence on the trial of said case. 2. Because the court erred in this, that when the attorney for the plaintiff requested him to charge the jury that the pamphlet in evidence proved that the party was allowed thirty days in which to pay the premium, the court refused, saying that the language was equivocal, and that he would refer it to the jury for their con- struction. The pamphlet referred to purports to be the rules and regula- tions of the plaintiff in error, — " The Mutual Benefit Life Insur- ance Company." It contains numerous statements or rules which relate to the business, and the manner of conducting it, of the company. It does not appear to have been published by the au- thority and direction of the company ; but it was proven that pam- phlets of like character with this were handed out, at different times, by the company, to persons wishing to deal with them, and making inquiries as to the terms, &c., of insurance. In this pam- phlet, among other things, is the following article : " A party neglecting to settle his annual premium within thirty days after it is due, or paying assessments within sixty days, as specified in the charter, or refusing to give satisfactory security upon the note, forfeits the interest he has in the policy." The plaintifiF below read in evidence the policy, by which the premiums are stipulated to be paid annually on the 10th of April, and in which it is further stated, " in case the> said John C. Euse (who was the party who had insured the life of a Mr. Bugby) shall not pay the said annual premiums on or before the said sev- eral days hereinbefore mentioned for the payment thereof, then, and in every such case, the said company shall not be liable to the payment of the sum insured, or any part thereof, and this policy shall cease and determine." It was further in evidence that Bugby, the person whose life was insured, died on the 14th of April, four days after the time when, by the policy, the premium was payable, and that after his death, and within the thirty days, the premium was tendered, JULY, 1850. 85 Mutual Benefit Life Insurance Company v. Kuse. which was due on the policy on the 10th of April preceding, and refused by the company. Under these circumstances the pam- phlet referred to, and more particularly that portion of it before recited, was admitted in evidence for the plaintiff below. The manner in which the second ground of error is stated in the record is somewhat equivocal. The language of the rule is stated to the effect that the court erred in this, that when coun- sel for the plaintiffs requested him to charge the jury that the pam- phlet in evidence proved that the party was allowed thirty days in which to pay the premium, the court refused, saying that it was equivocal, and that he would refer it to the jury for their own con- struction. Now it is hardly to be presumed that the plaintiff in- tended to bring before this court, as error, the refusal of the court to charge a proposition at the request of the other side, which he maintains is unsound. The refusal of the court thus to charge was negatively in his favor, and he would not except to a decision in his own favor. Such exceptions and alleged error would reach no point in the first instance and would ~be abused in the second. I apprehend that the real grdund of error is the refusal of the court to put the true legal construction upon this thirty day clause in the pamphlet, but left that to the jury, in saying to them, it was equivocal and for their construction. The question made by these assignments is this : What, in the state of the case, is the legal effect of the clause in the printed pamphlet? This is clearly a question for the court. He ought to have instructed the jury as to the law which should govern the rights of these parties arising under this policy, and the facts proven, and this article of the pamphlet. He did not do so, but left the construction to the jury. The defendant had a right to complain of this, for, the pam- phlet being in evidence, the jury was bound to believe that it was legally before them. If in law the obligation of the defendants to pay the insurance's not affected by this clause in the pamphlet, why, then, the admission of it in evidence, and the failure to in- struct the jury as to its legal effect, was a virtual ruling against the rights of the defendants. Upon the hearing of the cause we thought that there was no error in the admission of the pamphlet, it being put out as the terms and conditions of insurance, by the defendants, and, on that account, to be considered by the jury subject to the control of the court in its right and obligation to pronounce upon its effect in law upon the policy. Upon looking 86 SUPREME COURT OF GEORGIA. Mutual Benefit Life Insurance Company v. Ruse. into the authorities, I am satisfied that we were in error, and, for myself, I now correct it. I am now convinced that its admissibility depends upon its effect on the contract, and if, as we hold, it does not vary the policy so as in any way to affect the liability of the company thereon, it was not admissible. This question becomes immaterial, as the judgment we pronounce upon the clause in the pamphlet will control the cause so far as that clause is concerned with it. My correction, thereforej of what to me appears to be an error, does not at all interfere with the judgment of the court, as pronounced at the hearing. Its discussion, however, is of some importance, for the reasons which exclude the pamphlet as evidence shed light upon the construction which we give to it. The position of the plaintiff below is, that this pamphlet, being promulgated as containing the terms and conditions upon which the company insures, they are bound by it, its declarations enter- ing into and constituting a part of their contracts of insurance, and that the meaning and legal effect of the thirty day clause or rule are that, if the premium is paid or tendered at any time within the thirty days, it extends the contract so as to hold them liable for the insurance, even when, as in this case, the insured dies after the time stipulated in the policy for the paymerft of the premium, and before the tender or payment. I do not mean to say that in no case and for no purpose would this pamphlet be admissible. In this case it is inadmissible, because it cannot be construed so as to enlarge or extend the terms and obligations of the contract as contained in the policy. It is to be noted that the policy contains no reference whatever to the pamphlet ; of course none to that part of it now being considered. It is further to be noted that the policy expressly provides that the premiums shall be paid annually, on or before the 10th day of April in every year during its continuance. And it is also to be carefully noted thalAhe policj' explicitly declares that if the premiums are not paid on or before the 10th day of April, annually, the company shall not be liable to the pay- ment of the sum insured, or any part thereof, and the policy shall cease and determine. What then is the contract as declared, in the policy? It is that for the premium expressed the company insures the life of Mr. Bugby at the amount ($2,000) stipulated. The contract is from year to year, and dependent for its continu- ance upon the payment of the premium on or before the 10th day JULY, 1850. 87 Mutual Benefit Life Insurance Company v. Kuse. of April in every year. This is necessarily the duration of the contract because of the express declaration, that if the premium is not paid on or before that day in every year the company shall not be Uable and the policy shall cease and determine. This policy, then, was of force up to the 10th day of April, 1847 ; the premiums anterior to that date being paid. The premium due on that day not being paid, the policy on that day ceased and determined. At and after that day there was no contract between the parties. Bugby was not insured, and from thenceforward the parties stood relatively to each other as they did before any contract had been made. Bugby, the insured, dying subsequently to that day, his insurer had no more right to call upon this company for the insur- ance than upon any other company or citizen. Such is clearly the truth, as to this contract, found in the policy itself. Indeed, the plaintiff does not pretend to rely upon the policy alone ; his reliance is upon the pamphlet connected with the policy. There is no rule of evidence better established than that parol evidence shall not be admitted to disannul, or substantially vary, or extend a written agreement. Ch. Kent in N. Y. Ins. Co, v. Thomas, 3 Johns. Cases, 4. There are exceptions, it is true, as in case of an amhiguitas latens. I shall not consider the exceptions, except so far as they relate to policies of insurance. Now, so far from the rule being relaxed in cases of contracts of insurance, it applies to them " par- ticularly and emphatically." 3 Johns. Cases, 4. Skinn. 54. " Policies (says Ch. Justice Parker) though not under seal, have nevertheless ever been deemed instruments of a solemn nature, aYid subject to most of the rules of evidence which govern in cases of specialties. The policy itself is considered to be the contract be- tween the parties, and whatever proposals are made, or conversa- tions had, prior to the subscription, they are to be considered as waived, if not inserted in the policy or contained in the memo- randum annexed to it." Higginson v. Ball, 13 Mass. 96. 'Whatever is contained in the policy, or written upon it at the time of signing, is a part of the contract, and is adopted by the signature, whether the words are in the margin, or put in by con- sent after signing, or written transversely, or indorsed. 3 Esp. 121. 1 T. R. 343. 7 Johns. 527. 1 Caines, 60. Doug. 12 note. Now, if this policy had referred to this printed pamphlet, it would have become thereby a part of the contract. So are the authori- ties. 1 H. B. 254. 2 Ibid. 677. 6 T. R. 710. 5 Ibid. 695. 88 SUPREME COURT OF GEORGIA. Mutual Benefit Life Insurance Company v. Buse. S. C. 1 B. & P. 471. 3 Anstr. 707. From which affirmative proposition, logically, it follows, that if the printed proposals are not referred to they are no part of the contract. If by mistake the policy is so framed as not to correspond with the previous agreement of the parties, equity will correct and re- form it, as in case of other contracts. 1 Duer on Ins. 71 , 73. Again, if the terms used in the policy, or representations made to the insurer, have, by the kncfwn use of trade, and the practices as between the insurers and the insured, acquired an appropriate or commercial sense, they are to be construed according to that sense. All mercantile contracts, if dubious or made in reference to usage, may be explained by parol evidence of the usage. " But the rule (says Ch. Kent) is checked by this limitation, that the usage, to be admissible, must be consistent with the principles of law, and not go to defeat the essential provisions of the contract." 3 Kent's Com. 260.1 7 Johns. 385. 12 Wheat. 383. 3 Bing. 61. 6 Pick. 131. 1 Hall, N. Y. 619. The plaintiff in this suit can bring his case within no one of these qualifications of the rule. There is no latent ambiguity in this policy, no interlineations, marginal or transverse writing, or in- dorsements ; no reference to printed proposals, rules, or regulations ; no pretence that by mistake it is not drawn according to the pre- vious understanding of the parties. It is, however, insisted that this contract is to be construed in the light of the usage indicated in the rule in the printed pamphlet, and that it ought, therefore, to have been admitted in evidence. It does not indicate a mercantile usage. If admissible at all, it must be upon the idea that it proves a usage or practice between the insurers and those who deal with them. Let it be so considered. When and under what circum- stances is such a usage provable ? I answer : 1. When terms are used in a policy, or representations are made to the insurer, which have, by usage, an appropriate com- mercial sense, they are to be understood in that sense, and the usage may be proved. In this case no question is made about the construction of words in the policj'', or about representations made to the insurers. The whole question grows out of the extensive independent article as found in the printed proposals. 2. The usage is provable only where there is an ambiguity in 1 2 Kent, (11th ed.) 746 ; 3 Ibid, (same ed.) 344-347, 404, 405. JULY, 1850. 89 Mutual Benefit Life Insurance Company v. Ruse. the policy. Here there is none. It is as clear as the light of day. The parties have expressed their meaning with unmistakable per- spicuity, and having so expressed themselves, they are to be con- sidered as agreeing to be bound accordingly, and as having ex- pressly excluded all aliunde facts, circumstances, and usages. I find the doctrine upon this head very clearly stated by Mr. J. Story, in the case of the Schooner Meeside : " The true and appro- priate office of a usage or custom is, to interpret the otherwise in- determinate intentions of parties, and to ascertain the nature and extent of their contracts, arising, not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word or words in a given instrument, when the word or words have various senses ; some common, some quali- fied, and some technical, according to the subject matter to which they are applied. But I apprehend it can never he proper to resort to any usage or custom to control or vary the positive stipulations in a written cotitract, and a fortiori not in order to contradict them." 2 Sumner, 569, 570. See, also, to the same effect, Lord Denman's opinion in Trueman v. Loder, 11 A. & E. 589 ; 1 Hall, N. Y. 619; 6 Taunt. 445 ;i [2] Cromp. & Jervis, 244; 7 Wend. 270; 8 Ibid. 160; 7 Conn. 202; 7 Johns. 385; 3 Kent's Com. 260 ;2 1 Phil, on Ins. 252 ; ^ 3 Johns. Cases, 1 and notes ; 1 Paige, 278 ; 18 Mass. 99. If this pamphlet is admitted, it is by the invocation of parol tes- timony. Of itself it proves nothing, as it bears no evidence of being the act of the parties. It is produced as containing the usage by which it is alleged the company is bound. It is set up by parol ; its promulgation is given by parol ; and if admitted it is brought to bear upon the policy by the aid of parol evidence. If admitted it contradicts the express stipulations of the policy. The policy declares that if the premiums are not paid on or before the 10th day of April it shall cease and determiije. The pamphlet, according to the construction put upon it by the plaintiff, declares that the policy shall not cease and determine on that day, but shall continue for thirty days longer, if within that time the premiums are paid or tendered. Upon such views, and the authorities re- 1 This is a wrong citation. s 2 Kent, (11th ed.) 746 ; 3 Ibid, (same ed.) 344-347, 404, 405. 3 §§ 132 ei seq. 5th ed. 90 SUPREME COURT OF GEORGIA. Mutual Benefit Life Insurance Company v. Euse. ferred to, I am clear that the pamphlet ought not to have been admitted. Being admitted and considered as obligatory upon the parties to the extent of its legal eflFect, I inquire, what is the legal effect of this article ? I answer, negatively, that it is not to vary the terms of liability agreed upon by the parties, and does not extend the protection of the policy beyond the 10th day of April, annually. The principles of evidence which exclude it as testimony show the reason of this construction. I shall only further show, that to this effect has gone the judgment of the courts of Great Britain in cases even stronger for the view of the plaintiff than this. The great case upon this subject is Tarleton et al. v. Staniforth et al. 5 T. R. 695, in which the question made is exactly the question made here, under a state of facts very similar to that of this case. The case in Term was as follows : A policy was executed by the defendants, in which it was stated that the plaintiff had agreed to pay them £1 10s. on the 10th June, 1789, and the like sum every six months during the continuance of the policy, for insur- ance of goods by loss from fire. It was further stated that, from the date of the policy, and as long as the plaintiff should pay the sum of j£7 10s. at the time and places designated, and the defend- ants should agree to accept the same, their funds should be liable to pay the damage which the plaintiff might suffer by fire, " ac- cording to the exact tenor of their printed proposals, dated January 1st, 1777." In those printed proposals was the following article : " On bespeaking policies, all persons are to deposit 9s. 6c?. for the pohcy, stamp duty, and mark, and shall pay the premium to the next quarter day, and from thence for one year more, at least, and shall, as long as the managers agree to accept the same, make all future payments, annually, at the said office, within fifteen days after the day limited by their respective policies, upon forfeiture of the benefit thereof, and no insurance is to take place until the premium be actually paid by the assured, his, her, or their agent or agents." It was averred in the declaration that the pol- icy stipulating for semi-annual payments of the premium came under the article above quoted, although that speaks of annua! payments. It then stated the plaintiff's loss by fire, after the making of the policy, and whilst it remained in full force, to wit : on 11th December, 1789, and before the expiration of fifteen days after the day limited in the policy, and before any refusal by the JULY, 1860. 91 Mutual Benefit Life Insurance Company v. Euse. company to accept the £1 10s. every six months, according to the effect of the policy. The declaration further charged that it was the triie intent and meaning of the policy that the plaintiff should be insured against losses happening within fifteen days after the day of payment designated in the policy, if plaintiff tendered it within that time, unless before the loss the company had refused to renew the policy ; that all the premiums had been paid, except the last, at the day, and that was tendered before the expiration of fifteen days from the day of payment designated in the policy. One of the pleas was, that the premium of £7 10s. was not ten- dered until after the 10th December, 1789, the day of payment named in the policy, which was demurred to, and thus the point was made as to the effect of the article extending the day of pay- ment fifteen days. Lord Kenyon, Ch. J., said, " It was admitted in the argument that the insurance, when made, did not extend to half a year and ■fifteen days^ and that completely puts an end to the case. By the agreement under which the plaintiffs were insured, they stipulated that they would pay half-yearly, namely, on 10th June and 10th December, the sum of £7 10s., and that they would, so long as the managers would agree to accept the same, make their payments within fifteen days after the time limited. If, therefore, when the first premium was paid the insurance did not extend to fifteen days beyond the half year, the continuation or prolongation of the term depends on two circumstances, which must both concur, that the insured should pay the sum of £1 10s. and that the insurers should agree to accept it. Here, after the policy had had its ef- fect, and before the expiration of the fifteen days, during which time the insured might have proposed to continue the policy, and to which the trustees might or might not have acceded, the loss happened. Barely stating these facts is sufficient to show that the plaintiffs are not entitled to recover. They insist, that though the time of insurance was expired, and that though no new insurance had been made, they are protected by the policy, by reason of the indulgence of fifteen days, (just what the plaintiff in this case in- sists upon,) but that argument cannot be supported. (And in the next-sentence his Lordship gives the true origin and object of this allowance in England.) The allowance of fifteen days was given for the purpose of saving the expense of a new policy and a new stamp. In this case the loss unfortunately happened h> 92 SUPREME COURT OF GEORGIA. Mutual Benefit Life lusarance Company v. Ruse. that interval of time when it was in suspense whether or not the policy would be renewed, for at that moment the plaintiffs had not offered to pay, and of course the trustees had not accepted the premium for the next half year. I am therefore clearly of the opinion that the defendants are not liable." In this case is adjudged the object of the fifteen day article ; it is a convenient way of renewing the policy without taking out a new one and paying stamp dutfes. In this case it is adjudged that the article does not extend the policy beyond the time of pay- ing the premium agreed upon in it. That settles this cause. Again, Lord Kenyon's judgment settles another point conclu- sive of this case ; it is this, that the privilege to the insured granted by the article, be that what it may, does not extend be- yond the time when the loss occurs. In that case the right is re- served to the company, in the article, to refuse to extend th« policy upon the premium being offered. That right is not reserved in this case. But mark. Lord Kenyon denies to the insured the right to tender it, under the article, after the loss has occurred. The absurdity of requiring, under any arrangement, a company to insure against fire goods already burned, or the life of a man al- ready dead, will readily strike the commonest mind. In the case decided by Lord Kenyon, the article was referred to in the policy, and, as he held, and as all the authorities hold, became thereby a part of the contract. He, considering it as a part of the policy, denies to it the effect of extending the policy beyond the time agreed upon in it for the payment of the premium ; and although the article is part of the contract, yet he denies to the insured the right, under it, of claiming the insurance by a tender of the premium within the fifteen days, and after the loss had happened. In this case there is no reference to the printed article relied upon in the policy ; it is no part of the policy, therefore. With how much greater force, then, do the principles ruled by Lord Kenyon apply to this case. If the defendants could be made liable at all upon the facts of this case, it strikes me that it could rest alone upon the idea that the tender of the premium within the thirty days is a new contract. This article contains no provision which allows the company to reject the tender, if made within time, and thus prevent a new contract upon the terms of the old policy. And if a tender of the premium had been made in this case, be- yond the day of payment named in the policy, and before the ex- JULY, 1850. 93 ■ Mutual Benefit Life Insurance Company v. Kuse. piration of the thirty days, the insured being in life, I should in- cline to the opinion that they would have been bound by it ; but if made within the thirty days, the insured being dead, and the fact of his death known to the parties, there would be in that event no contract, no consideration for the insurance, no mu- tuality. It would be an act of mere fatuity, out of which no lia- bility could spring. And if the fact of the death of the insured is known to the insurer,^ and its knowledge withheld from the in- surers,^ and they accept the premium, the contract would be void for fraud. If known to neither party, it would equally be a void contract. There can be no valid contract for the insurance of the life of a dead man. See, in accordance with the decision in 5 T. R., S. 0.1B.& P. 471 ; Anstruther, 707 ; 1 Phil. Ins. 30-34 ; Douglas, 12 note 4. The case of Salvin v. James, 6 East, 571, relied ujion by the plaintiff, does not sustain him. It refers to and sustains the doc- trine settled in Tarleton et al. v. Staniforih et al. The policy in the two cases was alike — in both, a reference to printed articles — in both, the same article as to extension of time ; a loss after the time stipulated for paying the premium ; a tender, etc. In the former case, in addition to all this, there was proven an advertise- ment of the insuring office, distinctly avowing that they do now, and always have considered insurances in their office as continuing for fifteen days after the time limited for payment in the policy. The questions in the case grew out of this advertisement ; and Lord Ellenborough held, that, in consequence of the advertise- ment, the policies of this office extended to the expiration of the fifteen days, and during the whole of that time the plaintiff was protected. The case turned upon the advertisement. There was judgment for the defendant because the plaintiff had notified the company that he would not give the increased premium demanded for another year, and thus determined the contract. I do not find any authority in conflict with Tarleton et al. v. Staniforth et al. I consider the case clear upon authority. Upon the policy and the article, we are clear that the defend- ants are not liable to the plaintiff, and that the jury ought to have been so instructed. Let the judgment he reversed, and a new trial he awarded. 1 The plaintiff. 2 The office. 94 SUPREME COURT OF GEORGIA. Mutual Benefit Life Insurance Company v. Euse. Note. — The case of Tarleton v. Staniforth, 5 Term, 695, (1794,) went to the court of exchequer chamber on writ of error, where the judgment of the king's bench was aflBrmed. 1 Bos. & Pul. 471. Anstruther, 707. In Want v. Blunt, 12 East, 183, (1810,) the insured entered into a contract of life insurance for a certain annuity to his widow after his death, in consider- ation of a quarterly premium to be paid to the society during his life. The so- ciety covenanted that if he should pay the premiums on the quarter days during his life, and his proportion, during life, of the contributions which might be assessed upon the members, then the society engaged to pay the annuity to his widow. By the rules of the company, if any member neglected to pay his quar- terly premium for fifteen days after it became due, the policy was declared to be void, unless the member, continuing in as good health as when the policy expired, should pay up within six months, and five shillings per month extra. Held, that the insured ha,ving died leaving a quarterly payment over-due at his death, the policy expired ; and that a tender by his executor, though made within fifteen days after the payment became due, did not satisfy the requisi- tion of the policy, and the rules of the society requiring payment to be made by the assured in Tiii lifetime, continuing in as good health as when the policy ex- pired. Held, also, that the rules pertaining to real estates did not apply, and that a cy pres performance was not sufficient. In Acey v. Fernie, 7 Mees. & Wels. 151, (1840,) the premium on the life policy of the assured became due on the 1 5th of March but was not paid till the 1 2th of AprU, when the sub-agent of the company, through whom the insurance had been effected, gave a receipt for the amount of the premium. The instructions given by the company to the agent required that the premiums should be re- ceived within fifteen days from the time when they became due ; and if not paid within that time the agent was to give immediate notice of the fact to the com- pany. In case he did not do so he was to be debited with the amount after the expiration of the fifteen days, and held responsible for the same. No notice was given by the agent of the' non-payment of the premium within the fifteen days, and the agent was debited with the amount. The court held, that the debiting the agent was not evidence of a new contract by which the agent's responsibility was substituted for that of the insured, as the agent had no au- thority to contract for the company on the terms of the old contract but varying the time of payment ; and that the debit on the books against the agent was to be considered as a penalty against bitn and not as a payment of the premium by the assured. Pritchard v. The Merchants', ^c. Mut. Life Assurance Society, 3 Common Bench, N. S. (91 B. C. L.) 622, (1858,) was an action upon a life policy con- ditioned to be void if the premiums were not paid within thirty days after they became due ; but the policy might be revived within three months on satisfac- tory proof of the health of the insured. Premium came due October 13th, 1855. The thirty days expired November 12th, on which day the insured died, the premium not having been paid. On the 14th of November a check was given by the plaintifi" to the company for the amount due for which they re- ceived the cash, giving a receipt for " the premium for the reward of the policy to October 13th, 1856, inclusive," both parties being ignorant of the death of the insured. Held, that this payment did not revive the policy. JULY, 1850. 95 Mutual Benefit Life Insurance Company v. Buse. Simpson v.. The Accidental Death Ins. Co. 2 Common Bench, N.' S. (89 E. C. L.) 257, (1857,) was an insurance against death or injury from accident. The premium was payable January 22d in each year, commencing in 1851. The policy was conditioned that the premium was to be paid within twenty-one days from the day it became due, and if so paid should not be void, notwithstanding the happening within that time of the event insured against. But if the pre- mium was not paid within the twenty-one days then the policy was to be void. It was also provided that whenever a new premium should become payable the directors were at liberty to refuse to receive the payment and thus terminate the risk. The premiums were duly paid down to the year 1855. On the 27th of January, 1856, an accident happened to the assured, from which he died on the 1st of February following. On the 4th of February the company received notice of his death, and a correspondence took place between their secretary and the attorney for the executors of the assured, respecting the cause of the death and the insurance, neither party at first knowing that the premium which became due January 22d, 1856, had not been paid. On the 8th of February the secretary of the company first became aware of this fact, but did not com- municate it to the executors or their attorney until the 13th, the day after the expiration of the twenty-one days, when he informed the latter that the direct- ors had rejected the claim. It was held, upon these facts, first, that there was nothing in the condition of the policy to enable the executors to pay the pre- mium, and that if they had tendered it within the twenty-one days the company would not have been bound to accept it ; secondly, that the policy was void by reason of the non-payment of the premium within the terms of the conditions, and that the company were not estopped from denying the payment ; thirdly, that neither the plaintiff's, (the executors,) nor the assured, had he been living, would have had an absolute right to keep the policy alive by payment or tender within the twenty-one days, as the 4th condition gave the directors the liberty to reftise to continue the risk. See, also. Phoenix Life Assurance Society v. Sheridan, 8 H. L. Cas. 745 ; (S. C. 31 L. J. Q. B. 91 ; 7 Jur. N. S. 174 ; 3 L. T. N. S. 564 ;) Ruse v. Mut. Benefit Life Ins. Co. post, 467; Blanchard v. Atlantic Ins. Co. 33 N. Hamp. 6 ; (fire insurance ;) BucKbee v. United States Ins. Co. post, 406 ; Hammond v. American Mut. Life Ins. Co. post, 181; Campbell v. International, Sfc, Assurance Society, post, 522; Robert V. New England Mut. Life Ins. Co. post, 634; Pitt v. Berk- shire Life Ins. Co. post, 284. , As to waiver of forfeiture for non-payment of premium, see Bouton v. Ameri- can Mut. Life Ins. Co. ante, 51, and cases cited. Admissibility of the prospectus, Ruse v. Mut. Benefit Life Ins. Co, post, 467, and note. ILLINOIS. Marion Pomeeot vs. The Manhattan Life Insuraijce Com- pany. (40 111. 398. Supreme Court, April, 1866.) Law of place. — Application for life insurance was made in Chicago to a company located in New Yorl:; Tlie application was forwarded to the home office in New Yorlc, and a policy returned, containing a condition that it should not he binding until countersigned by M. of Chicago, and the advance premium paid. This condition was complied with in Chicago. Beld, that the contract was executed in Illinois. Assignment of life policy. — While a life policy cannot be assigned at common law, or under the Illinois statute, so as to pass the legal title to the Instrument or money, still an as- signment of such policy will be protected and enforced in equity; and this too, though it be of but part of the insurance money. Separate property of marri^ woman. — P., a married woman, assigned to H. $600 of her policy of $5,000, to secure a debt of her husband. Held, that being her separate property, she could pledge the policy, or part of it, as security for her husband's debt, and the as- signment was valid in equity ; and this independently of the statute. Bill of interpleader by the Manhd,ttan Life Insurance Company, a corporation located in New York, which had insured the life of Samuel B. Pomeroy, in 1857, in the sum of $5,000, for the benefit of his wife, Marion Pomeroy. The case arose upon the following assignment : " In consideration of one dollar to me in hand paid by Samuel Howe, the receipt whereof is hereby acknowledged, I, Mrs. Marion Pomeroy, wife of Samuel B. Pomeroy, do hereby sell, assign, trans- fer, and set over unto the said Samuel Howe, six hundred dollars of the amount of the policy of insurance on the life of Samuel B. Pomeroy, issued by the Manhattan Life Insurance Company, and numbered 4,312. Dated Sycamore, September 1st, 1862." In 1864 Mr. Pomeroy died, and the company applied, soon after, to his widow to allow the sum of $600 of the insurance money to be paid to Howe, but she refused and claimed the whole amount ; whereupon the company filed a bill of interpleader to determine the rights of the parties. The court below decreed in favor of Howe, respecting the $600 ; from this decree Mrs. Pomeroy appeals. The rest of the case is stated in the opinion of the court. Surd, Booth ^ Kreamer, for the appellant. George Grardner, for the appellee. APRIL, 1866. 9T Pomeroy v. Manhattan Life Insurance Company. Walkek, C. J. It is insisted that this policy of insurance could not be assigned under the laws of New York. Also that the con- tract was entered into in that state, and notwithstanding the litiga- tion is in the courts of this state the laws of that state must govern the rights of the parties to the policy. To ascertain whether the laws of New York must govern the question of the right to assign the policy, it will be proper first to determine whether the policy was made in New York. The evidence shows that the applicant, the person whose life was insured, and the agent of the company to whom the application was made, all resided in Chicago. The application was also made in that city, and was forwarded to New York by the secretary of the company. On this application a policy was returned containing a provision that it should not be binding until it should be countersigned by T. L.' Miller of Chicago, and the advance premium should be paid. It appears that Miller countersigned the policy, and the advance premium was paid and the policy was delivered to the assured in Chicago. The instrument sent from New York by the company was in- complete, as it was not fully executed, and declared on its face that it was void until it should be countersigned and the premium should be paid. How an instrument which declares that it is void until other acts are performed can be regarded as complete and binding, we are unable to comprehend. Had nothing further been done after it came from New York, could there have been the slightest pretence that it could operate as a binding contract ? We think no one would have so contended. It was an inchoate, imperfect in- strument, lacking essential and material acts to complete its bind- ing force as a contract. And it will be observed that the final acts were to be, and were performed in this state. And when they were performed, the instrument then for the first time became a binding instrument. It then in fact, and in contemplation of law, was executed in this state. It was also to be performed in this state. It must therefore be governed by our laws and not those of New York. While this is not such an instrument as can be assigned at the common law, or under our statutes, so as to pass the legal title to the instrument or the money, and while an assignment of a part of the money due on any instrument does not transfer the legal title, it is such an equitable assignment as will be protected and enforced in equity. The assignment of a portion of the money specified in 98 SUPREME COURT OF ILLINOIS. Pomeroy v. Manhattan Life Insurance Company. this instrument was valid in equity, if a married woman has the power to assign and transfer her sole and separate property and choses in action. This case mainly depends upon this question, as the fact that appellant executed the assignment is not seriously questioned. The policy declares in terms that it is assignable. It provides for the payment of the money to the assured or to her assigns. So far, then, from such an instrument being prohibited, it is author- ized by the terms of the policy. Nor can it be doubted that it was the sole and separate property of Mrs. Pomeroy. And under the law she would have the power to pledge it as a security for the debt of her husband. Unless restrained by the deed or a marriage settlement under which a married woman holds her separate prop- erty, she may pledge or dispose of it in equity independent of the statute. 2 Story Eq. §§ 1389, 1390, 1398, and 1394, and au- thorities there cited. This property being the sole and separate property of the wife, she is bound in equity by this assignment. Again, the act of the general assembly of the 21st of February, 1861, (Sess. Law, 143,) declares that all of the property, both real and personal, belonging to any married woman, as her sole and separate property, or which she owns at the time of her marriage, or which she may acquire during her coverture, in good faith from any person but her husband, notwithstanding her marriage, shall be and remain her separate property, under her sole control, and be held, owned, possessed, and enjoyed by her as though she was sole and unmarried, free from the interference or control of her husband. The application for this policy was in the name of Mrs. Pomeroy, and it was issued to her, and it is not denied that it was her sole: and separate property ; and if so, under this act it was at her disposal and under her control, and no reason is perceived why her assignment to appellee was not binding in equity, and if so she cannot repudiate her act. Under the statute she is entitled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers. If it gives the rights of sole ownership it must impose the liabilities incident to such a right. After a careful examination of all the evidence in the case, we are unable to say that other securities were specifically pledged by the husband in his lifetime for the payment of the debt, to secure the payment of which this assignment was made Nor does it ap- SEPTEMBER, 1868. 99 Provident Life Insurance Company of Chicago v. Fennell. pear that the debt was paid. Defendant Howe testifies that it was not, but remained due and owing at the trial. He also swears that the other securities were pledged for the payment of indebtedness of Pomeroy to witness and his partner ; and that this was his indi- vidual debt, and was secured by no other pledge. Nor is this evi- dence contradicted or overcome by other testimony in the case. In this entire record we perceive no error requiring the reversal of the decree of the court below, and it is affirmed. Decree affirmed. Note. — In a case at law, it is held that where the assignor of a partial as- signment retained the policy, and the insurance was paid to the administrator of the insured, the assignee could not recover the whole sum assigned. Palmer V. Merrill, post, 166. Upon the subject of assignment, see Eadie v. Slimmon, post, 666, and cases cited. As to law of place, St. John v. American Mut. Life Ins. Co. post, 359 ; Wright v.- Sun Mut. Ins. Co. 6 L. Reg. 485. The Peottdent Life Insurance Compant of Chicago vs. Makt Fennell. (49 HI. 180. Supreme Court, September, 1868.) Accident policy. Occupation. Evidence. — In an action upon a policy which insured against accidents generally, and provided expressly in what particular cases the company were not to be liable, but did not provide that they would not be liable for death occurring from a cause not connected with the occupation of the assured, or that he should not change his occupation, held, that the application of the assured was inadmissible to show his occupation at the time of effecting the insurance, so as to prove that he was otherwise employed when he met his death ; such evidence being immaterial. AcJcnowledgment of receipt of premium in a policy of life insurance cannot be controverted. The case is stated in the opinion of the court. Gr. S. Harding, for the appellant. Hervey, Anthony ^ Gfalt, for the appellee. Lawbence, J. This was a suit brought by Mary Fennell against the Provident Life Insurance Company, upon a policy issued upon the life of her deceased husband. The plaintiff had a verdict and judgment, and the defendant appealed. It is now urged for appellant, that the court erred in not per- mitting the defendant to give in evidence the application of deceased for the insurance, showing that his occupation at the time of the insurance was that of a switchman on a railway, and to prove in connection with this evidence, that he was killed while performing 100 SUPREME COURT OF ILLINOIS. Provident Life Insurance Company of Chicago v. Fennell. the duties of a brakeman. The insurance was against death by accident. The evidence offered, if admitted, would have been im- material. The representation was merely that the occupation of the deceased was then that of a switchman, the truth of which is not denied, and did not amount to a covenant that he would do no act not connected with such occupation, or that he would not engage in any different occupation. N. E. M. ^ F. Ins. Go. v. Whitmore, 32 111. 223. The policy was not against accidents occurring in the course of his occupation, but against accidents generally, and pro- vided expressly in what particular cases the company was not to be liable, but did not provide that it would not be liable for death oc- curring from a cause not connected with the occupation of the assured, or that he should not change his occupation. If the com- pany had desired to protect itself from all liability, except for acci- dents occurring in a particular occupation, it should have so ex- pressly stipulated. That it did not understand its own policy as only covering so narrow a ground, is evident from the fact that it did expressly guard itself against liability for death or injury in- curred through war, riot, or invasion, or while the assured was in a state of intoxication, or from riding races, duelling, or fighting. It is also objected that the court did not permit the company to prove the premium had not been fully paid. The policy acknowl- edged the receipt of payment, and we have decided in a case not yet reported, that -this statement of a policy could not be contro- verted. Judgment affirmed. Note. — The case referred to in the concluding portion of the opinion above has not appeared at the date of going to press with this work. The doctrine is very questionable. The contrary is stated in Pitt v. Berkshire Ins. Co., post, 284, 288. But see Baker v. Union Life Ins. Co. 595. INDIANA. The Kentucky Mutual Insurance Company vs. Jenks. (5 Ind. 96. Supreme Court, May, 1854.) Cmtract, when complete. — A made an application for an insurance upon liis life, for the ben- efit of his "wifejOn the 27th of September, proposing to pay the first year's premium in ad- vertising. The application was approved and a policy issued on the 2d of October, which was sent to the agent of the insurers and received by him on the 5th of October. On the 29th of September, two days after the application was made, the insured was taken sick and died the day before the agent received the policy. The agent immediately re- turned the policy to the company. Held^ that the contract was complete on the 2d of October. Premium to be paid in him: — Where a policy of life insurance was issued stipulating that the first year's premium was to be paid in advertising in the newspaper published by the insured, and the advertising matter was furnished by the company and duly advertised, held, that it was incumbent upon the company to furnish sufficient amount to meet the premium, and tbe insured was not responsible for, and the insurance not vitiated by, a de- ficiency in advertising matter. Held, also, that in the absence of any notice from the company to' the insured that the policj' would not take eff'ect until the termination of the time of advertising, it took effect from its date. The case is stated in the opinion of the court. S. W. Chase, Z. Baird ^ J. M. Reynolds, for the appellants. R. C. Gregory ^ R. Jones, for the appellee. Stuart, J. Emeline Jenks filed her bill in chancery against the company to enforce an insurance contract ; praying discovery of the entries on the insurance company's books, &c. ; that the original application for such insurance and the original policy issued thereon be produced and filed ; that an account be taken, &c. ; with general prayer for such other relief as the case made might require. The contract sought to be enforced was an insurance for $1,500 on the life of James P. Jenks, the husband of complainant, and for her benefit, alleged to have been effected with the appellant. The cause came to hearing on the bill, answer, exhibits, &c. Decree in accordance with the prayer of the bill. The insurance company appeals. A printed copy of the record and proceedings in the cause, to- gether with several elaborate briefs, all printed, have greatly facili- tated our labors. 102 SUPREME COURT OF INDIANA. Kentucky Mutual Insurance Company v. Jenks. The principal facts, without reference to the order in which they occur in the pleadings and evidence, are briefly these : In August, 1850, Jenks applied to the company's agent at La- fayette to insure 11,000 on his life for five years for the benefit of his wife. He proposed that the first year's premium should be paid in advertising their agency in Jenks' paper, the " Lafayette Courier." Wilstach, the agent, not feeling at liberty to act on such a proposition, referred it directly to the company, strongly recommending its acceptance. On the 12th of August, 1850, the insurance company replied that " the board had concluded to issue a policy to Mr. Jenks on the terms proposed, (first year's pre- mium to be taken in advertising,) and that the agent could for- ward the application as soon as ready." About the middle of August, 1850, Wilstach accordingly handed Jenks for publication an advertisement of the insurance company. It was published continuously in the " Courier" six months. It is not disputed but that this advertisement was to go as pay- ment on the premium of the first year ; nor but that the publication was of the value of f 12. Wilstach testifies that the $1,000 was at first mentioned only generally ; but that on subsequently looking over the insurance company's tables they (Jenks and Wilstach) found that the pre- mium on f 1,500 would about amount in his case to the value of the printing. The application for insurance on $1,500 was therefore pre- pared, and signed by Jenks. It was not, however, complete ; as to one of the questions there was a blank which he was not then ready to answer without further inquiry. Thus the matter stood till the 27th of September, 1850, Wilstach frequently urging Jenks to fill the blank and complete the application, that he, Wilstach, might have it off his hands. On that day the papers were fully made out, and Wilstach mailed them to the insurance company. Jenks was then in good health. It does not very clearly appear when this communication was received by the insurance company ; but the company's books show that Jenks' application was duly approved, and that the policy was issued thereon October 2, 1850. The substance of the pohcy was, insuring " the life of James P. Jenks in the sum of one thousand five hundred dollars," for the term of five years from the 2d day of October, 1850, until the MAY, 1854. 103 Kentucky Mutual Insurance Company v. Jenks. 2d. day of October, 1855, at 12 o'clock, noon, &c., for the benefit of Emeline Jenks. On the same day, October 2d, 1850, the insur- ance company mailed the policy, duly executed, to Wilstach, their agent. It was received by him on the 5th of October, 1850. Meanwhile, on the 29th of September, 1850, Jenks was taken sick, and lingering until the 4th of October following, died. Upon the receipt of the policy by the agent after the death of Jenks, it was immediately returned by mail to the insurance company. On this state of facts the insurance company insists that the con- tract to insure was not complete. And though the argument takes an unnecessarily wide range, this is in fact the only material ques- tion in the case. For if the contract was complete — if the minds of the contracting parties met upon a distinct proposition made by the one and accepted by the other — chancery will decree its exe- cution. Or regarding that as done which in equity and good con- science should have been done, chancery will take an account and make such decree as is just and proper from the case made in the bill. Jenks' application was forwarded, it seems, September 27, 1850. That was a proposition to the company to insure his life to the amount of f 1,500 for five years ; the first year's premium to be paid in advertising. It is to be inferred from the course of the mail, as disclosed in the other parts of the case, that the application reached the company on the 1st of October, 1850. Its approval and acceptance on that or the next day, as shown by the books of the company, closed the contract. It is true there is considerable conflict among the authorities on this point ; some holding that the contract thus made by mail is not complete until the party making the proposition is advised of its acceptance. Thus Parker, C. J., held that the contract was open till the knowledge of its acceptance, that is, the letter an- nouncing its acceptance, was received, or the regular time for its arrival by mail had elapsed. McCuUoch v. The Uagle Insurance Company, 1 Pick. 278. There are also several later cases in the Massachusetts Reports to the same effect. Walworth, Chancellor, lays down the doctrine quite as broadly, namely, " The minds of the contracting parties must not only meet, but the fact of such con- currence must be communicated to each other in order to consum- mate the contract." Frith v. Lawrence, 1 Paige, 434. But tlio English cases on the authority of which these decisions were made, 104 SUPREME COURT OF INDIANA. Kentucky Mutual Insurance Company v. Jenks. namely, Pai/ne v. Cave, 3 T. R. 148, and Cook v. Ozlei/, Ibid. 653, have been frequently questioned, and may be regarded as over- ruled. 2 Kent, 477.* 1 Duer, 118 note. 16 East, 45. Even the supreme court of Massachusetts, in the subsequent case of Thayer v. The Middlesex Insurance Company, is generally conceded to have very materially modified the doctrine laid down in 1 Pick. supra. 10 Pick. 332. The case of Frith v. Lawrenoe, supra, came before the court of errors in New York, under the title of Maotier^s administrators v. Frith ; and the decision of the chancellor on this point was re- versed. 6 Wend. 103. In accordance with the case of Adams v. lAndsell, 1 Barn. & Aid. 681, Mr. Justice Marcy, delivering the principal opinion given, held that the contract was perfected when the proposition made by letter was accepted, even though the letter of acceptance could not have reached the residence of the other party till after Jiis death. A similar doctrine has been long since held in the circuit court of the United States. Kohne v. The Insurance Company of North America, 1 Wash. 93. A pro- posal transmitted by letter is regarded as a continuous offer up to the time of answer sent ; and then the acceptance thus given com- pletes the contract. Adams v. Lindsell, supra. The better opin- ion of jurists, says Kent, is, that as soon as an offer by letter is accepted, the consent is given and the contract complete, though the party making the offer may be ignorant of such acceptance. 2 Kent, 477 and note.i In a case not referred to by counsel {Tayloe v. The Merchants^ Insurance Company) the same question came before the supreme court of the United States. Nelson, J., delivering the opinion of the court says : " On the acceptance of the terms proposed, trans- mitted by the course of mail, the minds of both parties have met, in the mode contemplated when they entered upon the negotiation, and the contract is complete. In all cases," he continues, " of con- tracts entered into by correspondence, it is impossible that both parties should have a knowledge of it the moment of its comple- tion." 9 How. 390. There is weighty authority, too, that the acceptance will relate back to the time of the offer made. Lord Eldon, as quoted in Chitty on Contracts, 14 note. Regarded in this light, the contract for issuing the policy was complete on the 27th of September, 1850. ' 2 Kent, 629, and notes, 11th ed. MAY, 1854. 106 Kentucky Mutual Insurance Company v. Jenks. And upon the authority of the other cases cited, it was complete on the acceptance of Jenks' proposition, by the insurance company on the 1st, or, at furthest, on the 2d of October, 1850. Much is said in argument about the payment of the premium, and the indorsement of such payment on the policy, as essential to the completion of the contract. In some cases, as where it was doubtful whether the contract was complete or not, such objection might be entitled to consideration. But not in«uch a case as this. Here the contract was complete. It was a contract, too, not ac- cording to the course of the company's business. Its very terms dispensed with the ordinary course of payment. It must, there- fore, be determined on its own facts and circumstances. The first year's premium, ordinarily payable in money, was to be paid in printing. The payment was, therefore, a labor to be continued through a series of months. In accepting Jenks' proposition, the board was particular to specify that the first year's premium was to be in advertising. The proposition was accepted, and the policy issued with reference to that mode of payment. By the very nature of the contract, it devolved on the insurance company to furnish the matter to be advertised. They did so in part, and directed the period during which the publication should be con- tinued. If the matter published did not amount to the first year's premium within 45 cents, it was not the fault of Jenks. They should have furnished more matter, or continued that published longer. The neglect of the insurance company to do either did not affect the rights of the assured. Advertising being the stipu- lated mode of payment, the insurance company had no right to demand anything else. Accordingly, if the advertising were done upon the faith of the contract, within proper time, and in the only manner in which such payment could be made, that is all that could be required. The terms upon which the policy issued, or was to issue, were substantially complied with. So that the facts of the case growing out of the contract, pecul- iar as it was in its terms as to payment, rendered the usual mode of transacting the business, and of course the reasoning to be deduced therefi-om, wholly inapplicable. Nor is it conceived that more than a substantial compliance with the stipulations usually found in such contracts is ever, in any case, essential to the validity of the contract. Douglas, 11. 9 How. 390, supra. It is still insisted that at least before the policy attached, the 106 SUPREME COURT OF INDIANA. Kentucky Mutual Insurance Company «. Jenks. premium must be paid ; and that even if the contract was made and the policy issued, yet it did not attach ; for at the time of Jenks' death the premium had not been paid, and could not be paid until the February following, when the six months' advertising was completed. If it was the understanding of the parties that the policy should not attach till the advertising was done, the ob- jection would undoubtedly be well taken. It was clearly in the power of the parties so to mould their contract that the risk of the company should, as to its commencement, be thus deferred. But unfortunately for this position, the history of the case dem- onstrates a contrary intent. On the 12th of August, 1850, the insurance company directed their agent to forward Jenks' applica- tion on the terms proposed, as soon as ready. The first publica- tion in payment of the premium, was made about the middle of August, 1850. Had the insurance company understood the con- tract as they now pretend it was, they would have told Mr. Jenks that about the middle of the following February, 1851, namely, when the six months' publication was finished, his policy should issue, running five years from that time. But instead of that, however, the agent, says that during six weeks in August and September, he repeatedly urged Jenks to complete his application ; that he wanted it ofi" his hands, &c. The insurance company seem equally anxious to have the risk\ commence, for fear perhaps that Jenks might change his mind and demand payment for the advertise- ment. Accordingly, the papers containing Jenks' proposition, for- warded September 27, 1850, and which must in due course of mail have been received October 1, 1850, were promptly acted upon. The proposal seems to have been accepted the day it was received, the policy filled up, and the risk made to commence on the 2d of October, 1850. This state of facts, as between private citizens, would not re- quire a word of comment, and could not insure a moment's hesita- tion. The insurance company voluntarily commenced their risk more than four months before the payment of the premium in the mode agreed upon could possibly be completed. It does not lie with the company now to say that the risk had not commenced at the death of Jenks. Whether it be regarded as an executed con- tract which should entitle the complainant to the deliverv of the policy, or an executory contract entitling her to have a policy is- sued, and the damages assessed, the position of the company is MAY, 1854. 107 Kentucky Mutual Insurance Company v. Jenks. equally untenable. In another view of the case, the insurance company would be the first to question such a doctrine. Had Jenks died on the 4th of October, 1855, it is apprehended the com- pany would have promptly pointed out this flaw to the complain- ant, namely, that though the payment of the first year's premium was not made till the middle of February, 1851, yet, by the ac- ceptance of the terms proposed, and by the terms of the policy is- sued, their risk commenced October 2, 1850, and terminated Octo- ber 2, 1855, at 12 o'clock, noon, precisely. It is not good policy in the courts to favor such cunningly de- vised insurance policies, as that whatever event happens, the un- derwriters may reap the premium and escape the risk. On the contrary, some degree of acuteness should be called in to uphold and enforce such agreements, whenever there has been a fair con- tract and a substantial compliance. Insurance companies are not favorites of the law. 1 Duer, 118. In Mactier v. Frith, supra, it is justly observed, that a refinement which would distinguish between a contract for insurance and one for the sale of goods, would, in its application, involve the courts in distressing embar- rassments ; and distinctions which are not founded in the nature of things are not to be indulsed. ^ It is suggested in argument that a specific performance of the contract in this case is rendered impossible by the death of Jenks. -But in the light of the adjudicated cases, we apprehend no diffi- culty. Jenks having been entitled to a policy in his lifetime, a court of equity will consider that done which should have been done. And the case being properly a subject of chancery juris- diction will be retained for the purpose of doing complete equity between the parties. Upon a bill to decree a specific execution of a contract to insure, the court may decree a satisfaction. Perkins V. The Washington Insurance Company, 4 Conn. 646. 1 Duer, 66. Here there is a special and general prayer, removing even any technical barrier to such relief. Per Curiam. The decree is affirmed, with 3 per cent, damages and costs. Note. — In Angell on Fire and Life Insurance, § 343, it is said that " when- ever it is a condition of a life policy, that the assurance shall not commence before the premium is actually paid ; this is waived by the issuing of a policy by the insurer before payment." No authority is cited, though the correctness of the statement can scarcely be doubted. See Bouton v. Amer. Life Ins. Co. 51. As to consummalion of contract, see Sheldon v. Connecticut Mutual Life Ins. C&i, ante, 27, and cases cited. 108 SUPREME COURT OF INDIANA. Provident Life Insurance and Investment Company «. Baum. Thb Provident Life Insurance and Investment Com- pany vs. Baum. (29 Ind. 236. Supreme Court, November, 1867.) Accident insurance. Insurable interest. — A effected an insurance upon his life against in- jury and death from accident, payable in case of death from accident to B. A died from a gunshot wound within the time for which he was insured. In an action upon the pol- icy by B, held, that he need not prove an insurable interest in the life of A. Reasonable notice. — In an action upon a life policy which required notice of death to be given to the company or their agent " as soon thereafter as possible," it was proved that the insured died at a place from which iiotice of the death could be sent to the company in one day. It was further proved that the policy was in the trunk of A in the city where the company's office was located, and that the party to whom the insurance money was to be paid never had possession of and never saw the policy until eight or ten days after the death of the insured, when he immediately notified the company of the death. The company then handed him a blank affidavit in regard to the death, and stated that it would be sufficient if he returned the same within three or four weeks, which he did. Held, that the company received notice within reasonable time. The case is stated in the opinion of the court. J. B. ^ W. Niles, for appellant. T. J. Merrifield & W. S. Calkins, for appellee. Ray, J. The appellee, Napoleon Baum, sued the appellant in the court below, on an accident insurance policy, issued by the appellant on the life of one Americus Baum. The poHcy, as set forth in the complaint, states : " In consideration of eighteen dollars, the receipt of which is here- by acknowledged, the Provident Life Insurance and Investment Company do hereby insure Americus Baum against loss of life in the sum of $3,000, to be paid to Napoleon Baum, or his legal represent- atives, within ninety days after sufficient proof that the assured, at any time after the date hereof, and before the expiration of this pol- icy, shall have sustained personal injury caused by any accident, within the meaning of this policy, and the conditions hereunto an- nexed, and such injuries shall occasion death within ninety days of the happening thereof; sufficient proof being furnished to this company. " Against personal injury, in the sum of fifteen dollars per week, for a period not exceeding altogether twenty-six weeks for any sin- gle accident within the meaning of this policy, and the conditions hereunto annexed, by which the assured shall sustain any personal injury which shall not be fatal, but which shal' absolutely and NOVEMBER, 1867. 109 Provident Life Insurance and Investment Company ». Baum. totally disable him from the prosecution of his usual employment ; satisfactory proof being furnished to this company." Then it is provided in one of the subsequent clauses as follows : " All sums which may, from time to time, be paid by way of compensation to the said assured, by virtue of this policy, shall be accounted in diminution of the sum hereby insured, and be in- dorsed on this policy, so that in case of subsequent injury, whether fatal or otherwise, during the continuance of this policy, the total amount to be paid by said company shall not, in any case, exceed the principal sum hereby insured." The policy was declared to be for one year, and there was added also, this clause : • " In the event of injury, within the meaning of this policy, oc- curring to the assured, he, or in case of his death, his legal repre- sentatives, shall, as soon thereafter as possible, give notice to the company, at their office in .Chicago, or to the agent writing this policy, together with the full name, occupation, and address of the assured, with full particulars of the accident or injury." The complaint consisted of four paragraphs, to each of which a demurrer was overruled. The death of Americus Baum was al- leged to have resulted from a gunshot wound. The interest of the plaintiff in the life of the assured was stated in a somewhat different form in each paragraph. In the first paragraph, such interest is set forth as follows : " That the said assured was the brother of the plaintiff, and, by the persrlasion and advice of the defendant, the assured caused said policy to be made payable to the plaintiff." In the second paragraph, as follows : " That the said assured was the brother of the plaintiff, and at the time of the execution of said policy, the assured, in considera- tion of natural love and affection, assigned the same to the plaintiff, and to avoid the expense and trouble of executing a separate in- strument of assignment, authorized and directed the defendant to make the said policy payable to the plaintiff, which the assured was then and there advised by the defendant he might lawfully do, the defendant well knowing that the plaintiff was the brother of the said assured, and that the consideration of said assignment was natural love and affection, and nothing else." In the third paragraph, as follows : " That the assured was the brother of the plaintiff, and that the 110 SUPEEME COURT OF INDIANA. Provident Life Insurance and Investment Company v. Baum. plaintiff as such brother, had an interest in the life of the assured, and that the assured, from motives of natural love and affection, caused said policy to be made payable to the plaintiff." In the fourth paragraph, as follows : " That the said plaintiff had an interest in the life of said as- sured to the extent of three thousand dollars." An answer, in several paragraphs, was filed, consisting of a gen- eral denial, and, in other paragraphs, setting up that the death was the result of suicide, and alleging that the plaintiff had no in- terest in the life of the deceased, on which issues were joined. The question of interest is also raised by an instruction of the court to tRe jury, and is reserved by a special bill of exceptions, under section 347 of the practice act, 2 G. & H. 210. We quote from the bill of exceptions, as follows : " The cause came on," &c., " and the parties had given evi- dence proper to be submitted to the jury in the cause, tending to prove that the said Napoleon Baum, the plaintiff, at the time of the issuing of said policy of insurance, and of the death of said Americus Baum, was a young man in good health, of about twen- ty-three years of age, not living with said assured, and in no man- ner dependent on him for his support, and that said Napoleon had no interest whatever, of a pecuniaiy nature, in the life pf said Americus ; and thereupon at the proper time, the court charged the jury as follows : " It is wholly immaterial in this case, whether said i)laintiff had or had not any interest of a pecuniary nature in the life of said Americus." The bill of exceptions also states that " evidence was given to the jury on the trial, proper to be submitted to them in the case, tending to prove that the death of said Americus Baum occurred from a gunshot wound in Porter County, Indiana, about six miles from Valparaiso, and about an hour and a half of easy travel from Valparaiso, which then was the post-office of said plaintiff, and from which place there was a daily mail to and from Chicago, and that one day was sufficient time for him to go or send to Chicago, where was the office of said defendant ; that said plaintiff was then engaged at his home, where said death occurred, in making hay, and that there was no obstacle in the way of his going or sending to said office, other than his ordinary farming operations, and that he neither gave, nor caused any notice of the death of said Amer- NOVEMBER, 1867. Ill Provident Life Insurance and Investment Company v. Baum. icus Baum to be given to said company, until eight or ten days after his death ; bat it was also proved that said policy of insurance was, during all that time, in the trunk of said Americus Baum, at Chicago, and had never been in the possession of, or seen by said plaintiff, till the end of said eight or ten days, and that when the plaintiff, at the end of said eight or ten days, notified said company of said death, the officers of the company gave him a blank form for an affidavit in regard to said death, and stated to him that it would be sufficient if he made it out and returned it within three or four weeks, which he did ; and thereupon, at the proper time, the court gave to the jury the following charge, to wit : " The fact that the plaintiff did not know of the condition in the policy of insurance, in regard to notice to the company of the death of said Americus, if you find from the evidence that such is the fact, excused the plaintiff from such notice, until after he was informed of such condition, and the failure to give notice for such time, under such circumstances, is no ground of defence. I do not mean to say that he could wait indefinitely, but that, if he, within a reasonable time, procured the policy, and on the same day gave the company verbal notice of the death, and the company then gave him a blank form of a notice, without objection as to the time, and he was until that time, ignorant of that condition, it may be considered by the jury in deciding whether he gave the defendant notice of the death within proper time ; and the jury may also take into consideration the action of the company, and "^ the time of such action of the notice, to learn the circumstances \^w of the death. Immediate notice means notice within a reasonable ^^^^ time, under all the circumstances." \\ The position assumed by the appellant in argument, that this ^policy is one of indemnity, and that the appellee must show an interest in the life of the assured, does not, we think, arise in this case. The policy in terms declares that the company insure Americus Baum against loss of life, in the sum of three thousand dollars. It cannot be questioned that a person has an insurable interest in his own life, and that he may efiect such insurance, and appoint any one to receive the money in case of his death during the existence of such policy. It is not for the insurance company after executing such a contract, and agreeing to the appointment, to question the right of such appointee to maintain the action. If there should be any controversy as to the distribution among the 112 SUPREME COURT OF INDIANA. Provident Life Insurance and Investment Company v. Baum. heirs of the deceased, of the sum so contracted to be paid, it does not concern the insurers. The appellant contracted with the insured to pay the money to the appellee, and upon such payment being made, it will be discharged from all responsibility. So far as the insurance company is interested, the contract is effective as an appointment of the appellee to receive the sum insured. The demurrers to each paragraph of the complaint were properly over- ruled. The charge of the court upon the question whether the appellee had any pecuniary interest in the life of the assured, or not, was correct. The agreement on the part of the assured, that in the event of his death, his legal representatives should, as soon as possible there- after, give notice in writing to the company, must have a reason- able construction. Thus, the law in this state does not authorize letters of administration to issue until fifteen days after the death of an intestate, and it can hardly be insisted that a notice given in this state within that time is unreasonably delayed. The law as stated in Angell on Fire and Life Insurance, is, that " there must be no unnecessary delay, nothing which the law calls laches." § 230. It has been held'that " the terms ' forthwith,' in a policy of insurance, used in connection with giving notice to the under- writers of a loss by fire, and ' as soon as possible ' after a fire oc- curs deliver a particular account of such loss, are not to be taken literally, but mean with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. In ordinary cases, whether due diligence has been used by the assured, or he has been guilty of no unnecessary procrastination or delay, under all the circumstances of such cases, are questions of fact, to be determined by the jury." Edwards v. Baltimore Fire Insurance Oo. 3 Gill, Md. 176. We think the instruction on this subject very fairly stated the law to the jury, and that the evidence upon the question of dili- gence fully sustains the finding. The judgment is affirmed, with five per cent, damages and costs. Note. — On the point respecting insurable interest, see Lord v. Dall, post, 164, note and cases cited. As to notice, see Inman v. Western Fire Ins. Co. 12 Wend. 452 ; St. Louis Ins. Co. V. Kyle, 11 Mo. 278; Heath v. Franklin Ins. Co. 1 Cush. 257 ; Cornell y.Le Roy, 9 Wend. 163. In LongJiurst v. The Star Ins. Co. 19 Iowa, 364, (1865,) a policy of fire insur- ance was issued upon a mechanic's lien. According to one condition of the NOVEMBER, 1867. 113 Provident Life Insurance and Investment Company v. Baum. policy, suit upon tlie same was required to be brought witMn a certain time from loss. The condition was not complied with ; but the court held, Wright, C. J., dissenting, that if "the company consent to grant a poKcy upon such an interest, they do so subject to the unavoidable delay in the judicial ascertain- ment of the value of that interest if a loss should occur. If, with reasonable diligence, that value cannot be legally ascertained in time to bring an action on the poUcy within a year from the date of the loss, then it follows " that they intended, -in this class of insurances, to waive the condition, limiting the right of action to one year. See also Stout v. The Fire Ins. Co. of New Haven, 12 Iowa, 371 ; Gamble v. Accident Assurance Co. 4 Irish Kep. Com. Law, 204. KENTUCKY. New Yoek Life Tnsueance Company vs. Graham. (2 Duvall,506. Court of Appeals, Summer Term, 1866.) Practice. Affirmative of issue. — In an action upon a life policy by the appellee, in which the ground of defence was false representations of the habits of the insured at the date of the policy, and death from intemperance, the appellant held the afBrmative of the issue. Instructions as to the habits of the assured which were prejudicial to the appellee cannot be taken advantage of by the appellant. Cause of death. — The facts in the case authorized the jury in iinding that the death of the assured was caused hy an overdose of chloroform and not by delirium tremens. The case is not stated in the original report ; but the facts may be inferred from the language of the opinion. T. iV. lAndsey ^ John Rodman, for appellant. A. J. James and Harlan ^ Harlan, for appellee. Robertson, J. In this suit on a life insurance policy, we per- ceive no material error in either of the two instructions given by the circuit court to the jury, which could be presumed to have been essentially prejudicial to the appellant. To avoid the policy, either on the ground of false representations of the habits of the insured at its date, or of his death being caused by intemperance in the use of intoxicating liquors, the appellant held the affirmative of that issue. There was, therefore, no error in the instruction to that effect. And if there was error in instruct- ing the jury, that, to find for the appellant, they must be satisfied that intemperance was the cause of the death, and also satisfied that his habits were intemperate "before" the insurance — which is indefinite as to the duration of the time before — the error was apparently prejudicial to the appellee rather than to the appellant. Nor can we discover any available error in the question of suffi- cient notice to the appellee of the death of the insured. The facts as shown, justified the verdict as to that matter, and the jury were authorized to find that there was no false representation. Then, whether the jury had a right to find that the evidence was insufficient to prove that the death was the effect of intemper- SUMMER TERM, 1866. 115 New York Life Insurance Company v. Graham. ance, is the only question worthy of grave consideration by this court. Had no chloroform been administered, and he had then died, there could have been scarcely a doiibt that delirium tremens was the sole cause of the death. But according to any rational or con- sistent interpretation of all the testimony, enough of chloroform was given to have produced death without any cooperating cause. As to the quantity administered, there is such an apparent conflict of testimony as to leave the investigating mind in vexatious doubt. But all the facts, properly analyzed and collated, authorized the jury to believe that the quantity was much larger than the attend- ing physicians supposed. And in making that deduction the jury did not discredit either the veracity or intelligence of those pro- fessional witnesses, one of whom was most of the time absent, and the other for some portions of the time was, from lassitude, dozing and unobservant. But it would have been difficult, without im- puting perjury to the non-professional witnesses, not to decide that so much was administered as to have made immediate death inevi- table without any other cause. And although the physicians seemed to think, that, without chloroform, death was imminent, and would probably have ensued, yet the facts, as proved by themselves, and more fully by other witnesses, authorized the jury seriously to doubt, at least, whether he would not have survived that paroxysm, and to gravely doubt, therefore, whether intemperance was the proximate cause of the death. On such facts, whatever might have been the more probable deduction, any jury might have consistently found for the appellee. And it does seem to this court that such a verdict, found by a competent jury, and confirmed by an impartial and enlightened judge, who saw and heard the witnesses, cannot be now set aside without an authorized encroachment on the right of trial by jury. We cannot, therefore, decide that the verdict shall not stand. Wherefore, the Judgment of the circuit court is affirmed. As to burden of proof, see Campbell v. New England Mut. Life Ins. Co. post, 229. 116 COURT OF APPEALS OF KENTUCKY. Morel V. Mississippi Valley Life Insurance Company, MoEEL VS. Mississippi Valley Life Insurance Company. (4 Bush, 535. Court of Appeals, Winter Term, 1868.) Accident insurance. Negligence. — In an action upon a policy of insurance against accident, wherein the company agreed to pay the assured $25 per week, for not more than twenty- six weeks, in case of inj ury from accident causing total disability, it appeared from the petition of the insured that while travellini; in a railroad coach between C. and N. he put his arm inadvertently out of the window of the car, when his hand came in contact with a post standing near the track whereby one of his fingers was so badly injured as to totally disable him for duty in his profession for twenty-six weeks and more; held, on demurrer, that the action was caused by his own carelessness, whereby he deprived him- self of all right to compensation. The case is stated in the opinion of the court. William Atwood, for appellant, cited 1 Bouvier's Law Dictionary, "Accident " ; Hooper v. Accidental Death Ins. Co. 5 Hur. & Nor. Exch. 546 ; Wew Jersey/ M. v. Kennard, 21 Penn. 203 ; Johnson V. Berkshire Mut. Fire Ins. Go. 4 Allen, 388 ; Fireman's Ins. Co. V. Powell, 13 B. Mon. 818. Carlisle ^ O'Hara, for appellee. Peters, J. Appellant alleged in his petition, that on the 3d day of July, 1867, he was in the city of Atlanta, Georgia, and heing about to start to Kentucky, he, in consideration of twenty-five cents, obtained a policy of insurance against accidents from appellee, an incorporated company, chartered by an act of the general assem- bly of Kentucky, the policy to continue a specified time, the terms of which are as follows : That appellee, in consideration of the sum named, insured him in the amount of five thousand dollars, and promised to pay the same to the legal claimant within sixty days after proof that the assured, by any accident within the meaning of said policy, had sustained any personal 'injury during the term of said insurance, and such injuries shall have occasioned death within three months after the happening thereof; or, in case of personal injuries within the same period, by accident not fatal, but causing total disability, the company will pay the assured twenty-five dollars per week, for the term of such disability, not exceeding twenty-six weeks. He further alleged, that while performing said journey, and be- fore the termination of the period for which he was assured, on the railroad from Chattanooga to Nashville, he met with an acci- dent from having " inadvertently " put his arm a short distance out of the window of a car, when his hand came in contact with a WINTER TERM, 1868. 117 Morel V. Mississippi Valley Insurance Company. post standing near the track of the road, whereby the middle finger of his right hand was so badly injured as to render him wholly un- able to pi'actice his profession of surgeon for the period of twenty- six weeks or more. Of which injuries he made the requisite proof in due time, gave notice to appellee, and performed all conditions required by the stipulations of said policy to be performed by him, and concludes with a prayer for judgment against appellee for six hundred and fifty dollars, with interest from the 3d of October, 1867. A demurrer was filed to the petition by appellee, which was sustained, and appellant having declined to plead further, his peti- tion was dismissed, and he prosecutes this appeal. It is apparent from the statement in the petition, that appellant put his arm out of the window of the car while the train was mov- ing with its usual velocity, without the slightest necessity for doing so ; but, as his own statement imports, he carelessly put his arm out of the window of the car in which he was sitting, and while in that position the accident happened. The injury did not result from any of the dangers common to passengers on that and other railroads, but resulted from the dan- gerous position in which he had needlessly and negligently placed his arm ; an injury which, if not to be expected from the exposed position of the hand, was at least probable. If appellant had kept his arm inside of the car, it is perfectly certain he would have received no injury ; and as it was pro- duced by his own fault, he thereby deprived himself of all right to compensation. The demurrer was therefore properly sustained. Wherefore, the Judgment is affirmed. See Schneider v. Provident Life Ins. Co., post, 731. Two cases decided in the Court of Appeals of Kentucky too late for inser- tion here, will be found /ios<, pp. 736, 753. LOUISIANA. Succession of Richard S. Rislet — Heney S. Rislet, Appellant. (11 Rob. La. 298. Supreme Court, July, 1845.) Assignment. — Under the Civil Code, an assignment of a life policy, without notice to the office, will have no effect as to third persons, creditors of the insured, where there is no proof of the acceptance of the assignment by the assignee, and the policy remains in the hands of the assignor. The case is stated in the opinion of the court. Mornor, for the appellant. Barker, for Leedom. Winthrop, for the executor. MoBPHY, J. On the 10th of May, 1841, Richard S. Risley had his life insured for $5,000, at the office of the Ocean Insurance Company, for the space of one year. He died within the time covered by the policy, on the back of which he had indorsed, at different dates, four several assignments for $1,000 each, one in favor of Mills Judson, one in favor of his brother Henry S. Risley, and two in favor of Benjamin J. Leedom. Of these assign- ments, that in favor of Judson, and one of the two in favor of Leedom were approved of by the company, while the others had not been notified to them at the time of the death of the insured. The underwriters paid the full amount of the policy. John W. Andrews, the executor of the deceased, considering as complete the two transfers approved by the office, agreed that $1,000 should be received by Judson ; and having received himself the remaining $4,000 with the consent of the other assignees, to avoid all delay and difficulty on the part of the company, he paid a thousand dollars to B. J. Leedom. The balance of $3,000, he carried to the credit of the succession of Richard S. Risley in the account which he subsequently rendered in the court of pro- bates. In this account, which shows the estate to be insolvent, he placed Leedom and H. S. Risley as ordinary creditors of the deceased, for $1,000 each. Henry S. Risley opposed the homolo- gation of the account, averring that he is the only person enti- tled to the $1,000 transferred to him on the policy, and that the JULY, 1845. 119 Succession of Eisley. creditors of the estate have no right or title to any portion of said sum, for which he prayed to be declared a privileged creditor. B. J. Leedom claimed a similar privilege for the two thousand dollars transferred to him by the deceased, alleging that the sum apparently paid to him had been appropriated to pay another debt of Risley's. Oppositions were made by other creditors, and by Leedom, to various items of the account, which it is unnecessary to notice as they have been passed upon below, and no amendment of the judgment thereon has been prayed for in this court. In relation to the claims of Leedom and Henry S. Risley, the probate judge was of opinion that all the trans- fers made by the deceased should be disregarded as being contra bonos mores, and as giving an undue preference to some of the creditors over the others ; he, therefore, refused the privilege prayed for, and ordered that the executor should account for the full sum of 15,000, being the amount of the policy, in lieu of the i3,000 which he carried to the credit of the succession. From this judgment Henry S. Risley appealed. Benjamin J. Leedom prayed for an amendment of the judgment, so as to place him on the tableau as a privileged creditor for $2,000, in- stead of the $1,000 allowed him as an ordinary creditor ; and the executor prayed that it might be so amended as to debit him with no greater amount than that which he has credited to the suc- cession. We cannot agree with our learned brother of the court of probates, that the transfer of a life policy by the person insured, to one or more of his creditors as collateral security, has any- thing in it contra bonos mores. In France, and other countries of Europe, it is true, insurances on life were for a long time held illegal, and were even expressly prohibited. According to a maxim of the civil law, the life of a free man was deemed above all valuation ; liberum corpus oestimationem non recipit ; and the French commentators, with the single exception, perhaps, of Pardessus, inveigh against such policies as being gambling con- tracts of the worst kind ; but even in those countries, the prac- tice of life insurance, which is now so prevalent in England and in the United States, begins to be viewed in a diiferent light, and life insurance companies have been estabhshed in several places. Their usual purpose, says Chancellor Kent, is to provide a fund for creditors, or for family connections in case of deatli. 120 SUPREME COURT OF LOUISIANA. Succession of Eisley. " A bond fide creditor has an insurable interest in his debtor's life to the extent of his debt, for there is a probability, more or less remote, that the debtor would pay the debt if he lived. A per- son may insure his own life for the benefit of his creditors, or he may insure the life of another in "which he may be interested, and assign the policy to those who have an interest in the life." 3 Kent, 366, 367. When the assignee has a legal and direct pecuniary interest in the life of the insured, and the evidence satisfies us that such an interest existed in this case, we can see nothing immoral in the transfer of a life policy to him as collat- eral security.^ 2 Marshall on Insurance, 766. 12 Mass. 115.^ As to the undue preference which these transfers may give to the transferees over the other creditors, it is sufficient to say, that no revocation of them, on that ground, has ever been demanded by the executor or any of the creditors, and that more than one year has elapsed from the date of these transfers, and from the ap- pointment of the executor. Civil Code, arts. 1982, 1989. The only question then which this case presents is, whether the assignments made to the opponents are valid, although no notice was given to the insurance office during the lifetime of the assignor. It is urged that as this policy does not contain the ordinary clause that no assignment shall take place without 'the consent of the underwriters, but, on the contrary, promises to pay $5,000 to the insured, his executors, administrators, and as- signs, no such consent was necessary to render the transfers binding on them. Admitting this to be true as between the as- signees and the office, the question yet remains, have these trans- fers without notice to tlte company, before the death of the in- sured, vested any rights in the opponents, to the prejudice of his other creditors ? We see nothing that should take this case out of the general rule laid down in article 2,613 of our Code, that the transferee of a debt, or other incorporeal right, is only pos- sessed, as regards third persons, after notice has been given to the debtor of the transfer having taken place. The preceding article provides that in the transfer of debts, rights, or claims on a third person, the delivery takes place between the transferrer 1 An assignee need have no interest in the life asstired ; if the assignor had an insurable interest, that is sufficient. See Si. John v. American Mut. Life Ins. Co. post, 359 ; and note to Lord v. Dall, post, 154. 2 Post, 154. JULY, 1845. 121 Succession of Kisley. and the transferee, by the giving up of the title. In this case, the policy remained in the possession of the transferrer. No no- tice whatever of the transfers was given to the insurance com- pany, and it is not even shown that such transfers were accepted by the transferees before the death of Richard S. Risley. Civil Code, art. 1804. Under these articles of the Code, it has been repeatedly and uniformly held, that the assignment of a debt vests in the assignee only an inchoate right, and that the assignor is not divested, as regards third persons, until notice be given to the debtor. Cox v. White, 2 La. 425. Carlin v. Bumar- trait, 5 Mart. N. S. 21.1 Bainhridge v. Clay, 4 Ibid N. S. 66.2 It has been held in England, says Phillips on Insurance, that life pol- icies are assignable so as to give a right of action in the name of the assured, and they are frequently assigned as security for loans. It has been held, however, that where a policy was assigned, without notice of the assignment to the insurers before the bank- ruptcy of the assured, the property in the policy passed to the assignees. 1 Phillips, p. 38,^ and the authorities there quoted. It is urged by the appellant that, in receiving the money from the underwriters, Andrews acted not as executor, but as his mandatary to collect it, and wrongfully converted it to the use of the estate. If this were true, he might at best have a per- sonal action against Andrews ; but the record shows that the lat- ter, as executor, had notified the company not to pay any of the transferees ; that this opposition was subsequently withdrawn with regard to the two transfers approved and recorded on the books of the office ; that the appellant authorized Andrews to receive the money which the company was unwilling to pay to him ; and that Andrews receipted for it to them as execu- tor. This course was clearly pursued to avoid all delay and difficulty, and with the understanding, no doubt, that the rights of the parties to this money should be afterwards settled in due course of law. In relation to the |1,000 received by Leedom under his ap- proved transfer, it appears from the evidence that |825 of this sum were paid in his discharge to J. W. Zacharie, who held a draft drawn upon Leedom by the deceased, and which he had accepted ; that this draft was drawn and negotiated by the de- ceased entirely for his accommodation, and at a time when he 1 This is vol. 17 of the Martin series. -2 16 Mart. 3 5th ed. §§,76 et seq. 122 SUPREME COURT OF LOUISIANA. Murphy v. Mutual Benefit Life and Fire Insurance Company. was indebted to Leedom. For this amount, the latter is, we think, entitled to a credit on the tableau as an ordinary creditor. It is, therefore, ordered and decreed, that the judgment of the court of probates be so amended as to debit the executpr with no larger amount than that which he has carried to the credit of the succession, and to place Benjamin J. Leedom on the tableau as an ordinary creditor of the deceased, for $1,825, instead of $1,000 ; and that it be affirmed in all other respects, with costs. See 1 Phil, on Ins. §§ 76 et seq., 6th ed. Hugh Murphy vs. The Mutual Benefit Life and Fire Insurance Company. (6 La. An. 518. Supreme Court, May, 1851.) Health of the insured. Post moHem examination. — Apost mortem examination which re- vealed the fact that the insured died of inflammation of the intestines and ulceration is not evidence that he was afflicted with these disorders four months before, at the time of insuring, though the physicians expressed the opinion that the disorders were of long standing; especially where there is evidence that he was examined before being insured by the company's physician and accepted, and had been seen daily for some months be- fore, and appeared to be in perfect health. The case is stated in the opinion of the court. Brewer ^ Purvis, for plaintiff. Howard ^ Q-oold, for defendants. Preston, J. The defendants insured the life of a slave belong- ing to the plaintiff for one year from the 21st of June, 1850. He died on the 23d of October, 1850. The policy contained a con- dition that he should have had no chronic disease at the time of the insurance. By a post '■mortem examination made fifteen hours after his death, physicians came to the conclusion that he died of chronic inflammation of the intestines, and ulceration. One of the physicians attended on him in July for diarrhoea and fever. He became convalescent. He attended him again in October, during his last illness. There is not sufficient evidence that the chronic inflammation of the intestines and ulceration existed at the time his life was in- sured. The diarrhoea and fever of July are not proved to be chronic diseases. It is true, in the post mortem examination, the opinion is expressed that the disease of which he died was of long standing. These are very indefinite terms, and do not necessarily DECEMBER, 1855. 123 Kennedy v. New York Life Insurance Company. • show that the disease existed in June, when the insurance was eiFected. Internal inflammations tend rapidly to dissolution in this climate ; and fifteen hours of mortification, before the examination, may have made great ravages on the intestines. We have frequently been called upon to presume the existence of diseases long anterior to death from post mortem examinations ; but have generally been unable to do so without some corroborat- ing proof or circumstances. Succession of Dupri v. Prescott et al} Deeaux v. Lahy? Bupres v. Desmoret.^ In this case, on the contrary, there is strong evidence to coun- teract the presumption. The slave was examined at the time of the insurance by the physician of the defendants, who was satisfied with his health. He had just been purchased from a negro trader in whose depot Dr. Carr was the attending physician. The doctor saw him daily for some months before, and on the very day he was sold, when he appeared to be in perfect health ; and if he had been sick before he would have known it. The evidence abundantly supports the judgment of the district court, and it is affirmed, with costs. Kennedy vs. New York Life Insurance Company. (10 La. An. 809. Supreme Court, December, 1855.) Temptyrary policy. — A gave B a receipt for a certain sum of money as premium for one year's insurance on his (A's) life. The receipt specified that if the risk was accepted a policy should be issued within thirtj-- days by the home office ; " but if rejected this tem- porary policy shall become void on receipt of such rejection at this office, when a pro rata amount of the premium received shall be returned." After the death of the insured, which occurred several months subsequent to this transaction, the companj', not having issued a polic}', directed B to return the sum paid, except a pro rata amount, stating that the application was declined. i?eW, that the temporary policy did not terminate at the end of the thirty days, and the company were liable. Insurable interest. — To put the plaintiff to the proof of an insurable interest there should be a special denial in the answer of such interest. Per Lea, J., where the interest in the life of the assured is actually and definitely ascertained, that is the measure of recovery. The case is stated in the opinion of the court. Wolfe ^ Singleton, for plaintiflp. R. Hunt ^ Bright, for defendants and appellants. A policy in the name of a single partner, is limited to his own share. 2 Duer, 20, 24, n. 1 Arnould, 147. 3 Kent, 258. [11th ed. 342.] Graves v. Boston Marine Ins. Co. 2 Cranch, 419. 1 5 La. An. 592. 2 3 5 La. An. 591. 124 SUPREME COURT OF LOUISIANA. Kennedy v. New York Life Insurance Company. ~ • Meeeick, C. J. On the 21st day of May, 1852, the defendant,, through C. 0. Lathrop, its agent at New Orleans, entered into the following agreement with the plaintiff, viz. : "Agency New Yoek Life Insueance Company, No. 92 Camp Street, New Orleans. TEMPORARY POLICY NO. 41. " Received of Samuel H. Kennedy, Esq., the sum of f 157, as specified below, in full, for twelve months' premium on the amount of $5,000 herewith insured on the life of David Wooldridge Matthews, subject to the usual conditions contained in the policies of the New York Life Insurance Company. " It is hereby agreed that a policy from the parent office for the above amount $5,000 shall be exchanged for this, within thirty days from this date : provided, the risk is accepted ; but if rejected, this temporary policy shall become void on receipt of such rejection at this office, when a pro rata amount of the premium received shall be returned. $93 30 costs, 62 20 note, [Signed] C. C. Latheop, 1 50 policy. Agent." $157 00 At the time this agreement was made, and subsequently, the parties were treating for an insurance for life upon the life of Matthews, who it seems at that time was under medical treatment. The physician of the company having given it as his opinion that, from the improved state of Matthews' health, it would be safe to issue a temporary policy at once, the above instrument was exe- cuted. It further appears that Matthews went to Louisville, where he continued under medical treatment until his death, the 3d of Sep- tember of the same year, the proposition for an insurance for life still being entertained and only awaiting the certificate of the Louis- ville physician to be issued. He died of tubercular consumption. There is nothing in the testimony to induce a suspicion that Ken- nedy, Matthews, and the physician of the company, were not act- ing in the most perfect good faith at the time the agreement was entered into. After the death of Matthews, the president of the company hav- ing been informed thereof by C C. Lathrop, the agent, directed DECEMBER, 1855. 125 Kennedy v. New York Life Insurance Company. him (Lathrop) to deduct the pro rata premium for thirty days, and return the remainder of the premium paid to Kennedy, the plain- tiff, advising Lathrop that the application forwarded to that office, upon examination on receipt, was declined or suspended until Mr. Matthews' complete recovery. This appears to be the first notice of the rejection (if such it can be called) of the temporary policy issued the 21st of May. The answer admits Lathrop's authority to enter into said agree- ment. The first question, therefore, is, Did the temporary policy terminate at the expiration of the thirty days ? We are satisfied that it did not so terminate. The thirty days were fixed as the period in which the policy was to be exchanged for one from the parent office, if the risk should be accepted by the parent office. This period was in the interest of the company, and was for the purpose of enabling the parent office to reject, if they should see fit, the contract entered into by their agent. And it was their duty to forward the rejection of the contract made by their agent to the office at New Orleans, within the thirty days, and im- mediately on receiving notice of the contract made on their behalf- by their agent. 11 L. R. 286. The acknowledgment of the receipt of the premium for the in- surance upon the life of David Wooldridge Matthews, for the amount of 16,000 for twelve months, shows that, in contemplation of the parties, the contract was for insurance for one year. If the policy should be rejected by the company, it did not annul the con- tract made by their agent for the past ; it terminated it for the future only. The insured was to receive back his premium pro rata for the time remaining, and as a consequence of the retaining of the premium between the date of the temporary policy and the notice, the company were liable to the risk during the same period. We have no doubt of the liability of the company upon the instru- ment produced in evidence. We have looked into the evidence offered by defendant and re- jected by the court. It was not communicated to the insured, and its reception could have had no influence upon the case. It is objected in this court, that the insured was without an insurable interest to the amount of the policy taken out, and that, therefore, the judgment should be either reduced in amount or absolutely in favor of the defendant. There would be more force in this objection if the defendant had put the fact at issue in his answer. 126 SUPREME COURT OF LOUISIANA. Kennedy ». New York Life Insurance Company. The answer, after admitting the execution of the policy by I^athrop, as their agent, is but a general denial as to all other matters. We think in order to put the plaintiff upon proof of interest in the life insured, there should have been a special allegation to that effect. The contract of insurance is one of indemnity ; but in the life insurance the amount of the indemnity, we think, like a valued policy, is agreed upon beforehand, and the other party ought not, under our system of pleading, to contest this admission in his con- tract, without putting it expressly at issue. Perhaps in the action of assumpsit at common law upon a policv of life insurance, under the general issue, it might be necessary to show an interest in the life insured, but then it would be because, in the action of assumpsit, that plea puts everything at issue, the consideration, as well as everything tending to show that there was an indebtedness on the part of defendant. Under this plea, the defendant might give in evidence the ille- gality of the contract, coverture, lunacy, and in fine, everything which would show that the plaintiff was not entitled to recover. 3 Greenleaf, 135. At common law also, upon simple contract debts, that is, on contracts not under seal, (and of this nature we take the policy of insurance to be,) it was necessary in all cases that the party suing upon such contract should prove the consideration for the promise. Our law, on the contrary, presumes every contract which does not appear illegal or immoral on its face, to be made for a vahd cause and upon a sufficient consideration, and it is incumbent upon him who would put the opposite party upon the proof of the suffi- ciency of the cause, to do so specially by his pleadings. 2 L. R. 455. As a general rule in life insurance there is no distinction between total and partial losses. Anneslej', 207. If a party is not permitted under our law to recover on an insur- ance for life, in a life in which the insured has no interest, it is because it is a wager, and as such, is against the policy of our law. It is evident, then, that the defendant who would avail himself of the defence, should plead it. Rarvey v. Fitzgerald, 6 Mart. 550. It is true that the plaintiff in his petition has alleged that he had an interest in the life insured, and he has also adduced proof to show that he was the surviving partner of Kennedy & Foster, and DECEMBER, 1855, 127 Kennedy v. New York Life Insurance Company. that Matthews, as a member of the insolvent firm of Matthews & Patch, was indebted to Kennedy & Foster, in a sum somewhat larger than the amount covered by the policy. Perhaps under the authority of Millaudon v. Atlantic Insurance Qonvpany, 8 La. 557, the plaintiff would be entitled to recover, had the defendant put the interest of the plaintiff directly at issue. However this may be, under the view we take of the case, the allegation in plaintiffs petition was unnecessary, and the introduction of proof, out of ex- treme caution, cannot be permitted to prejudice his case. It is a well settled rule of law that unnecessary allegations need not be proven. Ilontgomery v. Meyers, 2 An. 276. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs. Spofford, J. Although the fact of the plaintiffs interest, as a creditor, in the life of Matthews, appears to me to have been put at issue by the pleadings, yet I do not find that the extent of that interest was put at issue at all. The defendant, it seems, has raised that question for the first time in this court. I therefore think the judgment should not be disturbed, unless it appears affirmatively and conclusively from the evidence that the plaintiff's interest was less than the amount insured. But' the evidence is quite consistent with the opposite hypothesis. For instance, if the plaintiff was in advance to his firm, of Kennedy & Foster, or if the assets of the firm were less than the liabilities, and the succession of Foster insolvent, or if at the time the insur- ance was effected, Kennedy, as is probable, had the sole adminis- tration of the partnership affairs, it might follow that he had an insurable interest in Matthews' life to a greater amount than the policy specified. I therefore concur in the judgment. Lea, J. I fully concur with the other members of the court in the opinion whicfi has been read, so far as it recognizes the liabihty of the defendant upon the contract of insurance ; the only difference between us has reference to the measure of that liabilit3^ The plaintiff, Samuel H. Kennedy, insured the life of his debtor, Matthews, for the sum of |5,000. The latter having died within the period covered by the policy, Kennedy brought this suit in his 128 SUPREME COURT OF LOUISIANA. Kennedy v. New York Insurance Company. own name to recover the amount for which his debtor's life is in- sured. It appears to me that, assuming the defendant's Hability on the contract, but one inquiry can be entertained in examining this case, and that is, what is the interest which is protected by the policy ? I deem it immaterial to inquire whether, under the plea of general denial, it was or was not necessary that an allegation and proof of interest should be made. The answer in the absence of a special allegation of an interest might have contained a special averment of the want of it, but the petition does contain a special averment of the plaintiffs interest as a creditor, and the evidence introduced by the plaintiff himself conclusively shows the precise amount of that interest. Now as we have the means of determining in dollars and cents the full amount of the plaintiff's insurable interest, as fixed by his own proof, the question is, whether the court shall, notwithstanding the evidence, give him a judgment for the whole amount expressed in the policy. The evidence in this case is quite as conclusive with reference to the plaintiff's insurable interest as the most formal admission could possibly make it. We know that it is based upon a debt due to the late firm of Kennedy & Foster, for the sum of $5,462, with interest from the 31st of December, 1848. The fact is established by the plaintiff himself. It is not disputed. Now, should we take this undisputed fact as the basis of the judgment in this case, or should we ignore it altogether, on the ground that the averment of an insurable interest and the evidence offered in support of it, were alike unnecessary and will therefore be rejected as surplusage ? It appears to me (it is urged with deference to the opinion of the majority of the court) that the adoption of such a doctrine results in a judgment in favor of the plaintiff for a sum lai-gely exceeding the amount which his own evidence establishes as due to him. Acting upon the assumption that evidence adduced on the trial furnishes ample materials for a judgment upon the merits, it is proper next to inquire what was the amount of the plaintiffs in- surable interest in the policy, for which, and for yv-hich alone, as it appears to me, he is entitled to a judgment. The plaintiff was a member of the commercial firm of Kennedy & Foster, since dis- solved by the death of Foster. Matthews was a debtor of this firm, as before stated, in the sum of $5,462, with interest from the 31st of December, 1848. It is not shown that there were any other partners besides the plaintiff and Foster, and the presumption of DECEMBER, 1855. 129 Kennedy v. New York Life Insurance Company. law, in the absence of proof to the contrary, is that their interest as partners was equal. The plaintiff's interest, therefore, in the debt due by Matthews, which it was the object of the insurance to pro- tect, is one half of 15,462, with interest as above stated. The de- cree of the court, however, awards him the sum of $5,000. What the judgment of the court should be in such a case depends, it appears to me, upon the solution of the question, whether a partner who insures in his own name, and sues in his own name, can re- cover more than his individual and separate interest in the object insured. Although on this point there is a conflict of opinion among the French writers on insurance, it appears to me that neither in Eng- land nor America is there any division of opinion. The author- ities, so far as I have had access to them, are unanimous and unequivocal. Mr. Duer, in his work on insurance, discusses this question elaborately, and concludes with the opinion that, " in the United States, the doctrine may be considered as established, that although each partner has a right to insure the partnership prop- erty in the name or on account of the firm, yet where the insur- ance is expressed to be on his sole account, it must be limited in its application to his individual share. See 2 Duer, § 20, lect. 9. In the case of Graves v. The Boston Marine Insurance Company,^ the decision of which the author considers " conclusive evidence of the existing law on this subject," Chief Justice Marshall remarks, that " under no rule of proceeding on a special contract, can the interest of a copartnership be given in evidence on an averment of individual interest, or an averment of the interest of a company be supported by a special contract relating in its terms to one indi- vidual." In the copious notes annexed to his lecture, Mr. Duer has with great care collated many of the English authorities, and reconciles them with each other and with our jurisprudence on this subject. Mr. Phillips, in the last edition of his work on insurance, fully supports the opinion of Mr. Duer. See vol. 1, p. 219, § 391, et sequitur. In the reasons given for the judgment rendered in this case, it is intimated that a distinction is made between the liability on con- tracts for the insurance of property, and contracts of life insurance, and that, " as a general rule, in life insurance there is no distinc- tion as to total and partial losses." 1 2 Cranch, 419. 130 SUPEEME COURT OF LOUISIANA. Kennedy ». New York Life Insurance Company. From the necessity of the case, a hfe poUcy is always against a total loss, but whether it is for the whole amount specified in the policy, or the whole amount of the interest of the assured, depends entirely upon the character of each particular contract. " Where the interest of the party effecting a life iasurance, or in whose /avor it is made, is manifestly indefinite, as in case of dependence for support, the interest is valued at the amount insured." See 2 Phillips, § 1755, p. 441.^ No prdof of the extent of the interest of the insured is necessary in such a case. It will be sufficient to prove a beneficial interest without showing its extent. But I apprehend no such rule of recovery, even in contracts of life insurance, can be extended to cases where the interest is fixed and determinable, as in the case at bar, viz., that of a creditor in the life of his debtor for the security of the debt due to him. The right of the insured to recover in such case will be regulated precisely as in cases of in- surance of property against fire or marine risks, viz., by the extent of the interest of the insured. This very question appears to have engaged the attention of the writers on life insurance. Mr. Phillips, in the last edition of his work on insurance, 2d vol. § 1755, remarks: " Where a policy of insurance is taken out by a creditor on the life of his debtor, or in favor of any party having a definite computable interest in the insured life, the amount of the interest being pre- cisely determinable, a total loss by the death of the insured subject is only the amount of such interest, although it may be less than the amount specified to be insured." And again, § 1216 : " In a policy in favor of a creditor on the life of a debtor, as security for a debt in a fixed sum, the amount of the insurable interest may be estimated as in any insurance upon property." And in such case it is manifest the amount recoverable cannot exceed that interest. See also § 1247 ; also vol. 1, § 208. I think the plaintiff is entitled to recover of the defendant a sum equal to one half of the amount due by Matthews to the finn of Kennedy & Foster, and that his recovery should be restricted to that amount. As to insurable interest, see Lord v. Dall, post, 154, and note, where the sub- ject is discussed in the light of the latest authorities. 1 Pp. 422, 423, 5th ed. DECEMBER, 1858. 131 Summers v. United States Insurance, Annuity, and Trust Company. H. M. Summers vs. United States Insueance, Annuity, and Tkust Company. (13 La. An. 504. Supreme Court, December, 1858.) Increase of hazard. — By the terms of a life policy a slave was insured as a laborer^ in a tobacco warehouse ; and the policy declared that he was not to be employed in auy more hazardous occupation. While on his way to a sugar plantation, with intent to labor there, he was drowned. Held, that the company were liable, even though working upon a sugar plantation were more hazardous than working in a tobacco warehouse ; for the slave had not reached the plantation and was not laboring there when drowned. Parol evidence is admissible to show that a written assignment of a policy was intended as collateral security for an obligation which had been discharged before the suit was brought. Hazard. — Testimony was properly rejected to the effect that the company would not have insured at the rate they did, had it been known that the slave would have been subjected to the risk of a voyage on a steamboat. The case is stated in the opinion of the court. Moise ^ Randolph, for plaintiff. Hiestand Sj" Leovy, for defendants. Cole, J. This suit is brought on a policy of life insurance to recover the amount insured on one of the three slaves described in the policy, alleged to have become lost by means of the perils insured against. It is insisted that defendant is not liable, because, by the terms of the application, the slaves were insured as laborers in a tobacco warehouse, and the policy declares that they are not to be em- ployed in a more hazardous occupation ; that the slave was lost at Lobdell's Landing, whilst walking on the plank from the steamer Emperor to the shore ; that he was then being sent by plaintiff to be employed upon a sugar plantation, which defendant avers is a more dangerous occupation than that of working in tobacco warehouses. This defence cannot be maintained. The slave was lost whilst a passenger on a Mississippi steamboat. There was no provision in the policy to prevent the plaintiff from removing the slave from New Orleans, except that he could not be taken to more southern localities ; which implies he might be con-_ ducted to more northern latitudes. Lobdell's Landing is located further north than New Orleans. Conceding that a sugar plantation is a more hazardous employ- ment than tobacco warehouses; still, the slave was not lost whilst working thereupon. He had not reached the plantation. 132 SUPREME COURT OF LOUISIANA. Summers «. United States Insurance, Annuity, and Trust Company. If plaintiff had not had the intention of employing him upon a plantation, but had been taking the slave at the time of his death to work in a tobacco warehouse in Virginia, there could then be no doubt of the liability of the defendant. The intention to employ him on a sugar plantation was not the cause of his death ; but a strong wind which caused him to lose his balance and fall in the water in passing on a plank from the steamer to the shore. If plaintiff had accompanied the slave, he might have changed his mind after arriving at the plantation and returned with the slave to New Orleans. There is nothing in the policy which liberates the defendant from liability on account of the intentions that plaintiff might en- tertain during the existence of the policy of violating its terms. There is a bill of exceptions to the admission of the testimony of Mr. West, of the firm of Cammack, Squires & West. The policy and the application bear upon them the written as- signment of the plaintiff of all his rights and interest therein to Cammack, Squires & West. Mr. West testified that neither he nor his firm had any interest therein, and had not had for a long time ; that it had been given as collateral security for an obligation that had long since been set- tled, and the original obligation had been extinguished before the institution of this suit. Defendant maintains that plaintiff cannot have his action upon the policy until he shows a written reassignment to himself. We are of opinion, that this parol evidence did not contradict a written instrument ; it did not deny that a transfer had been made to the firm, but only that the effect of the transfer had ceased, and the firm had the right to disavow any further interest in the policy. There is also a bill of exceptions to the opinion of the judge re- jecting testimony to show that the company would not have in- sured at the rate of the policy, if it had been known that the slave would have been subjected to the risk of a voyage on a steamboat. The judge did not err. The witnesses were not offered to ex- plain an obscure expression in the policy, but to establish a prohi- tion not in the policy. Judgment affirmed, with costs. As to the last point in tMs case, see Harlman v. Keystone Ins. Co. post, 649, holding admissible the testimony of experts as to who are insurable subjects j and Ratals v. American Mut. Lifi Ins. Co. post, 549, holding the contrary. JANUARY, 1859. 133 Succession of Bichardson. Succession of Robert Richardson. (14 La. An. 1. Supreme Court, Janiaary, 1859.) Assignment. — Where the husband applied for and obtained insurance on his life, accom- panying the application with a transfer of the policy, when issued, to his wife, to whom he was indebted for her paraphernal funds received by him ; held, that the wife was enti- tled to the amount of the insurance on the husband's death. The case is stated in the opinion of the court. J. A. Rozier, for opponent and appellant. L. Caster a, for appellee. Merrick, C. J. The widow of the deceased has filed an ac- count and tableau of distribution, in which she has set herself down as privilege creditor to the amount of $9,907.62, for paraphernal funds received by her husband, subject to a credit of f 5,000, the amount collected by her upon an insurance upon the life of the deceased. The opponent denies that the intestate received and appropri- ated to his own use the amount of paraphernal funds claimed. On this part of the case the proof shows that the deceased received only $7,907.62, instead of the amount claimed by the administra- trix. It is next contended that, inasmuch as the widow has not re- nounced the community, she is presumed to be a partner in it, and is not permitted to apply the partnership assets to her individual claims to the prejudice of creditors. In support of this position appellant's counsel relies on the decision in the case of Dejean, 5 An. 594. In the present case it appears that the widow caused an inventory to be taken, and as the creditors have taken no steps to compel her to accept or renounce, we think she still has the privilege of re- nouncing the community. But this privilege would be of no value unless she had the right of enforcing her paraphernal claims against the estate oFher husband in the interim. So long as she has a right to renounce she cannot be charged as a partner. C. C. 1043, 1048, 2383. C. P. 980, 982. It is further contended by appellant that the wife has no privi- lege on the movables for the restitution of her paraphernal funds. This position is undoubtedly correct. 3 Rob. 276. 2 An. 789, Friend v. Fenner. C. C. 2355, 2367. 134 SUPREME COURT OF LOUISIANA. Succession of Richardson. It is farther urged as a ground of reversal that the transfer of the policy of insurance to the wife was invalid. The policy of insurance was filled up as of the 18th day of April, 1853, for |5,000, payable to Robert Richardson, his execu- tors, administrators, and assigns, and was to continue for seven years on the payment of the annual sum of $90.25. The domicil of the company, the Mutual Life Insurance Company of New York, appears to be the city of New York, and the policy purports to be signed by the president and secretary of the company. The policy bears the following indorsement, viz. : " For value received I hereby transfer and set over all my right, title, and interest in and to the within policy of insurance on my life to my well beloved wife Emma Richardson, daughter of Alex- ander Lesseps and Manette Tr^m^ his wife. » New Orleans, 17th May, 1853. (Signed) Robert Richardson. Witness: W. A. Bartlett, J. Meteye." It has been much discussed whether the husband and wife could enter into a contract in this form by which a policy of insurance could be transferred. It does not appear to us important to decide the question, and we will concede the benefit of it to the opposing creditor. C. C. 1784, 2421. It may be fairly presumed that a policy of insurance was nego- tiated in this city, and that it was filled up as of the date of the application by the agent here, and that some time was taken up in the correspondence. Kennedy v. New York lAfe Insurance Com- pany, 10 An. 809.1 Now the witness, who acted as the sub-agent here, and who con- sequently has the best means of knowing, and testifies in regard to a matter he would be most likely to recollect, swears, after exam- ining the copy of the policy, as follows, viz. : " I received the application from Mr. Richardson for an insur- ance on his life in the month of April, 1853. He wished the policy for f 5,000. I forwarded the application to the parent office in New York, and the policy was issued. Accompanying this ap- plication was the transfer of the policy to the wife of Robert Rich- ardson, Mrs. Emma Richardson. The transfer was approved and 1 Ante, 123. JANUARY, 1859. 135 Succession of Sicbardson. entered in the ofBce. The first and second annual payments were made on the policy. The policy remained in the name of Mrs. Richardson at the time of her husband's death." It thus appears that the policy was issued originally in the name of the wife, for it was forwarded to the office in New York accom- panied by the transfer, and there issued in this form. It was then precisely the same it would have been if her name had been in- serted in the policy with the written approbation of her husband ; for her incapacity to contract with the insurance company may be considered as removed by the written transfer of the husband. The interest of the wife was manifest. Her husband had her estate and she was dependent on him for support. Reynolds' Life Insurance, 51, 54.' The insurance company paid over the sum agreed upon without question. It is contended, also, that the wife is concluded by the inventory, which is an authentic act, and embraces the amount due upon the policy as a part of the assets of the estate. It cannot conclude the wife because it copies her title at full length, and it may be pre- sumed that she relied upon her title as evidence of her claim when she signed the inventory. It is therefore ordered that the judgment of the lower court be so amended as to reduce the claim of the administratrix from $4,907 to $2,907.62, and from a privilege debt to a debt secured by a tacit mortgage, to be paid out of the proceeds of the slaves after the payment of the general privileges, and to receive its 'pro rata for the residue as an ordinary debt if anything shall come into the hands of the administratrix to distribute among the same. And it is further ordered that the judgment of the lower court be in all other respects affirmed, the administratrix and appellee pay- ing the costs of the appeal. Same Case — On Rehearing. Merrick, C. J. A petition for rehearing has been filed in this case. The main ground relied on is the alleged error of this court in giving too much weight to the testimony of the witness Bartlett. "We have reexamined the testimony. We do not find the testi- mony of the other witnesses irreconcilable with that of this witness. The testimony of the latter, being direct, positive, and unimpeached, must prevail. Rehearing refused. 1 See Lord v. Ball, post, 154, and note. MAINE. LiBBT VS. LiBBY, administrator. (37 Maine, 359. Supreme Court, 1853.) DUtrUndion. — A policy of life insurance for the sole and separate use of the wife vesta, upon her decease before that of her husband, in her child. Upon the death of the wife, fol- lowed by that of her child, before the death of the insured, the insurance vests in the last named as heir at law of the child. Upon the death of the insured thereafter, the is- sue of the husband by a former wife is entitled to such sum as is over and above the pre- mium paid by the deceased for insurance, and interest, without administration. Assumpsit acrainst the defendant as administrator of the estate of Charles Libby. The policy of insurance in question was made " for the sole and separate use of Hannah E. Libby, (wife of said Charles,) and in case of her death before the said Charles, the amount of the said insurance shall be payable to her children for their use." The rest of the case is stated in the opinion of the court. Anderson ^ Harmon, for defendant. Sh&pley ^ Dana, for plaintiflF. Shepley, C. J. Charles Libby, on January 27, 1852, procured a policy of insurance on his own life, payable to his wife, who be- came legally entitled to the henefit of it by the provisions of the statute approved on Aug. 2, 1847, c. 27. Upon her decease, on April 18, 1852, her son and only child, Oscar Libby, became enti- tled to it by inheritance ; and upon his decease on June 11, 1852, his father, Charles Libby, being his heir at law, became entitled to the benefit of it ; and by the common law, the amount payable upon his decease would have constituted a part of his personal es- tate, in which his creditors might have had an interest. It is provided by statute approved on March 21, 1844, c. 114, " whenever upon the death of any person who shall leave a widow and issue, or either, upon whose decease any sum or sums of money shall become due on account of any insurance on his life, obtained and effected by said deceased person, such sum of money, which is over and above the amount of premium paid by said deceased for PISCATAQUIS, 1858. 137 Mitchell 1!. Union Life Insurance Company. such insurance, together with interest on said premium," " shall not make any part of the estate of the deceased," " but the same shall be distributed, if the deceased died intestate, without diminu- tion, as provided in the sections following." By the third section it is provided that the issue shall be entitled to the whole, except the premium and interest thereon, if there be no widow. To bring a case within the provisions of the statute it must be shown that the policy was effected by the deceased person upon his own hfe for an amount payable upon his decease, and that he at the time of his decease was entitled to the benefit of that in- surance, and that he died leaving a widow or issue. No provision is found in the statute requiring that the amount insured should by the policy be made payable to the person whose life is insured. It is sufficient that he was at the time of his de- cease legally entitled to the beneficial interest secured by the pol- icy, and that there has been a compliance with the other require- ments of the statute. Deducting the premium, with interest upon it, to the time of the decease of Charles Libby, the plaintiff will be entitled to the re- mainder. Defendant defaulted. Tennet, Wells, Howakd, and Hathaway, JJ., concurred. IcHABOD W. Mitchell vs. Union Life Insurance Company. (45 Maine, 104. Supreme Court, 1858.) 8eaL — The printed impression of a seal is not a seal ; and aemmpsii is proper upon a policy under such impression. Iftearable interest. — A father has an insurable interest in the life of his minor child. Assumpsit upon a policy on the life of a minor child for the benefit of his father. The policy had a printed impression of a seal upon it. The rest of the case is stated in the opinion of the court. Everett, for plaintiff. Godfrey, for defendants. Appleton, J. By the sixth rule of this court, 37 Maine, 569, • pleas or motions in abatement must be filed within two days after the entry of the action. The motion to dismiss was not filed till 138 SUPREME COURT OF MAINE. Mitchell V. Union Life Insurance Company. the third day, and was not in season, "the entry of a special ap- pearance does not dispense with the rules of court or with obedi- ence thereto. The impression of a seal is not a seal. The contract of insur- ance is not, therefore, a sealed instrument. The action is rightly brought. Wager policies, in England, are prohibited by statute. In this country they have been regarded as against good policy, and by repeated decisions have been declared void. The general principles applicable to life insurance seem to be well settled. The party insuring, when the insurance is effected for his own benefit, must have an interest in the life to be insured. As his future earnings or gains may be indefinitely large, he may insure his own life to an unlimited amount. So he may insure that of his debtor to the extent of his indebtedness. But a father, as such, has no insurable interest, resulting merely from that rela- tion, in the life of a child of full age. He may, however, insure on the life of a child for the benefit of a child. Angell on Fire and Life Insurance, § 298. Bunyon on Life Assurance, 14. But the insurance in the present case was effected by a father upon the life of a minor son, who was about proceeding to Cali- fornia, and to whom he had made large advances. In Lord v. Dall, 12 Mass. 115, it was held that a single woman, dependent upon her brother for her support, had suiHcient interest in his life to entitle her to insure it. The father is entitled to the earnings of his mi- nor child, and may maintain an action for their recovery. If the child be injured, he is entitled to an action per quod servitium ami- sit. He has a pecuniary interest in the life of a minor child which the law will protect and enforce. An insurance, therefore, of the life of such child is not within the rule of law by which wager policies are declared void. Defendants defaulted. Tennet, C. J., Hathaway, May, and Goodenow, JJ., con- curred. Note. — LoomisTT. Eagle Life Ins. Co. post, 175, holds the same doctrine re- specting a father's insurable interest in the life of his minor son. See also Lird V. Dalljpost, 154, and note. KNOX, 1866. 139 Eastabrook v. Union Mutual Life Insurance Company. Joseph H. Eastabrook vs. The Union Mutual Life Insur- ance Company. (54 Maine, 224. Supreme Court, ]866.) Suicide. — A policy conditioned to be void in case the assured die by hia own hand is not avoided by self-destruction in a fit of insanity. The case is stated in the opinion of the court. Thaaher, for defendants. A. S. Bice, for plaintiff. Appleton, C. J. The plaintiff effected an insurance upon the life of his son, Joseph H. Eastahrook, Jr., who in a fit of insanity on the 30th day of July, 1864, committed suicide. In the policy there is an express condition "that in case the said Joseph H. Eastabrook, Jr. ... . shall die by his own hand, or in consequence of a duel, or the violation of any state, national, or provincial law, or by the hands of justice, .... this policy shall be null, void, and of no effect." Is suicide by an insane man in a fit of insanity within the above condition ? Upon this question there has been a great diversity of judicial opinion. In England, the majority of the cijurt of common pleas, in Borradaile v. Hunter, 5 Man. & Gran. (44 E. C. L.) 639, held that a policy containing a proviso that in case " the assured should die by his own hand or by the hands of justice, or in consequence of a duel," was avoided, though the assured at the time of com- mitting the act " was not capable of judging between right and wrong." In Clift v. Schwabe, 3 Man., Gran. & Scott, (54 E. C. L.) 437, the language of the policy was that "every policy effected by a person on his or her own life should be void, if such person should commit suicide or die by duelling or the hands of justice." It was held by the majority of the court that it was immaterial whether the assured at the time of his self-destruction was or was not a responsible moral agent. " It will, however, be observed that the authorities against this decision are very strong. Pollock, C. B., and Wightman, J., dissented from it, and to them may be added Creswell, J., in the court below, and it may be inferred that Tindall, C. J., and Erskine, J., would have done so on the author- ity o? Borradaile v. Hunter ; Alexander, C. B., and Lord Tenter- den, C J., from their decisions at Nisi Prius, in the unreported 140- SUPREME COURT OF MAINE. Eastabrook v. Union Mutual Life Insurance Company. cases cited in the notes to that case ; and perhaps Lord St. Leon- ards, C, who, referring to the principal case, adds in a note " ged quere the decision." Bunyon on Life Assurance, 75. In this country there will be found a similar variety of opinion. In Breas- ted V. The Farmers' Loan and Trust Co. 4 Hill, 74,^ the supreme court of New York held that the words " shall die by his own hand," have reference to" an act-of criminal self-destruction. Tiiis view of the law was sustained upon appeal. S. 0. 4 Selden, 299.^ The supreme court of Massachusetts, in Dean v. American Mutual Life Insurance Co. 4 Allen, 96,^ decided that suicide, committed by a person who understood the nature of the act and intended to take his own life, though committed during insanity, avoids a policy which provides that it shall be void if the assured shall die by his own hand. In this conflict of authority it may not be amiss briefly to examine the question, and to endeavor to determine what con- clusion will best accord with the object of the policy and with the intent of the parties as ascertainable from its language upon the recognized principles of interpretation. An insurance upon life is of comparatively recent date. A cred- itor may insure upon the life of his debtor, or one may insure upon bis own life for the benefit of his family. In no event can the person upon whose life the policy is effected be benefited by his own death. Death, whether by disease, by accident, or the result of insanity, is in each case within the general object of the policy. The terms " suicide " and " dying by one's own hand " are generally used synonomously. Sometimes one form of expression is used and sometimes the other. They have the same meaning. Dying by one's own hand is but another form of expression for suicide. The phrase " die by his own hand " may include all cases of death by the person upon whose life the policy is effected, or it may receive limitations. If limitations, then the inquiry arises as to the extent of those limitations. The authorities concur in this, that the expression does not embrace all cases of death by one's own hand. If the insured kill himself by drinking poison, not being aware that it was poison, or by snapping a loaded pistol, ignorant that it was loaded, or by leaping from a window in the delirium of a fever, it is conceded that he would not die by his own hand within the meaning of the clause under consideration, 1 Post, 341. 3 Post, 343. 3 Post, 195. KNOX, 1866. 141 Eastabrook v. Union Matual Life Insurance Company. though he might literally die by his own hand, that is, by his own act. " It is to be observed," remarks Tindall, C. J., in Borradaile v. Hunter, " that the words of the proviso are the words, not of the assured, but of the insurers, introduced by themselves for the pur- pose of their own exemption and protection from liability ; both in reason and good sense, therefore, no less than upon the acknowl- edged principles of legal construction, they are to be taken most strongly against those who speak the words, and most favorably for the other party. For it is no more than just that if the words are ambiguous, he whose meaning they are intended to express, and not the other party, should suffer by the ambiguity." That they are ambiguous is conceded, for the courts in no case have given them a literal construction. When death is the result of insanity, it is equally the result of disease for which the insane is in no re- spect responsible. It is a well settled physiological principle, "that disturbed intelligence has the same relation to the brain that disor- dered respiration has to the lungs and pleura." Death, then, by an insane suicide, is as much death by disease as though it were death by fever or consumption. Death by accident or mistake, though by the party's own hand, is not*within the condition. Death by disease is provided for by the policy. Insanity is a dis ease. Death, the result of insanity, is death by disease. The in- sane suicide no more dies by his own hand than the suicide by mistake or accident. If the act be not the act of a responsible being, but is the result of any delusion or perversion, whether phys- ical, intellectual, or moral, it is not the act of the man. " If they (the insurers) intended the exception to extend both to the case of felonious self-destruction and self-destruction not felonious, " they ought," observes Tindall, C. J., in Borradaile v. Hunter, " so to have expressed it clearly in the policy ; and that, at all events, if they have left it doubtful on the face of the policy whether it is so confined or not, that doubt ought, in my opinion, to be determined against them ; for it is incumbent on them to bring themselves within the exception, anci, if their meaning re- mains in doubt, they have failed so to do." • The different English life insurance companies (when unwilling to incur the risk of suicidal insanity) have guarded against such risk by language clearly excluding it from the policy. Thus the Equitable has the condition, "if he shall die by his own hand, being 142 SUPREME COURT OF MAINE. Eastabrook v. Union Mutual Life Insurance Company. at the time sane or insane ; " the Eagle, " if he shall die by his own act, whether sane or insane." In the policies of the Solicitors and General Life Assurance, the condition is, if he die by his own act, " whether felonious or not." The policy, in the clause under consideration, refers to death by his own hand, or in consequence of a duel or the violation of any state, national, or provincial law, or by the hands of justice. All the other cases, after the first, involve criminal delinquency. They involve intentional misdoing. They assume criminal intention. They are cases where death occurs in consequence of committing a felony or other violation of law on the part of the insured. There must in all be moral as well as legal responsibility. Noscitur a so- ciis is a familiar maxim in the interpretation of covenants. The other members of the sentence, connected with the verb, " die," imply death as the result of crime committed by a responsible being. The first of these conditions, to which the others refer, and with which they are connected, must equally with the other refer to a felonious death, to the case oi felo de se, not to the case of a death without legal or moral blame, the result of accident, mistake, or disease. The madman who in a fit of delirium commits suicide, as much dies by his own hand as does the individual who accidentally and unintentionally takes his own life. They each die by their own hands, but without moral responsibility or legal blame. One is no more within the conditions of the policy than the other. In such case it should receive the same construction. That a jury would be likely to regard suicide as proof of insanity does not aifect the conclusion. If suicide is to be regarded as evi- dentiary of insanity, as it unquestionably is in most cases, then they generally arrive at correct results. If it is not properly to be so regarded, it may be an argument against a trial by jury, that the tribunal is one which allows itself to be governed by its prejudices rather than by the proofs, but it is none against the construction of the policy, that death by the hands of the insured, whether by accident, mistake, or in a fit of insanity, is to be governed by one and the same rule. Nor does the case of suicide by one insane fall within the dan- ger, to guard against the occurrence of which this condition was inserted. " A policy," observes Maule, J., in Borradaile v. Hun- ter, " by which the sum msured is payable on the death of the per- KNOX, 1866. 143 Eastabrook v. Union Mutual Life Insurance Company. son assured in all events, gives him a pecuniary interest that he should die immediately, rather than at a future time, to the extent of the excess of the value of a present payment over a deferred one, and offers a temptation to self-destruction to that extent. To protect the insurers against the increase of risk arising out of this temptation, is the object for which the condition in question is in- serted." The reason here given assumes or presupposes sanity on the part of the assured. It implies a motive acting upon a sane mind, for sanity in all cases is to be presumed. But in fact there is very slight foundation for any such reasoning. The person whose life is insured never receives money payable after his death. Suicide for the benefit of others is rare, exceptional, and Quixotic. The love of life, the strongest sentiment of our nature, affords rea- sonable security against a danger so remotely probable. An insane man would be little likely to calculate the difference in value be- tween a payment to be made immediately and one indefinitely deferred, and kill himself that some one else might receive the money at an earlier date in consequence of his committing suicide. The evidence affords not the slightest indication that any such motive had any influence in the present case. Where the policy is on the life of a nominee, as in the one under consideration, "the insurance can be no inducement to a criminal act, and may reasonably be construed to cover this as well as every other risk. There is, indeed, no reason why it should not do so ; for the general tables of mortality, which form the basis of the calculations upon which the policy is founded, include this as well as every other cause of death ; so that the particular risk is actually insured against." Bunyon on Life Assurance, 73. But whether these views are correct or not, the defendants had the benefit of instructions in entire conformity with the law as stated by the supreme court of Massachusetts, in Dean v. Am. Mutual Life Insurance Oompany, and the jury have, on the evi- dence, found the facts such as in accordance with the law of that cause would justify their verdict. Motion and exceptions overruled. Walton, Dickeeson, Bakrovfs, Danfoeth, and Tablet, JJ., concurred. Kent, J., dissented. See Nimick v. Mut. Ben. Life Ins. Co., post, 691, and note. MARYLAJSTD. Cathahine Harbison vs. William McConket. (1 Md. Ch. Decisions, 34. High Court of Chancery, March, 1847.) Assignment of life policy. — By the terms of an assignment of a life policy the proceeds of the policy were to be received by the assignee, and in case other securities held by him were insufficient to pay the debts thus secured, to apply said proceeds to the satisfaction of the claims of the assignee. The residue, if an}', was to be paid to the assignor's wife for her sole and separate use. Held, that this constituted such a transfer and delivery as to take from the assignor all power over the policy ; that on the death of the assignor the insurance company had full authority to pay the money to the assignee, without the in- tervention of an administrator; and that the wife's claim to the residue was valid. Thomas P. Harkison, deceased, in March, 1846, effected an insurance upon his Hfe in the National Loan Fund and Life Assur- ance Company, for the sum of $1,000. He afterwards assigned the policy to the defendant, McConkey, to whom he was largely indebted, in aid of certain securities which he then held, and also as a security for additional advances to the assignor at that time made by him. By the terms of the assignment, the proceeds of the policy were to be received by the assignee on the death of the assignor ; and in case the other securities held by him were insuffi- cient for that purpose, to apply said proceeds, or so much thereof as might be necessary, to the satisfaction of his claims against the assignor; the residue to be paid to the wife of the latter, the com- plainant, to her own use, and free from all claims of the creditors of said Harrison, the assignor. A short time previous to his death, Harrison again requested said McConkey not to resort to the policy of insurance until his other securities should be exhausted ; and it appeared from the proceedings that the deceased, though he effected said insurance at the suggestion of McConkey, was partly induced so to do by the desire of securing to his wife, in the event of his death, the sum for which he insured. After Harrison's death, in November, 1846, McConkey received the amount secured by the policy, which latter was delivered to the agent of the company and transmitted to the general agent in New York. McConkey having been nearly paid without resorting to the proceeds of the policy, the same was claimed by the widow of the MARCH, 1847. 145 Harrison v. MoConkey. assignor whose administrator set up a counter claim, and by his answer denied that his intestate made any such assignment as was valid and effectual in law to vest the policy or the proceeds thereof in the complainant. The Chancelloe. I am of opinion, upon the facts proved in this case, that there was such a consummate transfer and delivery of the policy in question as took from the husband the legal power and dominion over it ; that after he had assigned the policy by indorsement and delivery to the defendant, McConkey, for the purposes disclosed in the evidence, there no longer remained to the assignor any authority or control over it ; that the property passed by the indorsation and delivery ; and that upon the death of Har- rison the insurance company had full authority to pay the money to McConkey, the assignee, without the interposition of the admin- istrator of Harrison. This is not like the cases of Pennington v. Patterson, 2 Gill & Johns. 208, and Bradley ^ wife v. Hunt, 5 Gill & Johns. 54, in which the legal power and dominion over the property in dispute remained, notwithstanding the acts done by tlie alleged donors ; but it is the case of a complete and absolute transfer of the entire possession and title, leaving the party making the transfer no power whatever over the subject, and requiring nothing of him or his administrator to perfect it. It is believed that according to the reasoning of the court of appeals, in the cases referred to, that tribunal would hold the right of the wife, in this case, to be good against the administrator of the husband. I shall accordingly so order, but the case must go to the auditor, for the purpose of stating an account, showing the precise amount which may be due the complainant on account of the proceeds of the policy received by McConkey, and what surplus may remain in his hands of the securities assigned him by Thomas P. Harri- son, which will be payable to his administrator. It is therefore ordered, this 29th day of September, 1847, that this cause be, and the same is hereby referred to the auditor, with directions to state an .accourit in conformity with the views hereinbefore expressed, and such other accounts as the nature of the case may require. No appeal was taken from this order. 10 146 SUPREME COURT OF MARYLAND. New York Life Insurance Company v. Flack. The New York Life Insurance Company vs. Geoege W. Flack, trustee of Mary E. Nesbitt. (3 Md. 341. Supreme Court, December, 1852.) Assignment of policy, — A provision in a life policy that the insurance money will be paid to the personal representative of the insured, is designed only to apply to a case where the assured died without having assigned the^jolicy, and is not to be construed as limiting his power over the same. Notice. — In an action upon a life policy which required notice of assignment to be given to the company, without specifying any time, held, that notice two days after, though af- ter the death of the insured, was sufficiently early. Validity of assignment. — A life policy may be assigned, under the act of 1829, ch. 51. Delivery of assignment. — Delivery of an assignment to the attorney of the assignee is suf- ficient to vest the complete title in the latter against every one, except the creditors of the insured. Assumpsit upon a life policy for |5,000 on the life of Jonathan Nesbitt, by the appellant, and assigned by said Nesbitt to the ap- pellee, in trust for Mary E. Nesbitt. The policy, its assignment, and the death of the assured were set out in the declaration. Plea, non assumpsit. The policy, dated the 26th of October, 1849, contained, among others, the following provisions : " And the said company do hereby promise and agree, to and with the said assured, his executors, ad- ministrators, and assigns, well and truly to pay, or cause to be paid, the said sum insured to the said Jonathan Nesbitt's legal represent- atives, within sixty days after due notice and proof of his death." " And it is also understood and agreed to be the true intent and meaning hereof, that if the declaration made by the said J. Nesbitt, and bearing date the 20th of October, 1849, and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case this policy shall be null and void." " N. B. — If assigned, due notice shall be given to the company." The defendant below offered nine prayers. The first, second, fourth, fifth, and ninth are set out in the opinion. The others were as follows : — 8. If the jury find that Nesbitt was seriously ill in June, 1849, and was attended by Dr. Armitage as his medical attendant, and during such illness took much medicine ; and in the spring of 1846 was also seriously and dangerously ill, and was attended by Dr. Mil- ler as his medical attendant, and that the knowledge of these several illnesses was material to be stated to the defendant on Nesbitt's ap- plication for uisurance, then plaintiff is not entitled to recover. DECEMBER, 1852. 147 New York Life Insurance Company v. Flack. 6. If they find that Dr. Armitage had not attended Nesbitt as his medical attendant prior to June, 1849, and that previously Dr. Miller was for some years his usual medical attendant, and that Dr. Knight occasionally prescribed for him in 1849, and that these facts were material to be made known to the defendant, then plain- tiff is not entitled to recover. 7. If they find that the assignment, dated June 3, 1850, was not in fact notified to defendant, or its agent, until after Nesbitt's death, then plaintiff is not entitled to recover. 8. That plaintiff is not entitled to maintain an action in his own name, by virtue of said assignment. Verdict and judgment for plaintifi" below, from which defendant appealed. The rest of the case is stated in the opinion of the court. Wm. Sehley, for the appellant. 1. As to the second prayer respecting facts material to be made known to the company, he cited Lindenau v. Desborough, 15 Eng. C. L. 290 ;i [8 Barn. & C. 586 ;] Buekett v. Williams, 2 Crompt. & Mees. 348 ; Wainwright v. Bland, 1 Mees. & Wels. 32 ; Bufe v. Turner, 1 Eng. C. L. 643 ; [6 Taunt. 338 ;] 12 E. C. L. 215 ; [1 Car. & P. 360 ;] 15 E. C L. 693 ; [5 Bing. 503 ;] 41 Ibid. 159 ; [1 Car. & M. 284.J 2. As to the fourth prayer, which related to the continuance of the disease of dyspepsia, he cited Gteadh v. Ingall, 14 Mees. & Wels. 95. 3. As to the sixth prayer, and to the point that the party 'must disclose his medical adviser, he cited Uverett v. Beshorough, 15 Eng. C. L. 693 ; [5 Bing. 503;] Morrison v. Muspratt, 13 Ibid. 399 ; [4 Bing. 60 ;] Huckman v. Femie, 3 Mees. & Wels. 518. 4. As to the validity of the assignment, and the question of no- tice, Hunter v. Bryson, 5 G. & J. 483 ; State v. Bank of Mary- land, 6 G. & J. 230 ; Welch v. Stewart, 2 Bland, 41 ; Port v. Mackall, 3 Ibid. 498. That the case was not embraced by the act of 1829, ch. 51, Wareham v. Sellers, 9 G. & J. 98 ; Pennington V. aittings, 2 G. & J. 217 ; Scott v. Jones, 4 Clark & Fin. 382 ; Freake v. Qranefeldt, 3 Mylne & Kraig, 500. Such assignments are testamentary. G-rattan v. Appleton, 3 Story, 764. Wm. E. Young ^ Ohas. H. Pitts, for appellee. 1 The edition cited is the late Philadelphia reprint in fiiU, and not the ear- lier condensed edition. 148 SUPREME COURT OF MARYLAND. New Tork Life Insurance Company v. Flack. 1. Where the instructions granted cover those refused,, there will be no reversal. Stokes v. Saltonstall, 13 Peters, 191. Union Bank v. Planters' Bank, 9 G. & J. 439. Mut. Safety Ins. Co. v. Oohen, 3 Gill, 459. 2. A fact to be material must be material in itself, as tending to enhance the risk. 2 Duer on Ins. 396, 522, 580. Ru^gles v. G-eneral Ins. Oo. 4 Mason, 74. Clason v. Smith, 8 Wash. C. C. 156. The nature of the facts is a question of law, and their effect a question of fact. Marshall on Ins. 467. They also cited, re- specting materiality, Fiske v. iV. H. Marine Ins. Co. 15 Pick. 310 ; Tyler V. JStna Fire Ins. Oo. 12 Wend. 607, 515 ; Carter v. Boehm, 3 Burr. 1905 ; Haywood v. Rogers, 4 East, 590. 3. As to the fourth prayer, 2 Marshall on Ins. 769, 770 ; 1 Wm. Black. 812 ; Beall v. Beall, 7 Gill, 233 ; Leopard v. Ches. ^ Ohio Canal Co. 1 Gill, 222 ; Cole v. Sebb, 7 G. & J. 20 ; McBl- derry v. Flannagan, 1 H. «fe G. 808 ; Burt v. Gwinn, 4 H. & J. 507 ; Biggin v. Patapsco Ins. Co. 7 H. & J. 279 ; Bosley v. Ches. Ins. Oo. 8 G. & J. 450 ; Hall v. Hall, 6 G. & J. 886. 4. As to the usual medical attendant, 2 Duer on Ins. 389, 390, 396 ; 3 Mees. & Wels. 618 ; Salterthwaite v. Mut Beneficial Ins. Co. 14 Penn. 393. 6. As to the assignment, Harrison v. McOonkey, 1 Md. Ch. Decisions, 34 ; [ante, 144 ;] Gordon v. Downey, 1 Gill, 41 ; Craw- ford V. Brooke, 4 Gill, 221 ; 2 Marshall on Ins. 800. Le Geand, C. J. The action in this case was founded on a pol- icy oft insurance, underwritten by the appellant on the 26tli day of October, 1849, being an insurance on the life of Jonathan Nes- bitt. On the 5th day of June, 1850, he died, after having, on the 3d of the same month, assigned all interest in the policy to the appellee, " for the sole and separate use of his wife, Mary E. Nes- bitt, her executors, administrators, and assigns." Notice of the assignment was not given to the company until after the death of Nesbitt, but on the day when that event took place. The right of the plaintiff to recover in tliis action is denied on several grounds. Two of them relate to the assignment made on the 3d of June, and the seventh and eighth prayers are designed to present the questions growing out of it. The eighth denies the right of the plaintiff below to recover in his own name by virtue of the assignment ; and the seventh asserts that no recovery can be had, if the jury should find the company was not notified of the DECEMBER, 1852. 149 New York Life Insurance Company v. Flack. assignment until after the death of Nesbitt. If either of these propositions be true, then whatever else there may be in it, there is not sufficient in the case to give the plaintiff a proper standing in court. The eighth prayer is founded upon two grounds : First, that the policy provides the sum of money secured by it shall, in the event of the death of Nesbitt, be paid to his " legal representatives ; " and second, that it was in violation of the testamentary system of the state. Although it be true that there is a provision in the policy bind- ing the company to pay the legal representatives of the insured, yet this obligation must be taken in connection with other portions of the same instrument, otherwise the true meaning of the whole would not be ascertained. The contract is with the " assured, his executors, administrators, and assigns," and at the bottom of the policj' are these words : " N. B. — " If assigned, notice to be given the company." Taking into consideration the whole instrument, our opinion is that the provision to pay to the legal representatives was designed to apply only to a case where the assured died without having previously assigned the policy, and not to be construed as in any sense limiting the power of the party insured to assign. The nota bene at the close of the policy was evidently inserted for the protection of the company. Knowledge of the assignment could only be important to it in one view : to prevent the possibility of its being compelled to pay both the assignee and the personal rep- resentatives of the insured. In fire policies there is generally a condition that any assignment will be void without the assent of the underwriters be first obtained. The reason of this is obvious. A fire policy may be underwritten for one person when it would not be for another. In all such cases, the character for integrity and caution of the -party constitute important considerations. While the character of one person would be a complete guaranty that he -would not fire his own house or goods, the character of his assignee might furnish no such assurance ; and therefore it is that in fire policies the assent of the underwriters is indispensable to the validity of the assignment. No such reason obtains in the case of an insurance on human life. The witness, Wm. H. Young, Esq., testifies that he prepared the assignment ; and although the appellee was not present at th^.. 150 SUPREME COURT OF MARYLAND. New York Life Insurance Company v. Flack. time, he had been previously informed of the intention to execute such an assignment, and that he agreed to act as trustee ; that after the execution of the instrument it was delivered to witness, who placed it in a drawer in the house of Nesbitt, which was .under the control of witness ; that he prepared a notice of the fact of assignment to be delivered to the company, and was under the belief it had been delivered, untjl, on the day of the death of Nes- bitt, he found such not to be the case, when he immediately caused the notice to be given. "We consider this a sufficient compliance with the requirement of the pohcy. It does not specify any par- ticular time wjthin which the notice is to be given, and we think two days sufficiently early, although after the death of the assured. The witness testifies he considered himself as representing the appellant. There is no pretence of fraud in the assignment, and we consider the delivery to Young a sufficient delivery to vest title in the assignee. We consider the assignment as authorized by the act of 1829, chapter 61, the policy being but a chose in action for the payment of money. All contracts for the payment of monej', whether ex- press or implied, are within the purview of that act. Crawford v. Brooke, 4 Gill, 214. G-ordon v. Downey, 1 Gill, 41. The deliv- ery of the assignment to Young as the representative of the ap- pellee, was a complete and absolute surrender of all legal power and dominion over the policy, and as such, was good against all but the creditors of the assignor, and none such are before us, and for aught we can see there were none. 2 Gill & Johns. 208. 5 Gill & Johns. 54. 1 Md. Chanceiy Decisions, 34. For these reasons we are of opinion the county court properly rejected the seventh and eighth prayers of the appellant. The appellant offered in all nine prayers to the court below, some of which were granted and some rejected. We have said we concur with them in the propriety of the rejection of the seventh and eighth prayers. All the others were founded on the truthfulness or falsehood of the declaration of the insured at the time he answered the interrogatories propounded to him by the company, and the evidence, aliunde his declaration, touching the condition of his health. It appears from the evidence in the cause that the deceased had been applied to by the agent of another insurance company, and, at his solicitation, underwent an examination by the physician, who DECEMBER, 1852. 161 New York Life Insurance Company v. Plack. declined reporting favorably on his case because his pulse was two or three beats higher than his company would take, and who said he could not recommend the life, and suggested that the papers be not sent on to his company, (which was located in New Jersey,) and that he should not be required to pass an opinion on the life, as it might injure Mr. Nesbitt if he applied to another company. The application had been filled up and was ready to be sent on, but the opinion of the physician prevented it. All persons applying for insurance by the appellant are required to ansvver certain ques- tions, and a failure to answer them honestly and correctly deprives them of all advantages derivable from the policy. The fourteenth interrogatory propounded to Nesbitt was in these words : " Has a proposal been made for insuring the life of said party (Nesbitt) at any other office ? and if so, state whether it was accepted or de- clined? " To this question Nesbitt answered " No." On the testimony the appellant, by its second prayer, asked the court — which it refused to do — to instruct the jury, if they should find fi'om the evidence that Nesbitt, prior to the application to the appellant, had filled up an application to another company with intent to obtain a policy of insurance from said company in case such application should be accepted; and that the applicant was examined by tlie medical examiner of said company, and that it was the purpose and intention of said Nesbitt to prosecute his ap- plication in case he should be recommended by said medical exam- iner as a person proper to be insured by the company ; and shall further find that said Jonathan Nesbitt was rejected on such exam- ination by said Dr. CoUifls, and the said Nesbitt thereupon with- drew his papers from the agent of the company ; and shall further find, that on his application to the appellant for insurance he did not disclose the fact that he had been so examined and rejected, and that it was a material fact that ought to have been made known to the appellant, then the appellee was not entitled to recover. Whether the facts set out in the prayer amounted to n proposal it is not important, in the view we have of the case, to inquire. The prayer rests entirely on the falsehood of the declaration of Nesbitt, and the court, by giving the first and ninth prayers offered by the appellant, clearly put the question before the jury, and gave to the company all the advantage to which it was entitled. The" first instruction informed the jury that if they should find " the declaration made by the said Jonathan Nesbitt, bearing date the 152 SUPREME COURT OF MARYLAND. New York Life Insurance Company v. Flack. 20th day of October, 1849, was in any material respect untrue, then the plaintiff is (was) not entitled to recover in this case." And the ninth prayer told them if they should find from the evi- dence " that prior to the making of the proposal of the 20th day of October, 1849, a proposal had been made in August, 1849, by the said Jonathan Nesbitt for the insurance of his life for $5,000 at the Mutual Benefit Insurance Company of New Jersey, then the plaintiff" was not entitled to recover. These two instructions clearly submitted the truth or falsity of the answer of Nesbitt to the jury. The first distinctly told them if they should find his declaration in ani/ material respect untrue, the appellant was not entitled to recover ; and the ninth as clearly informed them if they should find he had made a prior proposal to another company that there could be no recovery. In the case of the Mutual Safety Insurance Company v. Cohen, 3 Gill, 482, the court say, " some of the instructions which were asked for and refused might have been granted ; but it is believed that the in- struction given covers the whole ground, and therefore, for the rejection of them the judgment ought not to be reversed." See, also, 13 Peters, 191. We do not therefore deem it necessary to inquire whether the second prayer of the appellant, if it were the only prayer in the case, ought to have been granted. It is clear all tlie advantage it proposed to the company was secured by the first and ninth prayers, which were granted by the court, and therefore, in the language of the court in 8 Gill, for its rejection the judgment ought not to be reversed. For the same reasons we are of opinion* that the [decision of the] county court ought not to be reversed because of its rejection of the fourth and sixth prayers. It appeared from the evidence that Nes- bitt was liable to attacks of dyspepsia, and that he had been attended at different periods by different physicians. ' The fourth prayer asked the court to instruct the jury that if they should find that Nesbitt " at the time of his application was predisposed to the disease of dyspepsia to such a degree as to seriously affect his health, and to such a degree as to produce bodily infirmity" then the plaintiff was not entitled to recover. This prayer, as a distinct proposition, we are of opinion ought to have been granted, for we cannot see how ■ a person can be sound and healthy who is predisposed to dyspepsia to such a degree as to produce bodily infirmity ; but the company had the benefit of this instruction in the first and fifth, which were DECEMBER, 1852. 153 New York Life Insurance Company v. Flack. granted. The latter told the jury, if they should find he " was not in good health at the time of the application," there could be no recovery ; and the first said, if his answers were erroneous in arw/ material respect, the action must be defeated. The tenth inter- rogatory propounded to Nesbitt was in these words : " Is the party subject or predisposed to any disease or bodily infirmity ? " If, therefore, he was, in point of fact, predisposed to dyspepsia and the proof showed it, the first instruction told the jury the plaintiff was not entitled to recover. Whatever may be our views of the foree of the testimony, it is not for us to correct the verdict of the jury ; that, more properly, was for the court below, by granting a new trial, if they believed the evidence called for a different finding. The foregoing reasons dispose, also, of the sixth prayer. Judgment affirmed. EccLESTON, J., dissented. Note. — The situation of the parties to this cause, by the verdict for the plaintifi' below, prevented the raising of questions in the supreme court relative to the instructions asked by the insurance company, which would have materi- ally changed the phase of the case. The ninth instruction asked for by the company, and which was granted, was to the effect that if the jury should find that prior to the proposal on which the policy in question issued, the insured had made a proposal to another company, (referring to .the examination by Dr. CoUins, and his advice that the proposal should not be sent on to his company,) and such proposal was rejected, plaintiff could not recover. It is very clear that the jury would not have been warranted in saying that the facts, if found as stated, amounted to a proposal to insure. That would be a question of law and not of fact. But this instruction having been asked for by the insurance company and granted, they were, of course, not in a position to make the ob- jection. Again : The court below was asked to instruct the jury that if they found this matter of the imperfect proposal to be material to be stated, &c. The par- ticular prayer — the second — in which this was contained was rejected, and its rejection was sustained on the ground that it was substantially covered by the first and ninth prayers. This ruling of the court of errors prevented an im- portant question from being raised", to wit : Was the materiality of the alleged proposal a question of law, or a question of fact ? At any rate the court failed to notice the point. This question was directly raised and ably discussed on principle and au- thority, and decided, in the recent case of Campbell v. New England Mut. Life Ins. Co. post, 229. As to the question of assignment, see Mutual Protection Co. v. Hamilton, post, 709 ; Pomeroy v. Manhattan Life Ins. Co. ante, 96. MASSACHUSETTS. Nancy Lord vg. William Dall. (12 Mass. 115. Supreme Court, March, 1815.) The contract of life, insurance is legal. Insurable interest. — The plaintiff, a young female without property, was and had been for several years supported and educated at the expense of her brother, who stood towaids her in loco parentis. In an action upon a life policy effected by him for her benefit, AeW, that she had an insurable interest in his life. Illegal traffic engaged in by the insured, and not being prohibited by the policy, will not pre- judice the rights of the plaintiff, for whose benefit the insurance was effected, if she did not participate in it, and knew nothing of it. Assumpsit on a policy of assurance made for -f 5,000 in favor of the plaintiff, upon the life of Jabez Lord, her brother, aged thirty- three years, bound on a voyage to South America, or any other place he might proceed to from Boston, commencing the risk on the 16th of December, 1809, at noon, and to continue until the 16th of July, 1810, at noon, for a premium of seven per cent At the trial of the cause upon the general issue, at the last No- vember term, before the chief justice, it vv^as proved that the said Jabez had died on the coast of Africa before the expiration of the time for which his life was insui'ed, and not from any of the causes excepted from the risk. It was also proved that the said Jabez sailed from Boston, after the making of the policy, to Fayal, as supercargo of a vessel called the Mount .^Etna, at which place she was converted into a Portu- guese vessel called the Vincidero, still belonging to the former owners, but sailing with Portuguese papers and under Portuguese colors. From Fayal the vessel sailed to Madeira, and from thence to the coast of Africa, for the purpose of procuring slaves, with in- tention to carry them to South America ; the said Jabez acting as supercargo, and* having purchased some of the slaves himself. The objections made at the trial to the plaintifTs recovery were, 1. That she had no insurable interest in the life of the said Jabez. But it being in evidence that she was a person of no prop- erty at the time, depending altogether upon the said Jabez for her support and education, and he having for several years paid her MARCH, 1815; 155 Lord V. pall. board, provided her with clothing, and paid for her education, all which he continued to do at the time the policy was effected ; this objection was overruled, but reserved for the consideration of the whole court. 2. That there was a concealment of the intention of the said Jabez to go to the coast of Africa. This was left to the jury witli directions, if they were satisfied that there had been such conceal- ment, to find for the defendant. 3. The third objection was that the policy was void, it being to secure the life of the said Jabez while'in the execution of an un- lawful enterprise. It was not made certain whether the said Jabez originally de- signed to go to the coast of Africa, or whether that voyage was conceived after the vessel left Boston. The jury were instructed that if they believed that he had such intention originally, and knew that the vessel was so bound, there could he no doubt, from the evidence in the case, that such intention and knowledge were concealed. The question, therefore, which the judge states to be reserved for the consideration of this objection, was whether the actual going upon a voyage for the purposes aforesaid by the party whose life is insured, avoids the policy. The said Jabez Lord gave his note for the premium, and there was no evidence that the plaintiff knew where the said Jabez was bound. If the court should be of opinion that the plaintiff had not an in- surable interest, or that the policy was void on account of the ille- .gality of the voyage, the verdict returned for the plaintiff was to be set aside, and she was to become nonsuit ; otherwise, judgment was to be rendered on the verdict. Prescott ^ Muhbard, for the plaintiff. lAvermore ^ W. Sullivan, for the defendant. Parker, C. J. It has been made a question in the argument whether a policy of assurance upon a life is a contract which can be enforced by the laws of this state ; the law of England, as it is suggested, applicable to such contracts never having been adopted and practised upon in this country. It is true that no precedent has keen produced from our own records of an action upon a policy of this nature. But whether this has happened from the infrequency of disputes which haye arisen, it being a subject of much less doubt and difficulty than 156 SUPREME COURT OF MASSACHUSETTS. Lord !). Dall. marine insurances, or from the infrequency of such contracts, it is not possible for us to decide. By the common principles of law, however, all contracts fairly made, upon a valuable consideration, which infringe no law and are not repugnant to the general policy of the laws, or to good morals, are valid, and may be enforced, or damages recovered for the breach of them. It seems that these insurances are not favored in any of tlie commercial nations of Europe except England, several of them having expressly forbidden them ; for what reasons, however, does not appear unless the reason given in France is the prevailing one, viz., "that it is indecorous to set a price upon the life of a man, and especially a freeman, which, as they say, is above all price." It is not a little singular that such a reason should be advanced for prohibiting these policies in France, where freedom has never been known to exist, and that it never should have been thought of in England, which for several centuries has been the country of es- tablished and regulated liberty. This is a contract fairly made ; the premium is a sufficient con- sideration ; there is nothing on the face of it which leads to the violation of law, nor anything objectionable on the score of policy or morals. It must then be valid to support an action, until some- thing is shown by the party refusing to perform it in excuse of his non-performance. It is said that, being a contract of assurance, the law on the sub- ject of marine insurance is applicable to it ; and therefore, unless the assured had an interest in the subject matter insured, he is not entitled to his action. >■ This position we agree to ; for otherwise it would be a mere wager policy, which we think would be contrary to the general policy of our laws, and therefore void. Had then the plaintiff an interest in the life of her brother which was insured ? The report states the facts upon which that interest was sup- posed at the trial to exist. The plaintiff, a young female without property, was and had been for several years supported and edu- cated at the expense of her brother, who stood towards her in loco parentis. Nothing could show a stronger affection of a brother to- wards his sister, than that hte should be willing to give so large a sum to secure her against the contingency of his death, which would otherwise have left her in absolute want. One per cent, per month upon $5,000, taken on the life of a man of thirty-three MARCH, 1815. 157 Lord V. Dall. years of age, in good health at the time, was a sufficient induce- ment to the underwriter to take at least common chances, and proved the strong disposition of the brother to secure his sister against the melancholy consequence to her of his death. In com- mon understanding no one would hesitate to say that in the life of such a brother the sister had an interest ; and few would limit that interest to the sum of five thousand dollars. But it is said the interest must be a pecuniary, legal interest, to make the contract valid ; one that can be noticed and protected by the law : such as the interest which a creditor has in the life of his debtor, a child in that of his parent, &c; The former case, indeed, of the creditor would have no room for doubt. But with respect to a child, for whose benefit a policy may be efiected on the life of the parent, the interest, except the insurable one which may result from the legal obligation of the parent to save the child from pub- lic charity, is as precarious as that of a sister in the life of an af- fectionate brother. For if the brother may withdraw all support, so may the father, except as before stated. And yet a policy ef- fected by a child upon the life of a father, who depended on some fund terminable by his death to support the child, would never be questioned ; although much more should be secured than the legal interest which the child had in the protection of his father. In- deed we are well satisfied that the interest of the plaintiff' in the life of her brother is of a nature to entitle her to insure it. Nor can it be easily discerned why the underwriters should make this a question after a loss has taken place, when it does not appear that any doubts existed when the contract was made, although the sa,me subject was then in their contemplation. As to the other objection, that the life insured was employed during the continuance of the contract in an illegal traffic, we do not think it can prevail to the prejudice of the plaintiff", who did not participate in the illegal employment, and indeed does not ap- pear to have known of it. The underwriters insure the life of Jabez Lord, for the benefit of the plaintiff, for the term of seven months ; and he is described in the policy as being about thirty-three years of age, " and bound on a voyage to South America or elsewhere, and any other place he may proceed to fi-om Boston." This gave the utmost latitude to Jabez Lord to go where he pleased at all times, and imposed no restriction whatever upon him as to the place where he should ex- 158 SUPREME COURT OF MASSACHUSETTS. Lord V. Dall. ercise his industry and enterprise. Possibly if he secretly intended, at the time the policy was subscribed, to visit some portion of the globe where his life would be exposed to more than common haz- ard, and kept that intention concealed from the underwriters, had he been interested himself in the policy, or had his sister been privy to his intentions, and aided him in concealing them, such conduct might have been considered in the light of a fraudulent Concealment ; and if the fact were material, the contract might have been avoided. But the jury have found that there was no such concealment, and the objection now rests' entirely upon the supposed illegality of the enterprise in which he was engaged. It is a sufficient answer to this objection, that whatever the law may be as to an insurance upon an illicit voyage, between the par- ties to the contract, the present plaintiff being ignorant of any in- tended violation of the law, ought not to be affected by such ille- gality. Had the policy been effected for Jabez Lord himself, it might be questionable whether, as the underwriters had excepted no particular employment in which he might be engaged, and no cause of death but suicide and forfeiture of life for crime, his en- gagement in any traffic prohibited by law would have discharged their liability. If it would, it must be only because it might be thought just and legal to discourage contracts which might tend to uphold enterprises forbidden by the laws. It would be difficult, however, to maintain that the executors of a man whose life was insured for the benefit of his children, should be deprived of their right to enforce the contract because he had pursued a course of smuggling or counterfeiting, neither of these acts being excepted in the policy, and the party having died within the time from a cause which was clearly at the risk of the under- writers. A policy made for the purpose of enabling a man to commit crimes would undoubtedly be void. But one honestly made would seem not to be affected by the moral conduct of the party who had procured it. Perceiving nothing in this contract unfriendly to the morals or interests of the community, and no knowledge of an illegal inten- tion being imputed to the plaintiff, we see no reason for setting aside the verdict. Judgment will therefore be entered upon it. Note. — The above is the eaxliest reported case upon the subject of life insur- ance in this country ; and it has been followed as the leading authority by aU the American courts, at least upon the first two points which it decides. MARCH, 1815. 159 Lord V. Dall. It will be observed that the court, though accepting the general proposition that an insurable interest is necessary, held that a definite pecuniary interest was not required. And this is the general doctrine. The supreme court of New Jersey, in Trenton Mut. Life Ins. Co. v. Johnson,post, 327, went still further, and held with the Irish courts (2 Dru. & War. 120; Cook & Al. 182; Longf & Town. 54 ; 1 Hayes, 536) that at common law it was not necessary to prove an insurable interest of any nature. And the court went on to say that, even grants ino' it necessary to prove an insurable interest, "it is sufficient if an indirect ad- vantage may result to the plaintiff from his life," and cited Lord v. Dall. There is some conflict both in England and in this country whether an insur able interest is necessary or not, in the absence of statute. The early case of Godsall v. Boldero, 9 East, 72, (1807,) held that where the interest in the life of the insured had been extinguished by payment of the debt, there could be no damnification, and no action could be maintained ; the contract of life insurance being, like that of fire and marine insurance, one of indemnity. And the whole question turns on this . point': Is the life policy a contract of indemnity ? If not, then in the absence of statute it would seem unnecessary to show an insur- able interest in the life. The more recent English case of Dalhy v. The India and London Life Assurance Co. 15 Com. B. 364, (1854,) in the Exchequer Chamber, held, and settled the point in England, that it was immaterial that the interest had ceased before the death of the assured ; that the contract of life insurance was not one of indemnity ; and stated, as the logical sequence, that at common law wager policies were valid, citing 3 Taunt. 513j and 2 N. R. 269. And the court said that Oodsall v. Boldero was no longer considered as law in England. The same doctrine, on similar facts, is held in Rawls v. Tlie American Life Ins. Co., post, 549, in the supreme court of New York, and this case was affirmed in the court of appeals of that state. Post, 558. But the question has become of slight importance, whether at common law an insurable interest is necessary, as in most of the states there are statutes forbidding wager policies. The question is one of moment where no such statutes prevail. The argument from public policy, the main one urged against insurances without interest, is criticised in the New Jersey case of Trenton Mut. Ins. Co. v. John- son, post, 327. See also Mowry v. Home Ins. Co., post, 698. Upon the more important question as to whether the life policy is a contract of indemnity, — a question which becomes still more pertinent where wager policies are illegal by statute, — the American authorities, if we except, perhaps, the New York case of Mutual Life Ins. Co. v. T^a^er, post, 483, and the Con- necticut case of Bevin v. Conn. Mut. Life Ins. Co. ante, 19, are uniform that it is not such a contract. See note to Mutual Life Ins. Co. v. Wager, post, 496. And the Connecticut case may not be considered an exception to the rule ; for though the court say that life insurance is a contract of indemnity, they hold that where the interest is indefinite, the sum insured, in the absence of fraud, is the agreed value of the policy and the measure of recovery. See note to the case, ante, 27. Lea, J., in Kennedy v. N. Y. Life Ins. Co.,anle, 123, contends, against the opinion of the court, that where the interest is definite and determinable, as in that case, such interest should be the measure of recovery, adopting the views of Mr. PiiilHps, who in his excellent work on Insurance, § 1216, (5th ed.) says : " In a policy in favor of a creditor on the life of a debtor as a security for a 160 SUPREME COURT OF MASSACHUSETTS. Lord V. Dall. debt of a fixed amount, the amount of the msurance may be estimated." But the authority of tliis is the St. of 14 (leo. III. ch. 48, § 3. The better opinion, at least in America, seems to be that, in all cases in which the insurance is not made expressly subject to interest, and perhaps without even this qualification, the policy is valued at the sum insm-ed. See, upon this point, and as to insur- able interest generally, the following American cases : Rawls v. American Life Ins. Co. post, 558, 549 ; St. John v. American Life Ins. Co. post, 359 ; Valion V. National, Sj-c. Assurance Co. post, 409, 436 ; Robert v. New England Mut. Life Ins. Co. post, 634; Campbell v.*New England Mut. Life Ins. Co. pnsf, 229 ; ProL'ident Life Ins. Co. v. Baum, ante, 108 ; Mitchell v. Union Life Ins. Co. ante, 137 ; Miller v. Eagle Life Ins. Co. post, 375 ; Hoyt v. New York Life, Ins. Co. post, i97 ; Ruse v. Mutual Ben. Life Ins. Co. post,i67 ; Morrell v. Trenton Mut. Life Ins. Co. post, 1 70 ; Loomis v. Eagle Life and H. Ins. C'w. post,n5\ Succession of Risley, ante, 118. In Law V. London Indisputable Life Ins. Co. 1 Kay & Johns. 223, (1855,) the plaintiff' had purchased fi-om his son a contingent legaoy of £3,000, bequeathed to him in case he should attain the age of thirty years. When the son lacked twenty months of that age, the plaintiff" applied to the defendant to insure the event of his reaching the said age in the sum of £2,999. The company's agent told the plaintiff" that, according to the practice of the office, he must insure two years of his son's life. This he did at an annual premium calculated without reference to the particular risk to be covered. After both premiums had been paid the son attained the age of thirty, and the father received the legacy. The son then died within the two years. Held, that the whole sum insured might be recovered. In this case Wood, V. C, considers Oodsall v. Boldero overruled by Dalby V. India, ^c. Ins. Co. supra, which latter, he says, is now the acknowledged au- thority. He gives the following strong reasons against holding the life policy a contract of indemnity : " The [life] policy never refers to the reason for eff'ect- ing it. It is simply a contract that, in consideration of a certain annual pay- ment, the company will pay, at a future time, a fixed sum, calculated by them with reference to the value of the premiums which are to be paid, in order to purchase the postponed payment. Whatever event may happen meanwhile, it is a matter of indifference to the company. They do not found their calcula- tions upon that, but simply upon the probabihties of human life, and they get paid the full value of that calculation. On what principle can it be said that, if some one else satisfies the risk on account of which the policy may have been eff'ected, the company should be released from their contract ? The com- pany would be in the same position whether the object of the insured were ac- complished or not ; whether he were in a better or a worse condition, that would have no efi"ect upon the contract with the company, which was simply calculated upon the value of the life which they had to insure." In Angell on Fire and Life Insurance, § 298, it is stated that a husband has not an insurable interest in the life of his wife, citing Dowd. 19 ; Reed v. ■ Royal Exchange Ass. Co. Peake, Add. Gas. 70. See, also. Half ord v. Kymer, 10 Barn. & 0. 724, (1830,) to the same eff"ect. But this cannot be the law now. See Loomis \. Life and H. Ins. Co. post, lib; Forbes v. American Mut. Life Ins. Co. post, 191. SEPTEMBER, 1850. 101 Vose V. Eagle Life and Health Insurance Company. An assignee need not have an interest in the life assured ; it is sufficient that the assignor had an insurable interest. St. John v. American Mut. Life Ins. Co. post, 359, 372. See also Stevens v- Warren, post, 299 and note. Henry Vose vs. The Eagle Life and Health Insueancb Company. (6 Cush. 42. Supreme Court, September, 1850.) Concealment. — It is the duty of the insured to disclose all material facts within his knowl- edge; and the concealment of a material fact, when a general question is put by the in- surers which would elicit that fact, will vitiate the policy whether the statement becomes a warranty or not. Ignorance as to true state of health. — It is immaterial that the insured may not know that he is afflicted with a disease which is material to the risk. If he is so afflicted, and the fact is not stated, the policy is vitiated. And where the insured stated that he was suffer- ing from general debility, the fact being that he was actually m consumption, and he had been aware of the symptoms for some months, and they were sufficient to indicate the nature of the disease, though in fact he did not know that he had consumption; held, that the policy, which was conditioned to be null in case of a concealment of any material fact, was avoided. Knowledge of the company's agent as to the health of the insured will not affect the insurer. The facts are stated in the opinion, with the exception of the certificate of the examining physician, which was as follows : " I herehy certify that I have examined George F. Pease, [the insured.] The organs of his chest give no indication ■ of organic disease, the air passes through every part of his lungs freely. His physical appearance is good, and has no appearance of chronic pre- disposition. I consider him a good subject for insurance." H. Vose, for himself. Upon the subject of warranty he cited Jolly v. Baltimore Equi- table Society, 1 Har. & G. 295 ; Fanners' Ins. ^ Loan Co. v. Sny- der, 16 Wend. 481 ; Houghton v. Manufacturers'' Ins. Co. 8 Met. 114 ; Chitty Cont. 69. Answers to be construed together, Hesse v. Stevenson, 3 B. & P. 565 ; Nind v. Marshall, 1 Brod. & B. 319 ; Kane v. Hood, 13 Pick. 281 ; Sweet v. Brown, 12 Met. 175. Concealment, 1 Phil. Ins. 241-253, [§§ 524 et seq., 5th ed. ;j Green v. Merchants' Ins. Co. 10 Pick. 402 ; Staph. N. P. 2145- 2147 ; CaHer v. Boehm, 3 Burr. 1905. Company chargeable with knowledge of agent. Story Ag. § 140 ; McEwen v. Montgomery Ins. Co. 5 Hill, 101. W. Rutherford ^ H. Morris, for the defendants. 11 162 SUPREME COURT OF MASSACHUSETTS. Vose V. Eagle Life and Health Insurance Company. 1. As to warranty, Routledge v. JBurrell, 1 H. Bl. 254 ; Wors- ley V. Wood, 6 T. R. 710 ; Duncan v. Sun Fire Ins. Co. 6 Wend. 488 ; Snyder v. Farmers' Ins. ^ Loan Go. 13 Wend. 92 ; Moherts V. Qh&rtango County Mutual Ins. Co. 3 Hill, 501 ; Burritt v. Saratoga County Mutual Fire Ins. Co. 5 Hill, 188 ; Jennings V. Chenango County Mutual Ins. Co. 2 Denio, 75 ; Murdock V. Chenango County Mutual JJns. Co. 2 Comst. 210 ; Davis v. Rainsford, 17 Mass. 207 j Blaney v. Bice, 20 Pick. 62; Me- Goun V. Lapham, 21 Pick. 135 ; Bryant v. Ocean Ins. Co. 22 Pick. 200, 204; Houghton v. Manufacturers' Mutual Fire Ins. Co. 8 Met. 114, 120 ; Clark v. Manufacturers' Ins. Co. 8 How. 235. 2. The parties by their own express agreement have made the policy and application a warranty of the truth of the answers. Lothian v. Henderson, 3 B. & P. 499. Snyder v. Farmers' Ins. ^ Loan Co. 13 Wend. 92. Jennings v. Chenango County Mutual Ins. Co. 2 Denio, 75. 3. The answers contained in the application, regarded as mere representations, avoid the policy, concerning as they do material facts, and not being substantially true nor made in good faith, both of which requisites must concur in order to support the policy. McDowall V. Fraser, Doug. 260. Lynch v. Dunsford, 14 East, 494. Vandenheuvel v. United Ins. Co. 2 Johns. Cas. 127. Vanden- heupel V. Church, 2 Johns. Cas. 173, n. Stetson v. Massachusetts Mutual Fire Ins. Co. 4 Mass. 330, 337. Hoyt v. Cfilman, 8 Mass. 336. Curry v. Commonwealth Ins. Co. 10 Pick. 535. Bryant v. Ocean Ins. Co. 22 Pick. 200. Kohne v. Ins. Co. 1 Wash. C. C. 158. Baxter v. iV. F. Ins. Co. 3 Mason, 96. Carpenter v. Amer- ican Ins. Co. 1 Story, 57 ; Columbian Ins. Co. v. Lawrence, 2 Peters, 25. 4. Evidence that the defendants' agent knew, or had reasonable cause to believe, that the insured was laboring under a pulmonary disease, cannot be admitted to control or vary the written contract of the parties. Higginson v. Dall, 13 Mass. 96. Wiggin v. Board- man, 14 Mass. 12. Parks v. Q-eneral Interest Assurance Co. 5 Pick. 34. Jennings v. Chenango County Mutual Ins. Co. 2 Denio, 75. Atherton v. Brown, 14 Mass. 152. Weston v. Ernes, 1 Taunt. 115. Flinn v. Tohin, 1 Mood. & Ma. 367. Vandervoort v. Colum- bian Ins. Co. 3 Johns. Cas. 137. Oheriot v. Barker, 2 Johns. 346 Loriny v. Proctor^ 13 Shcp. (26 Maine) 18. SEPTEMBER, 1850. 163 Vose V. Eagle Life and Health Insurance Company. Fletcher, J. Insurance on, life was formerly held to be un- lawful, and was forbidden in some foreign countries by particular enactments, as being repugnant to good morals and opening a door to abuses. But a very different view is taken of the subject at the present time. Life insurance has now become a very common and a very extensive business, and is regarded as liighly beneficial to the community. The usual mode of proceeding to effect an insurance upon a life is for the party wishing to insure to procure at the office of the in- surers a printed form of proposal which is to be filled up by him. This form in general contains a large number of interrogatories, the answers to which are to be written upon the blanks left for the purpose. This was the course of proceeding in the present case, and several of the interrogatories and answers thereto are given in the statement. This proposal or declaration, when forming a part of the policy, has been held to amount to a condition of warranty which must be strictly true or complied with, and upon the truth of which, whether a misstatement be intentional or not, the whole instrument depends. The party effecting an insurance cannot be too cautious, therefore, in ascertaining the real state of the facts alleged in his declaration. In an early case where the warranty was that the person "fcrhose life was to be insured was in good health at the time of making the policy, it was held that the warranty was to be construed in a lib- eral sense as regarded the insured, and was not to be understood to import that he was perfectly free from the seeds of disorder. Though the insured may by accident be afflicted with a particular infirmity, if his life is in fact a good one, and he is in a reasonably good state of health so that his life may be insured on the common terms applicable to a person of his age and condition, the party in- suring will have a right to recover. Hoss v. Bradshaw, 1 W. Bl. 312. 2 Marsh, on Ins. 773. The warranties in policies now issued by insurers are of a much more specific nature than that contained in the above-mentioned case. In the present case the warranties are of a very particular and specific character, namely, whether the insured had been afflicted with certain specified disorders, or was at the time afflicted with any disease or disorder. But where there is no warranty, an untrue allegation of a material fact, or a concealment of a material fact, will avoid the policy, though such allegation or concealment be the result of accident or negligence and not of design. 164 SUPREME COURT OP MASSACHUSETTS. Vose V. Eagle Life and Health Insurance Company. It is the duty of the insured to disclose all material facts within his knowledge. Although specific questions applicable to all men are proposed by the insurers, yet there may be particular circum- stances affecting the individual to be insured which are not likely to be known to the insurers ; and the concealment of a material fact when a general question is put by the insurers at the time of effecting the policy, which would elicit that fact, will vitiate the policy. Applying these principles of law to the present case, and the conclusion is inevitable that the plaintiff is not entitled to recover. Upon the facts in the case it is not important whether the proposal or application is considered as a warranty or representation. As a warranty it was so manifestly untrue, and as a representation there was manifestly so material a misrepresentation, that in either view the pohcy is invalid. The fact is established that at the time of making the proposal and issuing the policy the insured was rapidly declining in a con- firmed consumption, and had been so declining for five months previous, and continued to live but about two months after this time. Yet in answer to the tenth inten'ogatory, the insured ex- pressly denied that he or any o,f his family had been afflicted with pulmonary complaints, consumption, or spitting of blood. In answer to the seventeenth interrogatory, the insured said that he could not say that he was afflicted with any disease or disorder. It is immaterial that the insured did not suppose himself in a consumption ; the fact was so, and the statement was manifestly contrary to the fact, which was a most material and conclusive fact. The fact of the general debility of the system, stated by the insured, was not important in the manner in which it was stated ; as it might arise from a variety of causes not materially affecting the risk, and would not, therefore, by any means give the insurers the information wanted. The insured was asked directly whether he was at the time affected with any disease or disorder, and what ; to which he an- swered that lie could not say that he was afflicted with any disease or disorder ; but he could have stated the symptoms of consump- tion which he had, and which he knew he had, and which he had had for five months previous, and which were certainly most mate- rial and important to be known by the insurers. It is believed that omissions or concealments less important than this, and with- SEPTEMBER, 1850. 165 Vose V. Eagle Life and Health Insurance Company. out any intentional fraud, have been held to avoid policies upon life. But it is not necessary to make this any part of the ground of the decision in this case ; as the answer to the tenth interroga- tory is so manifestly and most materially untrue, that whether re- garded as a warranty or a representation it must avoid this policy. The knowledge which the award finds that the defendants' agent had in regard to the situation of the insured cannot be mate- rial. The agent did not and could not make the contract. He received the apphcation and forwarded it to the directors of the company at their place of business, and the contract and policy were there made and signed by the ofBcers of the company wholly upon the basis of the application, which is expressly declared both in the application itself and in the policy, to form a part of the policy. Both the application and policy are particularly explicit and strong in this respect. It is further set out and declared in the application signed by the insured that if any fraudulent or untrue allegation, misrepre- sentation, or concealment is contained in the proposal, all moneys which had been or might be paid on account of such assurance shall be forfeited to the said company, and the policy shall be void. The insured further declared in his proposal, that he was aware that any untrue or fraudulent allegation, misrepresentation, or con- cealment made in effecting the proposed insurance, would render the policy void, and that all payments of premiums made thereon would be forfeited. The instruments executed by the parties in the present case are certainly peculiarly strong and specific, bind- ing the insured to the utmost care and caution in his statements and representations, and to the most careful and scrupulous disclo- sure of everything material to the risk. Upon the grounds stated, judgment on the award must be for the defendants. Note. — See Rawls v. American Mul. Life Ins. Co. post, 549 ; Miles v. Con- necticut Mut. Life Ins. Co. post, 173 ; Campbell v. New England Mul. Life Ins. Co. post, 229 ; Kelsey v. Universal Life Ins. Co. ante, 76 ; Valton v. National Ifc. Assurance Society, post, 409 ; Hartman v. Keystone Ins. Co. post, 649. And see HoffJev. Guardian Life Ins. Co. post, 597, in which it is held that an erroneous answer to a question put by the medical examiner, who adopted all the answers of the applicant as his own in his report, did not amount to a mis- representation. Ducketty. Williams, 2 Cromp. & M. 348, (1834,) was an action upon a policy conditioned to be void, and that the premiums should be forfeited if the state- 166 SUPREME COURT OF MASSACHUSETTS. Palmer ». Merrill. ments as to health in the application should prove untrue. These statements were untrue, but not to the knowledge of the assured. Held, that the premiums were forfeited, and could not be recovered. Insurance was effected on the life of A for the benefit of B, and the office relied upon the representations of A, which proved untrue. Held, that B could not maintain an action upon the policy, though he was not privy to the misrep- resentation, and though A died from a different disease from that with which he was afflicted when the insurance was effected. Maynard v. Rhode, 1 Car. & P. 360 ; S. C. 5 Dowl. & R. 266, (1824.) Where the assured refers to a third party for information respecting his health, such party is not the general agent of the assm-ed ; and therefore the policy is not void because such party failed to communicate a material fact, as to which he was not interrogated by the insurers, unless he was aware of the materiality of the fact and studiously concealed it. And whether such fact should have been communicated, is for the jury to determine. Rawlins v. Deshorough, 2 Moody & R. 328, (1840,) and note. See, also. Von Lindenau v. Deshorough, 3 Car. & P. 353 ; Wainwrlght v. Bland, 1 M. & W. 32 ; Chatlock v. Shawe, 1 Moody & R. 498 ; Watson v. Main- waring, 4 Taunt. 763 ; Huguenin v. Rayley, 6 Taunt. 186 ; Swete v. Fairlie, 6 Car. & P. 1 ; Geach v. Ingall, 14 M. & W. 95 ; Anderson v. Fitzgerald, 4 H. L. Cas. 484 ; Fowkes v. Manchester Sf L. Life Ins. Co. 3 Fost. & F. 440, 3 B. 8e S. 917 ; Perrlns v. Marine, Sfc, Ins. Soc. 2 El. & El. 317 ; Wheelton v. Hardisty, 8 El. & Bl. 232; Cazenove v. British Ins. Co. 6 Com. B. (N. S.) 437, affirmed on appeal, 6 Jur. (N. S.) 826 ; Hutton v. Waterloo Life Ass. Co. 1 Fost. & F. 735 ; Jones v. Provincial Ins. Co. 3 C. B. (N. S.) 65. Samuel Palmer vs. Stephen Merrill. James Dana vs. Same. ■ (6 Cush. 282. Supreme Court, October, 1850.) Asmgnment of part. — Where the insured, for a good consideration, assigned part interest in his life policy, and gave notice to the company, but did not deliver the policy to the assignee, and afterwards became insolvent, and the insurance was paid to his administra- tor; heU, in an action at law against the administrator that the assignee could not recover the whole interest assigned him. The case is sufficiently stated in the opinion of the court. G. O. Loring, for the plaintiffs. 1. These demands were assignable. The plaintiffs do not con- tend tliat the policy could be assigned in portions ; but that an equitable interest in a portion might be assigned. These assign- ments of parts constituted a trust ; the administrator alone must collect the whole, but when collected, he holds the portions which have been assigned in trust for the assignees. 2 Story, Eq. J. §§ 1040 6, 1044. Lewin on Trusts, 15, 76, 77. Safford v. Ratdmd, OCTOBER, 1850. 167 Palmer v. Merrill. 12 Pick. 233. Wakefield v. Martin, 3 Mass. 558. OuMs v. Per- kins, 12 Mass. 206. Parkhwrst v. Dickerson, 21 Pick. 307. Adams V. Robinson, 1 Pick, 461. The delivery was as perfect as the case admitted. 2. The plaintiffs can maintain assumpsit, and are not obliged to resort to a bill in equity. Arms v. Ashley, 4 Pick. 71. Newhall V. Wheeler, 7 Mass. 189, 198. Hall v. Marston, 17 Mass. 575. Claflin V. Godfrey, 21 Pick. 1, 6. Swasey v. Little, 7 Pick. 296. Sheldon v. Purple, 15 Pick. 528. Andrews v. Sparkawk, 13 Pick. 393. 3. The plaintiffs may recover judgment and execution in these actions for the full amount of their claims, and are not obliged to present their claims to the commissioners in insolvency. See Rev. Sts. e. 69, §§ 6, 8 ; Lewin on Trusts, 205 ; Johnson v. Ames, 11 Pick. 178 ; Safford v. Rantoul, 12 Pick. 233 ; Trecothick v. Austin, 4 Mason, 16, 29, 30. G. W. Warren, for the defendant. Shavst, C. J. This is a suit against the defendant as administra- tor of the estate of Asa Spaulding, in which tiie plaintiff seeks to recover the whole amount due to him on certain notes due from said Asa Spaulding. It is conceded that the estate of Spauldihg has been represented insolvent ; and it is therefore quite clear that the plaintiff cannot recover his full debt to the injury of other creditors, unless there are circumstances which distinguish this case from the ordinary case of a claim on an insolvent estate. The plaintiff undertakes thus to distinguish it, by showing that he had a lien on a specific portion of the assets which came into the hands of the defendant charged with such lien ; and that the defendant, having received the amount of it, is liable to the plaintiff as for money received to his use. The ground is, that Asa Spaulding obtained a policy of insurance on his own life for $1,000 ; that during his life and whilst the policy was in force, he indorsed an order thereon, addressed to the insurers, requesting them in case of loss to pay |400 of the amount thereby insured to Palmer, the plaintiff, which order was duly signed by Spaulding and notified to the insurers ; but the policy with this indorsement thereon remained in the custody of Spauld- ing until his decease, and came into the hands of the administra- tor with the other effects of the deceased. A like order in all respects, and for the like sum, was also indorsed on the policy in 168 SUPREME COURT OF MASSACHUSETTS. Palmer v. Merrill. favor of James Dana. The claim of the plaintiff is, that this was an assignment pro tanto, of the policy, as collateral security for several notes described in the report. After the decease of Spauld- ing, and notice to the insurers, the plaintiff demanded of them the 1400, part of the loss, which the insurers declined paying, on the ground that the assignment was not in the form usually re- quired by them, and besides, that they did not think themselves obligated to pay the amount of the policy in instalments. Subse- quently on the demand of the defendant as administrator, the in- surers paid the full amount to him. The question is, whether the case shows an assignment which vested any interest in this policy, legal or equitable, in the plaintiff. The policy was an executory contract, a chose in action, available as a legal contract only to Asa Spaulding and his personal repre- sentatives. According to the modern decisions, courts of law recognize the assignment of a chose in action, so far as to vest an equitable inter- est in the .assignee, and authorize him to bring an action in the name of the assignor, and recover a judgment for his own benefit. But in order to constitute such an assignment, two things must concur : first, the party holding the chose in action must, by some significant act, express his intention that the assignee shall have the debt or right in question, and according to the nature and circumstances of the case, deliver to the assignee or to some per- son for his use, the security, if there be one, bond, deed, note, or written agreement, upon which the debt or chose in action arises ; and, secondly, the transfer shall be of the whole and entire debt or obligation in which the chose in action consists, and as far as practicable place the assignee in the condition of the assignor, so as to enable the assignee to recover the full debt due, and to give a good and valid discharge to the party liable. The transfer of a chose in action bears an analogy, in some re- spect, to the transfer of personal property ; there can be no actual' manual tradition of a chose in action, as there must be of personal property, to constitute a lien ; but there must be that which is similar, a delivery of the note, certificate, or other document if there is any, which constitutes the chose in action, to the assignee, with full power to exercise every species of dominion over it, and a renunciation of any power over it on the part of the assignor. The intention is, as far as the nature of the case will admit, to sub- stitute the assignee in place of the assignor as owner. OCTOBER, 1850. 169 Palmer v. Merrill. It appears to us that the order indorsed on this policy, and re- tained by the assured, fails of amounting to an assignment in both of these particulars. We do not question that an assignment may be made of an entire fund, in the form of an order drawn by the owner on the holder of the fund or party indebted, with authority to receive the property or discharge the debt. But if it be for a part only of the fund or debt, it is a draft or bill of exchange which does not bind the drawee or transfer any proprietary or equitablt interest in the fund until accepted by the drawee. It therefore creates no lien upon the fund. Upon this point the authorities seem decisive. Welch v. Mandeville, 1 Wheat. 233. S. 0. 5 Ibid. 277. Bobbins v. Bacon, 3 Greenl. 346. Cribson v. Oooke, 20 Pick. 15. It seems to us quite clear that the plaintiff acquired no such interest in this policy as would enable him to maintain an action against the insurers. He seems himself to have thought so too ; for although he demanded the amount of them, which they refused to pay for reasons which seem to be conclusive, he yet declined .bringing any suit against them, but permitted them to pay the money over to the administrator. If the plaintiff had no such legal . or equitable interest in the debt due on the policy as would enable him to maintain an action or suit in equity, either in his own name or in the name of the administrator of the assignor, for his own benefit, it seems difficult to perceive on what ground he had any equitable lien on the debt due by the policy ; and if he had not, then the administrator took it as .general assets, charged with no trust for the plaintiff. It appears to us that a contrary doctrine would tend to a great confusion of rights. A man cannot by his own act charge a per- sonal chattel, a carriage and horses, for instance, with a lien in favor of a particular creditor, and yet retain the dominion and possession of them till his death; a fortiori where he retains the memorandum or instrument of transfer of such chattel in his own possession and under his own control. It seems to us equally impracticable to charge a debt due to him, by an order or memorandum retained in his own possession, purporting to give to a particular creditor an equitable lien by the assignment of such chose in action, without a transfer or delivery of the security by which it is manifested. Such an assignment would not constitute the debtor himself a trustee to the creditors ; what trust then devolves on the adminis- 170 SUPREME COURT OF MASSACHUSETTS. Morrell v. Trenton Mutual Life and Fire Insurance Company. trator? Were the law otherwise, an administrator, instead of succeeding to the property and rights of his intestate, to be admin- istered and distributed equally amongst all the creditors, might be obliged to dispose of it in very unequal proportions, according to such supposed declaration of trust. These considerations apply with peculiar force to a policy of insurance on the life of the assured himself, on which no money can become due until the death of the assured, at which time all his rights devolve on his personal repre- sentative. If, therefore, it is intended to supersede the right of the personal representative, it must be done in the mode required for a complete assignment of the whole contract. The defendant having waived his objection that this action was brought too soon, for the purpose of trying the plaintiff's right, we see no objection to entering a judgment for the amount of the debt actually due from the intestate, to be certified to the judge of pro- bate, to be added to the commissioners' report of debts allowed, so as to enable the plaintiff to take a dividend pro raid with other creditors, but not to have execution de bonis testatoris. Note. — 111 the copy of 6 Cush. in the Social Law Library, Boston, there is a slip pasted at the end of this case, which reads as foUows : " It having been suggested in the argument that other facts existed, not appearing in the report, . showing that the assignments had been delivered to the respective assignees, at the time, notice thereof given to the company, and assented to by them; ex- pressly or by implication, a new trial was granted, on which the plaintiffs ob- tained verdicts and judgments.'' In Pomeroy v. The Manhattan Life Ins. Co. ante., 96, which was a suit in chancery, it is held that an assignment of part of an interest in a life policy is valid in equity ; even though made by the party for whose benefit the insurance was effected. And it does not appear in that case that there was any delivery of the policy to the assignee ; nor is any mention made of this subject in the opinion of the court. Ctkus K. Moerell vs. The Teenton Mutual Life & Fire Insurance Company. (10 Cush. 282. Supreme Court, October, 1852.) Insurable interest. — The creditor of a firm has an insurable interest in the life of a member of that firm, and may recover tlie amount insured; and it is no answer that the estate of the insured was solvent, and that the other joint debtor was able to pay. So, also, a party has an insurable interest iu the life of one with whom he had a contract, by which he was to receive one quarter of the earnings of the insured in the mines of California. Action upon a life policy upon the life of "William C. Morrell. The case is sufficiently stated in the opinion of the court. OCTOBER, 1852. 171 Morrell v. Trenton Mutual Life and Fire Insurance Company. A. M. Nelson, for the defendants, J. Gr. Abbott, for the plaintiff. Shaw, C. J. The court are of opinion, that upon the facts' stated, the plaintiff had an interest such as is recognized as a good insurable interest in the life of the person on which this policy was made by the defendant company to the plaintiff. He held a prom- issory note signed by a firm, of which the said William C. Morrell was one of the partners, to an amount larger than the amount in- sured ; this was due and owing at the time the insurance was made, at the death of the party whose life was insured, and at the time of the trial. Each partner is a debtor in solido to the whole amount of a joint debt. It is no answer, we think, that the estate of the deceased was solvent, and that the other joint debtor might be able to pay it ; it was enough, we think, that by the con- tract of the defendants, made on a valuable consideration, they guaranteed to the plaintiff that if his debtor should die within the time, and the debt remained unpaid, they would pay the amount stipulated. Anderson v. Edie, cited in Park on Ins. 640. Tids- well V, Anherstein, Peake's Gas. 151. But the court are strongly inclined to the opinion that the plain- tiff had another interest in the life of the person on whose life he was insured by the defendants. He had a subsisting contract with that person, made on a valuable consideration, by which he was to receive one quarter part of his earnings in the mines of California for one year. Such an interest cannot from its nature be valued or apportioned. It was an interest upon which the policy attached. By the loss of his life within the year, the person whose life was insured lost the means of earning anything more, and the plaintiff was deprived of receiving his share of such earnings, to an uncer- tain and indefinite amount. Exceptions overruled. See Lord v. Ball, ante, 154, and note. 172 SUPREME COORT OF MASSACHUSETTS. Hathaway v. Trenton Mutual Life and Fire Insurance Company. Reliance Hathaway vs. Tkenton Mutual Life and Fike Insurance Company. (11 Cush. 448. Supreme Court, October, 1853.) License. — A life policy conditioned to be void if the assured should pass the limits of the United States, was indorsed with a permit to the insured to make one voyage out and home to California round Cape Horn, or by Tera Cruz. The insured returned by way of Panama and Chagres. Held, that the policy was avoided, though the route actually taken were the safest and shortest. The case is stated in the opinion of the court. T. D. Eliot, for the plaintiff. N. Morton ^ B. Sanford, for the defendants. Merrick, J. The pohcy upon which this action was brought was granted and accepted upon the express condition that it should be void and of no effect, if the assured, without the consent of the* defendants previously obtained and indorsed upon it, should pass beyond the settled limits of the United States. In returning firom California he did go beyond those limits, and the policy was thereby rendered invalid, and the defendants were discharged from all lia- bility upon it, unless, as the plaintiff contends, the company gave their consent that he should do so. The consent upon which the plaintiff relies is contained in the words following, which were indorsed upon the policy : " Caleb Hathaway," the assured, " has permission to make one voyage out and home to California in a first-rate vessel, round Cape Horn or by Vera Cruz." This is not a general license, but a carefully de- fined and restricted permission. The company were under no ob- ligations to give any consent. It depended entirely upon their own will, and upon a new bargain to be made, whether they would give or withhold it. In yielding it they had a right to fix their own terms and to circumscribe it within such limitations as they deemed expedient. In this case they did exercise that right. They deter- mined and declared how far they would relax the stringency of the condition. To the extent conceded him, the assured was relieved from its obligation and effect. He was allowed, without infringing the contract or incurring the consequences of a breach of its con- dition, to make one voyage to California, out and home, in a first- rate vessel. But he was restricted to two routes. He was given the choice of the voyage round Cape Horn, or the passage by Vera Cruz. He did not avail himself, as he might safely have done, of SEPTEMBER, 1854. 173 Miles V. Connecticut Mutual Life Insurance Company. either of these routes, but returned from Cah'fornia by way of Panama and Chagres. For that departure from the settled limits of the United States, and the transportation of himself into those places, no consent was given by the defendants ; and therefore it was a breach of the condition, which rendered the policy void. It is of no consequence that the route home taken by the as- sured was, or may have been, as the plaintiff offered to prove, the safest and shortest. The policy excluded him, if he would avail himself of the provisions and of the^assurance contained in it, from being governed by what was advisable and expedient. It fixed the terms upon which the promise should be binding and upon which it should be annulled. By those terms the parties are bound. There having been a breach of the condition, the contract is thereby rendered void. See Barrett v. Union Mutual Fire Ins. Co. 7 Cush. 175. Plaintiff nonsuit. See Nightingale v. State Mut. Life Ins. Co. post, 695 ; Baldwin v. New York Life Ins. Co. post, 504 ; Casler v. Connecticut Mut. Life Ins. Co. post, 640 ; Wells V. Connecticut Mut. Life Ins. Co. post, 581 ; Taylor v. Elnd Life Ins. Co. post, 189 ; Bevin v. Connecticut Mut. Life Ins. Co. ante, 19 ; Notman v. Anchor Ins. Co. 4 Com. B. (N. S.) 476. Elmer B. Miles et al. vs. Connecticut Mutual Life Insur- ance Company. (3 Gray, 580. Supreme Com^, September, 1854.) Warranty. — A life policy declared that it was expressly " agreed to be the true intent and meaning hereof that if the proposal, answer, and declaration made bj' " the plaintiffs, " and upon the faith of which this agreement is made, shall he found in any respect un- true," the policy should be void. The proposal was made part of the policy, and con- tained a provision as to the statements made in it similar to the foregoing. Held, that the statements were thus made warranties ; and if untrue even in an immaterial point the policy was void. Contract upon a policy of insurance issued to the plaintiffs upon the life of Alanson C. Currier, in which it is expressly " understood and agreed to be the true intent and meaning hereof, that if the proposal, answer, and declaration made by " the plain- tiffs, " and upon the faith of which this agreement is made, shall be found ' in any respect untrue, then and in such case this policy shall be null and void." In that proposal, the plaintiffs declare (among other things) that 174 SUPEEME COURT OF MASSACHUSETTS. Miles V. CoDnecticut Matual Life Insurance Company. the answers and statements therein made are correct and true, and " agree that the answers given to the following questions and the accompanying statements and this declaration, shall be the basis and form part of the contract or policy between them and the said company, and that if the same be not in all respects true and cor- rectly stated, the said policy shall be void." Among said questions and answers were the following^: "Has any near relative of the party died or been afflicted with consumption or any pulmonary disease ? If so, state particulars ; who, and at what age ; and how many of the family are still living ; what are their ages and their present health ? " Answer. " Two sisters, supposed by carelessness. Five children still living, all healthy." " Has the party been afflicted since childhood with consumption, or spitting of blood, and which ? " Answer. " No." " Has the party been afflicted with disease of the heart, or disease of any of the vital organs, and which ? " Answer. " No." " Has the party been afflicted during the last seven years with any severe or constitutional disease, and what?" Answer. "No." "Is the party now afflicted with any disease or disorder, and what?" Answer. " No." The defendants, in their answer, alleged that these statements were warranties, and that they were untrue, and the policy there- fore void ; because Currier, at and for a long time before the date of the application had been afflicted with bronchitis, consumption, and other severe diseases of the throat and lungs, and his father had died of consumption, and a brother of his had been afflicted with pulmonary disease. Trial in the -court of common pleas, before Mellen, J., who signed the following bill of exceptions : " The court ruled that the statements and declarations contained in the application for insur- ance, and set forth in the defendants' answer, were warranties; and if any of them were untrue, the plaintiff could not recover ; and that no regard should be had to the materiality of such statements or declarations so set forth as warranties in relation to this point. The defendants offered evidence tending to show that some of these statements and declarations were untrue. The jury found a ver- dict for the defendants, and the plaintiffs except to the foregoing ruling." a. A. Chapman, for the plaintiffs. ff. Morris, for the defendants, cited Angell on Fire & Life Ins. §§140-142, 147, 148, 318, 319; 1 Phil. Ins. (3d ed.) § 755; SEPTEMBER, 1856. 175 Loomis V. Eagle Life and Health Insurance Company. Bunyon on Life Assurance, 31 ; Ellis on Fire & Life Ins. 28 ; Worsley v. Wood, 6 T. R. 710 ; Houghton v. Manuf. Mutual Fire Ins. Co. 8 Met. 114; Vose v. Eagle Life ^ Health Ins. Go. 6 Cush. 42 ; [ajite, 161 ;] Gtlendale Woollen Co. v. Protection Ins. Co. 21 Conn. 19 ; Newcastle Fire Ins. Co. v. Macmorran, 3 Dow, 255. Metcalf, J. Upon the authorities cited for the defendants, and upon many others, the statements and declaration contained in the application for insurance, and referred to in the policy, were war- ranties ; and if any of them, whether material or immaterial to the risk, were untrue, either from design, mistake, or ignorance, the plaintiffs cannot recover. In their application, they agreed in terms that the answers given to the questions propounded to them, and the accompanying statements and declarations should be the basis of the policy, and that if the same were not in all respects true and correctly stated the policy should be void. And it was moreover stated in the policy itself, that it was understood and agreed to be the true intent and meaning thereof, that if the an- swers and declaration made by the assured, and on the faith of which the policy was declared to be made, should " be found in any respect untrue," the policy should be null and void. The jury having found that some of those answers were untrue, and no mo- tion being made to set aside the verdict as against the evidence, there is an end of the plaintiffs' case. Exceptions overruled. See Vase v. Eagle Life and Health Ins. Co. ante, 161, and cases cited. Albekt Loomis, administrator, vs. Eagle Life and Health Insukancb Company. (6 Gray, 396. Supreme Court, September, 1856.) Proof of death. — Where a third party left affidavits with the insurers of the death of the insured, and the plaintiff notified the office of the death, and referred to the affidavits for proof thereof; held, sufficient proof of the death. Insurable interest. — A father being entitled to the earnings of his minor son, has an insura- ble interest in his life. Contract upon a policy on the life of Freedom Keith, minor son of B. M. Keith. The son and father, and other children of the latter, had worked in a factory in Connecticut until the period of insurance, at which time the son was a little over twenty years of age. At this time 176 SUPREME COURT OF MASSACHUSETTS. Loomis V. Eagle Life and Health Insurance Company. the son entered into a contract with one Cook, in consideration of $300, to go to California in behalf of a company of which both were members, and engage in mining ; the son agreeing to pay- Cook half his share of the profits. The father assented to thft agreement, and relinquished his claim to the son's services, so far as Cook was concerned. Cook insured the son's life fo^ $500, and the latter died on his way to California. Cook thereupon left with the company affida- vits of the death, and the administrator notified the office of the event, and referred for proof to the affidavits. jH". Vbse ^ L. Norton, for the plaintiff. H. Morris, for the defendants. Shaw, C. J. Some question was made at the argument, whether the proof of death was sufficient; but on that point we have no doubt that the evidence was sufficient to sustain the verdict for the plaintiff. But the ground principally relied on is, that the assured had no pecuniary interest in the life of his son at the time the policy was made, and no insurable interest at the time the loss occurred. We understand that the law of Connecticut (where the parties resided) is similar to that of Massachusetts, and that by the law of both states, a father who supports, maintains, and educates a son under twenty-one years of age, and not emancipated, is entitled to the earnings of such son, and may maintain an action for them. Here, when the father had in terms relinquished his right to a share in the son's earnings, for a valuable stipulation on the other side, designed and intended to increase those earnings, by a neces- • sary implication he reserved his right to the other share of those earnings. According to any, the strictest, rule of construction, the assured in this case, we think, had a direct and pecuniary interest in the life of the cestui que vie, his son. It is argued that the time which would remain after his probable arrival in California, before becoming of age, would be so short that his earnings, if anything, would be very small. Supposing he was to have a passage of three or five months, he might still have five or six months to work in California ; and this being a contract dealing with- chances and probabilities, and even possibilities, and to be construed as such, it may well be supposed that the parties had it in contemplation that, by working a few weeks or days in a gold mine, or by a lucky hit in a single day, he might gain gold enough to make his share ex- SEPTEMBER, 1856. 177 Loomis V, Eagle Life and Health Insurance Company. ceed the whole sum insured. But nearness or remoteness of this chance is immaterial ; the parties regulate that matter for them- selves, in fixing the sum to be insured and the rate of premium. It seems to us therefore that, according to the rule relied on by the defendants, the assured in the present case had a direct and pecun- iary interest in the life of the son, sufficient to enable him to maintain this action. But upon broader and larger grounds we are of opinion that, independently of the fact that the son was a minor, and the assured had a pecuniary interest in his earnings, the assured had an insura- ble interest sufficient to maintain this action. The case in this state must be governed by the rules and princi- ples of the common law, there being no regulation of the subject by statute. This was distinctly stated as the ground of decision in the leading and principal case decided in this commonwealth. Lord V. Dall, 12 Mass. 115.^ In reply to a query, whether an action would lie on a policy of insurance on life, the law of England never having been adopted and practised upon in this country, the court say : " It is true that no precedent has been produced from our own records of an action upon a policy of this nature." " By the common principles of law, however, all contracts fairly made, upon a valuable consideration, which infringe no law and are not repugnant to the general policy of the laws or to good morals, are valid, and may be enforced, or damages recovered for the breach of them." • 12 Mass. 117. ^ In discussing the question in this commonwealth, we are to con- sider it solely as a question at common law, unaffected by the St. of 14 G. III. c. 48, passed about the time of the commencement of the revolution, and never adopted in this state. All therefore which it seems necessary to show, in order to take the case out of the objection of being a wager policy, is that the insured has some interest in the life of the cestui que vie ; that his temporal affairs, his just hopes and well grounded expectations of support, of pat- ronage and advantage in life will be impaired ; so that the real purpose is not a wager, but to secure such advantages supposed to depend on the life of another ; such, we suppose, would be suffi- cient to prevent it from being regarded as a mere wager. Whatever may be the nature of such interest, and whatever the amount in- sured, it can work no injury to the insurers, because the premium 1 Ante, 154. 12 178 SUPREME COURT OP MASSACHUSETTS. Loomis V. Eagle Life and Health Insurance Company. is proportioned to the amount ; and whether the insurance be to a large or small amount, the premium is computed to be a precise equivalent for the risk taken. Perhaps it would be difficult to lay down any general rule as to the nature and amount of interest which Jhe assured must have. One thing may be taken as settled, that every man has an interest in his own life to any amount in which he chooses to value it, and may insure it accordingly. We cannot doubt that a parent has an interest in the life of a child, and vice versa, a child in the life of a parent ; not merely on the ground of a provision of law that parents and grandparents, children and grandchildren, are bound to support their lineal kin- dred when they may stand in need of relief, but upon considera- tions of strong morals, and the force of natural affection between near kindred, operating often more efficaciously than those of posi- tive law. In the case of I/ord v. Dall, it was held that it might be inferred from particular circumstances. " These insurances on lives," says Mr. Park, in his very able treatise, " when a loss happens upon them, must be paid according to the tenor of the agreement, in the full sum insured, as this sort of policy, from the nature of it, being on the life or death of man, does not admit of the distinction between total and partial losses." Park on Ins. (7th ed.) 645. We are aware that it has been stated as upon good authority, (3 Kent Com. 6th ed. 368,) that where the insurance is upon the life of a debtor in behalf of a creditor, it is in effect a guaranty of the debt, and if the debt is paid, the insurance is at end, on the authority of Godsall v. Boldero, 9 East, 72 ; also, that a man has hot such an interest in the life of his wife and child, merely in the character of husband or parent. Salford v. Kymer, 10 Barn. & C. 724. But we believe it is now settled that these cases are not law, and that they arose partly from a misconstruction of the St. ofl4G. III. c. 48. We believe it is now conceded that before that statute a policy on life was good at common law, and that the object of that statute was to prohibit wager policies. That it was not a declaratory act, but introduced a new law, was decided in the Irish court of ex- chequer chamber, in British Ins. Co. v. Magee, Cook & Alcock, 182, approved and confirmed by the case Jiereafter stated. The construction put upon the statute by the court of king's bench in 1807, wus not only tliat there must be an interest when SEPTEMBER, 1856. 179 Loomis V. Eagle Life and Health Insurance Company. the policy is made, to prevent its being a wager policy, but that it must continue to the time of the recovery, and if the debt is tlien paid, the interest is gone, and the plaintiff cannot recover. And so it has been held that such a life policy, like a marine or fire in- surance, is a contract of indemnity, and, as a legitimate conse- quence, that nothing can be recovered upon it but the balance of the debt. And in this case it was insisted at the trial as matter of defence, that the plaintiff could not recover without proving an existing debt, nor to any amount beyond the balance of the debt. Whereas it was contended that it was an independent and collat- eral contract ; and if there was any debt due at the time from the cestui que vie to the assured, it was sufficient to satisfy the statute. In this state of the question, the case of Grodsall v. Boldero, 9 East, 72, was decided in 1807. It was a policy upon the life of Mr. Pitt in favor of the plaintiffs, coachmakers, to whom he was largely indebted ; after Mr. Pitt's death, by the gratuitous act of the nation a fund was raised by act of parliament, and furnished to the executors, by whom the plaintiffs were paid their debt. That case was decided in favor of the defendants on the specific ground that the policy was in effect a security for the payment of the debt only ; that if the debt was fully paid by the executors, either from the assets of the deceased or from funds gratuitously fur- nished them, it put an end to all claim of loss on the pohcy. That case, though not entirely satisfactory, and though it was questioned whether it was decided upon the right principle, stood as a high authority until a late period. It was cited in a case in this court, King v. State Mutual Fire Ins. Co. 7 Gush. 1. That was a case where a mortgagee of real estate had made insurance for his own benefit, on his own interest as mortgagee, and paid the premium out of his own funds. The defendants claimed that as their loss, when paid, would go to extinguish his debt in whole or pro tanto, they were equitably entitled to an assignment of a pro- portionate part of the mortgage debt. But the court were of opinion that such separate insurance by the mortgagee was a sepa- rate and distinct collateral contract, which the assured had a right to make and did make for his own use ; that the payment of such loss was not a payment of the same debt or duty as the mortgage, and did not operate as payment of the mortgage debt, and there- fore it was a contract in which the original debtor could claim no benefit. In referring to Qodsall v. Boldero, the court remarked 180 SUPREME COURT OF MASSACHUSETTS. Loomis V. Eagle Life and Health Insurance Company. that perhaps it was influenced by the consideration that it was the true purpose of the government, in honor of a distinguished pub- lic servant, that no one should suffer by the non-payment of Mr. Pitt's debts ; so that when the original creditors were paid, it was in furtherance of the purposes of the country that another party should not be declared liable. We now come to the case pf Balby v. India ^ London Life Assurance Co. decided in the exchequer chamber. 15 C. B. -365. By that case, Grodsall v. Boldero is directly drawn in question and overruled. It decides that a policy of life insurance is not a con- tract of indemnity, but a contract in a certain event to pay a cer- tain sum in consideration of an annual premium ; that when a policy effected by a creditor on the life of his debtor is valid at the time it is entered into, the ceasing ot that interest before the death does not invalidate the insurance under St. 14 G. III. c. 48. See also Law v. London Indisputable Life Policy Co. 1 Kay & Johns. 223. The case of Halford v. Kymer, 10 Barn. & C. 724, in which it was held that a father, in his capacity as such, had no insurable interest in the life of his son, was decided expressly upon the terms of the St. of 14 G. III. c. 48, and the insurance was held to be void by force of the statute. As tiie St. of 14 G. III. did not extend to Ireland, where one of the conditions in an Irish policy required that the assured should have an interest in the life insured, the court considered that all the circumstances of the case should be looked at ; the effect of such a condition, in an Irish policy, must depend upon its express terms ; and unless the intention was apparent, the court could not import into the contract the contents of the English statute. Scott v. Moose, Longfield & Townsend, 54. British Ins. Co. v. Magee, Cook & Alcock, 182. As the English statute in terms has never been in force in this country, the case must be governed by the principles of the com- mon law. Prima facie the plaintiff in the present case has an in- terest in the life of his son, the policy of insurance was a valid one, and the plaintiff is entitled to recover upon it. Exceptions overruled. See Mitchell y. Union Life Ins. Co. ante, 137; Lordy.DaU, ante, 154, and note. NOVEMBER, 1866. 181 Hammond v. American Mutual Life Insurance Company. Mary R. Hammond vs. American Mutual Life Insurance Company. (20 Law Reporter, 273. Superior Court of SufTolk, November, 1856.) Sunday. Time of payment. — Quarterly premium upon a life policy became due on Sunday. The insured died on that day, without having paid- such premium ; but the same was ten- dered and refused on Monday morning following. Held, that the company were liable. The case is sufficiently stated in the opinion of the court. S. A. Scudder} for defendants. This contract does not come within the rule that ^' when the day of performance of contracts falls on Sunday, compliance with the stipulations of the contract on the next day is deemed in law a performance." In ordinary contracts, to be performed on a day certain, per- formance thereof cannot be compelled or tendered before the day arrives ; and if not on the day mentioned, then performance must be enforced or tendered on the succeeding day or never. But in this case, the performance was to be on or before the day named, and might therefore have been tendered before as well as on that day. Again the rule contended for is a rule of equity and expediency. But to apply it to this case, would enable the assured, by his own negligence, to cast upon the defendants the risk of insuring liis life for an additional period, without any adequate consideration there- for ; it Ijeing entirely optional with the assured to pay or not on the day succeeding. The act to be performed wn the part of the assured was in the nature of a condition precedent, aild as such should be literally construed. L. Mason, for plaintiff. Huntington, J. The question arises upon the true construc- tion to be given to a contract of insurance, contained in a life pol- icy, issued by the defendant company. There are various stipulations, but the material ones, so far as relates to the question raised in this case, are those touching the payment of the premium quarterly in advance. The policy purports to be made partly in consideration of the 1 See argument in the supreme court, in foil, iiifra, p. 185. 182 SUPERIOR COURT OF SUFFOLK. Hammond ». American Mutual Life Insurance Company. representations and statements of the assured, and partly in consid- eration of the payment of the premium quarter-yearly in advance. It is payable within ninety days after proof of the death of the as- sured, provided the policy is then in force. There is a provision in the policy that it shall termi;iate and be- come null and void, among other things, not material to this ques- tion, "in case the premium. changed hereon shall not be paid . . . . quarter-yearly in advance, on or before the day at noon, on which the same shall become due and payable." The quarterly payments had been made for the quarters prior to October 1st, 1854, on which day, it being Sunday, at 4 o'clock, p. m., Ham- mond, the assured, died, not having paid the premium for the en- suing quarter ending January 1st, 1855, in advance. It appears from the policy that it had once attached. It was to terminate upon certain conditions. The use of the word " termi- nate " implies that it had begun to run, which indeed is not denied. The condition as to the quarterly payment, though in advance, was in the nature of a condition subsequent. Whether tlie policy was " in force," therefore, at the time of the death of Hammond, depends on the question, whether the quarter-yearly payment in advance had or had not become due and payable on the first day of October, 1854, it being Sunday. If it was not then due and payable, the policy was by its terms in force, for it was a policy for life and not for a term of years, and it is not claimed that any other condition has been broken. If it was due and payable on that day, no tender on a subsequent day could avail. Neither can the acceptance of quarterly payments by the defendants, after they were due at previous periods, as the case finds, be used as evidence of a waiver, because it was done under a right reserved by the company under the contract. We find no decision that meets the question here presented. Neither is it within the pro- visions of the act of 1856, touching the performance of certain con- tracts on Sunday, if in terms that statute should be construed to apply to a contract of this character. The nearest approach to the case at bar we have been able to find is that of Sands v. Lyons, 18 Conn. 18, where a testator devised property to his son B, on condition that he should pay to A $100 within one year after the testator's decease. He died October 2d, 1841. October 2d, 1842, which was the last day of the year in which it was to be paid, came on Sunday. It was held that a tender on the succeed- NOVEMBER, 1856. 183 Hammond v. American Mutual Life Insurance Company, ing- Monday was sufficient. The court, in their decision, recog- nized the doctrine laid down by a majority of the court in Avery v. Stewart, 2 Conn. 69, as tersely stated by Judge Gould, that " Sun- day cannot be regarded as a day in law for the purpose of perform- ing contracts ; it is to be considered as stricken from the calendar." The principle laid down by Judge Gould is recognized in Salter V. Burt, 20 Wend. 205. Our own court, in Stebbins v. Leowolf, 3 Gush. 173, without declaring what the law is in Massachusetts, and alluding to the diversity of decisions, apply the law as estab- lished in New York and Connecticut, to a contract governed by the laws of New York without dissent or question. It is argued, however, that these were cases where the contract could not have been performed before the day named, but that in the case at bar it was stipulated that the premium should be paid on or before the day it became due. In Sands v. Lyons, however, where the legacy was to be paid within a year, though the court declined deciding the point, it would probably be held that the leg- acy might have been tendered before the last day. If we adopt the construction of the defendant, and hold that in- asmuch as the premium might have been paid before October 1st, Sunday is not to be considered as stricken from the calendar, we assume to alter the provisions of the contract, and to strike out the option secured to the assured, of paying in advance either on or before the day it became due. The rule in Salter v. Burt was applied to all contracts falling due on Sunday, "other than instru- ments on which days of grace are allowed." There is no grace in a contract requiring a man to advance or pay money before the last day fixed by the contract. Contracts of insurance are to be construed liberally in favor of the assured, and not captiously and literally. If we hold that this payment should have been made on Saturday, we deprive the assured of one day which he would have had if the first of October had not fallen on Sunday. If we hold that it might be made on Monday, we deprive the company of money which they would otherwise have received a day earlier. We read the contract as securing to the assured the right to pay in advance until the last hour of the last day of the preceding quar- ter at noon. At that hour the law made the payment illegal. We think, therefore, that the law gives as much time on the suc- ceeding day as it takes away on that last day. 184 SUPERIOR COURT OF SUFFOLK. Hammond v. American Mutual Life Insurance Company. The death on the afternoon of Sunday consequently was before the condition was broken, and the insurance having previously attached, and continuing for life until this provision was violated, we must consider the policy as in force at the time of the death. Conditions annexed to estates in realty, so as to go to their de- feasance and destruction, are taken strictly and not beyond their words. By analogy the same rule may well be applied to any condition subsequent, where a valuable right, interest, or property was once vested. We are referred to Tarleton v. Staniforih, 5 T. R. 695 ; Want v. Blunt, 12 East, 183, a.ni Mutual B. L. Ins. Go. v. Ruse, 8 Georgia, 534,1 as sanctioning a contrary doctrine. In all these cases, how- ever, the premium was not offered or tendered until after it was due by the terms of the policy as construed by the court, and tlie last day did not fall on Sunday, but on a day when it might legally have been paid. The ingenious argument for the defence proceeds upon the assumption that the payment was due, and we should feel bound by the force of its reasoning, if we thought the true construction of the contract to be that the advance premium be- came due on Sunday, October 1st. In Want v. Blunt, the court say the policy in terms was declared to expire on quarter day, and the premium was to be paid during the life of the assured, person- ally by him. In Tarleton v. Staniforth, the insurance was only for six months in terms, and the death occurring subsequently, and there being no insurance till the premium was actually paid, the court held in both cases that the policy was not in force. The case in Georgia was precisely similar. It will be seen that the contracts of insur- ance in those cases were dissimilar in their provisions to the case at bar, and the law of those cases does not govern the construction of a policy different in terms. We construe the contract submitted to us as if there were an express stipulation inserted, providing that when the last day of the quarter falls on Sunday, the advance premium shall not be con- sidered as due till the succeeding Monday at noon. A day, other than Sunday, October 1st, must be substituted, either the Saturday before or the Monday after, and for the reasons assigned we adopt the latter day, and hold the policy in force at the time of the death, and judgment must be for the plaintiff. Affirmed on appeal. See next page. 1 Ante, 83. MARCH, 1858. 185 Hammond v. American Mutual Life Insurance Company. Makt R. Hammond vs. American Mutual Life Insurance Company. (10 Gray, 306. Supreme Court, March, 1858.) Sunday. Time of payment. — Quarterly premium upon a life policy became due on Sunday. The insured died on that day, without having paid such premium ; but the same was tendered and refused on Monday morning following. Beld, that the company were liable. Contract upon a life policy, premiums upon which were to be paid quarterly in advance. The premium in question fell due on Sunday, October 1st, at noon. Between the hours of two and four o'clock in the afternoon of that day the insured died without hav- ing paid the premium then due. The sum was tendered on Mon- day morning following, and refused. i. Mason, for the plaintiff, cited Stehlins v. Leowolf, 3 Cush 137 ; Thayer v. Felt, 4 Pick. 356 ; Avery v. Stewart, 2 Conn. 69 Sands v. Lyon, 18 Conn. 18 ; Delamater v. Miller, 1 Cow. 75 Salter v. Burt, 20 Wend. 205 ; Link v. Olemmens, 7 Blackf. 479 Barrett v. Allen, 10 Ohio, 426 ; 1 Kent Com. (6th ed.) 131; Rev, Sts. c. 50, § 1 ; Buchlee v. United States Insurance, Annuity ^ Trust Co. 18 Barb. 541 ; \_post, 406 ;] Hammond v. American Mur tual Life Ins. Co. 20 Law Reporter, 273, [ante, 181.J H. A. Scudder, for the defendants. This policy may be regarded as an insurance from quarter to quarter, so long as the premium thereon was paid " quarter-yearly in advance," and therefore as having expired on the 1st of October 1854 at noon, before the death of the assured. Tarleton v. Staniforth, 5 T. R. 695. Want V. Blunt, 12 East, 183. Mutual Benefit Life Ins. Co. v. Ruse, 8 Georgia, 534, [ante, 83.] If not, then it must be construed as a conditional agreement of the defendants to pay the sum named " within ninety days after proof of the death of the " assured, " provided this policy is then in force." And (1.) The conditions of the policy had not been complied with on the part of the assured at the time' of his death. The premium was not paid or tendered " in advance," or " on or before the day at noon on which it became due," or " during the term of the pol- icy," that is, the life of the assured ; and the assured died after the premium " became due," and " during the non-payment " thereof. Consequently the policy was not then " in force," but had become 186 SUPREME COURT OF MASSACHUSETTS. Hammond v. Americali Mutual Life Insurance Company. by its own terms " null and void." Cases above cited. Vbse v. Eagle Life Ins. Go. 6 Cush. 42, [awie, 161.] Sathaway v. Tren- ton Mutual Life Ms. Co. 11 Cush. 448, {ante, 172.] (2.) The tender subsequently made on Monday cannot operate nunc pro tunc as a compHance with the conditions of the policy. If available at all, it must be upon the ground that when the day of performance of contracts falls on Sunday, compliance with the stip- ulations of the contract on the next day is deemed in law a per- formance. Salter v. Burt, 20 Wend. 205. But that rule only applies to one class of contracts, and even there seems of question- able authority. Avery v. Stewart, 2 Conn. 69. Kilgour v. Miles, 6 Gill & Johns. 268. No such rule can apply to this case. The assured being dead, there was no person in existence legally authorized to tender a compliance with the requirements of such a rule, and no contract of the assured to which such rule could be applied. The assured never contracted to pay the successive prem,iums. Compliance with the terms of the policy in this respect was entirely optional on his part. The act to be performed by him was in the nature of a condition precedent, and as such must be strictly construed, and the defendants' liability made to depend upon previous compliance with that condition. No necessity existed for an application of the rule, as the pre- mium might have been paid before as well as on the day it became due. And to allow its application would be to enable the assured, by his own negligence, to cast upon the defendants the burden and risk of insuring his life for an additional day without any adequate consideration ; inasmuch as the payment of the premium at the expiration of such additional day would be left to depend upon the will, or at least upon the ability, of the assured, in violation of the express terms and conditions of the policy. Dewey, J. There can be no doubt as to the character of this contract, and that the policy would be forfeited and avoided by the neglect of the assiired to pay the premium chargeable thereon at any quarter day when the same became due and payable. The policy was granted by the one party and accepted by the other with a recital therein that the same was to be taken " in reference to all the conditions herein contained." Among those conditions it is provided that " in case the premium charged hereon shall not be paid annually in advance, or half or quarter-yearly in advance, on MARCH, 1858. 187 Hammond v. American Mutual Life Insurance Company. or before the day at noon on which the same shall become due and payable," then the same shall "cease and terminate, and neither the whole nor any part of the sum agreed to be paid shall be due or payable." The whole inquiry is reduced to this point, when was the quarter- yearly payment for the quarter succeeding that commencing on the 1st of July 1854 due, and by law required to be paid ? Adopting the proper division of the year into four quarters, and commencing on the 1st of April 1854, the third quarter would commence on the 1st of October, and the premium to be paid for that quarter, irre- spectively of the circumstance that the first day of October occurred on Sunday, would be required to be paid on that day. The as- sured had however until the 1st of October at noon to pay the premium. He was not in default before that time, unless it be that in case the 1st of October occurring on Sunday, he was re- quired to pay the premium on the Saturday preceding. The only question in the case seems to be whether Sunday is to be excluded as a day of payment, and the payment properly postponed till Mon- day, or whether the party, to save his policy from being forfeited, must make his quarterly payment on or before Saturday, when the quarter day falls on Sunday. We have on the one hand the rule as to commercial paper, or negotiable notes payable with grace, requiring payment to be made on Saturday where the third day of grace falls on Sunday ; and on the other a rule, generally adopted as to other contracts to pay money or perform other specific duties on a certain day named, that if such day falls on Sunday the day of performance is post- poned till Monday. Salter v. Burt, 20 Wend. 205. In reference to notes payable on a certain day, but entitled to three days' grace, it is said that in such case the note by its terms would be due and payable two days earlier than Saturday, and that what was originally a mere indulgence to casualty or oversight should not be extended, and therefore if the last of three days of grace falls on Sunday, the payment must be made on Saturday, and that it was more reasonable to take from than to add to a period of time thus originally allowed as mere grace and favor. But as to other contracts, which by the face of the instrument required a payment on a day which proves to be Sunday, to dis- charge literally the promise or duty, the law seems to sanction the postponement of the time for doing the same till the Monday fol- lowing. In other words, Sunday is not a legal day for the perform- 188 SUPREME COURT OF MASSACHUSETTS. Hammond v. American Mutual Life Insurance Company. ance of contracts and doing secular business. The statute law- forbids all such acts. The party paying and the party receiving money on that day in discharge of a contract would subject them- selves to a penalty for so doing. Sunday was not a day con- templated by the parties as embraced in the stipulation to pay a quarterly premium on the first day of October in each and every year during the life of the party assured. The defendants had no office open on that day, and were under no obligation to receive the payment of the premium on that day, if the same had been tendered by the assured. Such being the case, the assured was under no obligation to do what would have been not only an illegal act, but also one which the other party was not bound to recognize. In this view of the case there was no such default on the part of the assured, in not paying the premiura fully due on the 1st of Oc- tober, as should be held to terminate the policj'. It is urged on the part of the defendants that this was not an ordinary contract to be performed on a day certain, and that the assured was under no legal obligation to pay subsequent premiums after the expiration of a quarter of a year ; but such payment was a voluntary act, to be done or not done at his election ; and there- fore that the rule of law applied to a contract binding a party to do some act at some future named period, which proved to be Sunday, has no proper application here. But we think the rule as to the time of making the payment is the same in both cases. It was the purpose of the assured to obtain a policy to continue during his life. Such policy was issued to him, but upon condition that he should make his quarter-yearly paj'^ments regularly in advance. It was obligatory on him to pay, if he would continue the policy in force. The day of payment was on this occasion the first day of October. That day, as it appears, fell on Sunday ; and this being so, he was entitled to the ordinary privilege of discharging his obli- gation on the Monday following. The quarter-yearly payment, it is true, in terms became payable on Sunday noon ; but that day was not a day for secular business, and therefore, legally speaking, Sunday was not the day " at which the same became payable ; " and so, by the very provisions of the policy, properly construed, the quarterly premium was seasonably tendered on Monday. Judgment for the plaintiff. See Campbell v. International Life Ass. Society, post, 522 ; Ruse v. Mutual Benefit Life Ins. Co. post, 467 ; Woodfin v. Asheville Mut. Ins. Co. post, 626 ; Robert v. New England Mut. Life Ins. Co. post, 634. SEPTEMBER, 1859. 185 Taylor v. ^tna Life Insurance Company. Vaenum N. Tatlob vs. ^tna Life Insurance Company. (13 Gray, 434. Supreme Court, September, 1859.) Proof of death. — In an action upon a life policy payable ninety days after due notice and proof of death, the plaintiff consented to the admission in evidence of a pamphlet which stated that the company required " a certificate from the physician who attended the party during his last sickness, stating partioula'-h' the nature of the disease, its duration, and the time of death." This certificate was required to be on oath. The pamphlet was not made part ol the policy. 3eld, that even though this requirement were a by-law of the company, the plaintiff was only hound hy the policy, and was not required to furnish the certificate, unless by a usage of the company made known to him at the time of effect- ing insurance. License to pass by sea in first-class vessels, is not vitiated by taking passage as a steerage passenger. The case is stated in the opinion of the court. J. Wells, for the plaintiff. F. Cfhamherlin, for the defendants, in support of the first ground of defence, cited Angell on Ins. §§ 24, 99, 375 ; 2 Phil. Ins. § 1811 note ; and of the second, Taunton Copper Co. v. Merchants' Ins. Oo. 22 Pick. 116 ; 1 Phil. Ins. § 460 ; Angell on Ins. §§ 24, 99. Metcale, J. 1. By the terms of the policy, the sum insured was payable in ninety days " after due notice and proof of the death " of Andrew Taylor. Such notice and proof were therefore prerequisite to the maintenance of this action. The defendants, in their answer, deny that they were furnished by the plaintiff with such proof. They admit, however, in the statement of facts, that there was no defect in the proof of said Taylor's death, unless, in order to constitute due proof thereof, it was necessary to produce a sworn certificate, such as is hereinafter mentioned, of the physi- cian who attended the deceased in his last sickness. The ground taken by the defendants is, that such certificate is a requisite and essential part of the preliminary proof of the death, and made so not only by the terms and reasonable intendment of the contract contained in the policy, but also by their own usage and under- standing, and the usage and understanding of other life insurance companies. To support this ground of defence, the defendants have intro- duced (the plaintiff's counsel consenting) a pamphlet issued by them, which they were accustomed to give to claimants on their pol- icies, and which, it is admitted by the plaintiff, was given to him 190 SUPREME COURT OF MASSACHUSETTS. Taylor «. iEtna Life Insurance Company. _ ^ .^ , _ by the defendants at the time when he presented to them his proof of Andrew Taylor's death. Under the head of " Proofs of Death Required," that pamphlet contained among other required proofs the following : " 1st. A certificate from the physician who attended the party during his last sickness, stating particularly the nature of the disease, its duration, and the time of death." It was also a part of said required proof that the certificate " should be sworn to before a magistrate or other oflScer qualified to administer an oath or affirmation." As this matter is not contained in the state- ment of facts, we have taken it into consideration solely upon the consent of the plaintiff's counsel that we might. But, after adding this to the facts regularly agreed upon, we find no defence to the action. The policy does not embody nor refer to any by-law, re- quisition, usage, or understanding of the defendants as to the kind of proof which they should require of the death of Andrew Tay- lor. Whatever, therefore, might be such by-law, requisition, usage, or understanding, the plaintiff would not be bound thereby. He is bound only by the policy itself ; that is, to furnish " due proof" of the death. If the defendants would have bound the plaintiff by their by-laws, &c. they should have made the policj', in terms, subject to those by-laws, &c., or in some way have made them a part of the contract contained in the policy. Kingsley v. New. England Mutual Fire Ins. Co. 8 Gush. 393, 403. The question, what is due proof, ,is to be determined by the court, according to the rules of evidence, and not by the defend- ants nor by any other life insurance companies. We are not in- formed what proof of death was presented to the defendants, and it is not necessary that we should know ; for it is conceded by them that the proof was sufficient, if the physician's certificate was not a requisite part of it. The usage of the defendants to require certain specified proof of death has been relied on in argument. In the first place, no such usage is duly shown. In the next place, if it were so shown, there is no pretence that the plaintiflF had any notice of it when he took the policy. He therefore, for that reason, if for no other, could not be bound by it. 2. No authority was cited which sustains the position that An- drew Taylor, by taking passage as a steerage passenger, failed to conform to the license given to him by the defendants, to pass by sea in first-class decked vessels, of which the steamship in which MARCH, 1860. 191 Forbes v. American Mutual Life Insurance Company. he took passage is admitted to be one. And the court do not know, judicially or otherwise, that life is less safe in the steerage than in any other apartment of a vessel. Judgment for the plaintiff. Note. — The case of Woodfin v. AshevUle Mutual Ins. Co. post,62G,iB in conflict with this case respecting notice of death. Robert B. Forbes vs. American Mutual Life Insurance Company. (15 Gray, 249. Supreme Court, March, 1860.) Insurable interest. — The objection of a want of interest cannot be relied upon unless ex- pressly made in the pleadings. Residence. License. — An insurance upon the life of S. as a resident of Valparaiso, gave him a right to reside there without further permission ; and an indorsement upon the policy of a permission to reside there upon the payment of a sum not named, leaving a blank for the amount, and delivered intentionally in that condition, cannot operate to vitiate the policy, though no additional sum was paid. And a sum paid by the agent of the assured without authority, and upon no contract by the parties, for permission of his principal to reside abroad, will not have the eSet^to change the contract already made, and the money so paid may be recovered. ^ Conditions subsequent in a policy of life assurance need not be set out by the plaintiff in his declaration. The contest in this case arose mainly upon the permit indorsed upon the policy of the assured, which was as follows : " Sea and climate risk, No. 3264. f 5,000. In consideration of dollars, the receipt of which is acknowledged, permission is hereby given Mr. Thomas T. Smith, insured herein, to voyage to and reside at Valparaiso in Chili, South America, for one year from the date hereof, without prejudice to the within policy ; and to continue said residence thereafter, without prejudice to said policy, on the pay- ment of dollars annually, in addition to the regular premium, while he continues said residence. The insured is also permitted to return to the United States and voyage back to Valparaiso during the continuance of this policy, on the payment of $25 for each and every voyage." The policy described the insured as a resident of Valparaiso, Chili. He paid the regular premium, but no additional sum under the said permit. A further permit was issued by the company after Smith's de- parture and accepted by the plaintiff, but without the authority of the insured, which provided that on payment of $67.50 the insured 192 SUPREME COURT OF MASSACHUSETTS. Forbes v. American Mutual Life Insurance Company. should have permission "to voyage to and from the United States and Chili, South America, and reside in Chili." And " this per- mit is to take effect when its conditions are complied with, and this permit is countersigned by Oliver Brewster, actuary, Boston." , If was contended that this latter permit became part of the contract, and not having been complied with, the insurance was vitiated. 0. B. Goodrich ^ H. A. Scudder, for the defendants. S. Bartlett ^ F. W. Palfrey, for the plaintiff. Hoar, J. The question, what is such an interest in the life of another as will support a contract of insurance upon the life, is one to which a complete and satisfactory answer, resting upon sound principles, can hardly yet be said to have been given. It was fully discussed and considered in the recent case of Loomis v. Eagle Life ^ Health Ins. Co. 6 Gray, 396,^ and it is there said by the chief justice of this court that " perhaps it would be difficult to lay down any general rule as to the nature and amount of interest which the assured must have." As the premium is intended to be a precise equivalent for the risk taken, it would seem that the eori- tract is a just and equitable one whether any interest in the life exists or not ; and that the only essential inquiry is whether the object of the contract is such as to obviate the objections to a mere wager upon the chances of human life. In this case the policy was procured by Thomas T. Smith upon his own life, and the first payment of the premium upon it was made by him. It was made payable to the plaintiff, the husband of his sister, and the subsequent payments were made by. the plain- tiff as his agent ; bwt the promise of the company is to and with Smith. The policy appears to have been really, if not nominally^ for the benefit of Smith, and the interest of the plaintiff to be sim- ply that •of a trustee. Under such circumstances we think no question could have arisen as to the sufficiency of the interest, un- less on account of the conditions of insurance annexed to the pol- icy, by one of which it is stipulated that " policies made payable to creditors, or persons not belonging to the family of the person whose life is insured, are subject to proof of interest, and the com- pany will pay upon such policies no greater sum than the amount or value of such interest," unless a waiver of such proof is indorsed upon the policy. But while we are inclined to the opinion that 1 Ante, 175. MARCH, 1860. 193 Forbes v. American Mutual Life Insurance Company. even under this condition the plaintiff would be entitled to recover, we are relieved from the necessity of considering the point by the decisive fact that no such issue is raised by the pleadings. The defendants by their answer expressly admit their liability upon the policy, which they set forth, " in case the said Smith should die during the year 1854 without having violated the terms and con- ditions of said policy." They indeed add that they do not owe and are not bound to pay the sum claimed by the plaintiff; but proceed to say that they are not thus bound for certain specific reasons which they set forth in detail, and among these is not any allegation of a want of insurable interest, in the plaintiff. We think it clear, therefore, that the objection of the want of such an interest is not open to them, and that the plaintiff was not required to come to the trial prepared to prove it. But the ground of objection to the plaintiff's recovery, chiefly relied on by the defendants, is this : that Smith had no right under the contract to reside at Valparaiso without the payment of an ad- ditional premium, which was not paid for the year 1854, and that the policy thereby became void, and the liability of the company ceased. By the policy the life of Smith is insured as an inhabitant of Valparaiso, and in the application for insurance which is referred to by a proviso upon the policy, stating that " this policy is made and accepted in reference to the application and declarations made to this company, which are to be used and resorted to to explain and protect the rights of all the parties," his residence is declared to 'be at Valparaiso. It is also noticeable that there is in the policy and conditions of insurance no prohibition of travelling to or resid- ing in South America ; that no statement or declaration in the ap- plication shows that such a prohibition was in the contemplation of the parties ; and that if any restriction upon the liberty of the pei'son whose life was insured to reside or travel ■ anywhere at his pleasure, excepting in and to the places specifically enumerated in the printed proviso, was created under the contract, it must be derived by implication from the permission to travel to certain places named, or from the indorsement upon the policy. Such an implication would indeed be a reasonable one, because it is ob- vious that a permission to go to certain places named would be without reason or effect if the contract already allowed the person insured to go not only to those places but to any others. But we 13 194 SUPREME COURT OF MASSACHUSETTS. Forbes ». American Mutual Life Insurance Companj'. cannot think that such an imphed restriction, derived from a printed clause, should be allowed to control the direct meaning and pur- pose of the policy to be gathered from the written parts of that instrument. An insurance upon the life of Smith, as a resident of Valparaiso, for a premium agreed on, gave him a right to reside there without further permission or payment. The indorsement upon the policy of a permission to reside there upon the payment of a sum not named, leaving a blank for the amount not filled up, and delivered intentionally in that condition, cannot operate to deprive the party insured of a privilege for which he had already, in the completed parts of the instrument, contracted and paid. Treating the indorsement therefore as a part of the contract at the time the policy was delivered, we are of opinion that the plain- tiff was under no obligation to pay any sum for the privilege of residence at Valparaiso ; and this decision renders it unimportant to consider the effect of the letters which were offered in evidence, or to consider whether they would be admissible for any other purpose than to rebut any claim or proof by the defendants that the contract, as it was delivered, was not complete, or was intended to have its blanks filled according to some further arrangement. The further objection that the declaration should have set out the conditions of the insurance, and that these conditions constitute a variance between the contract offered in evidence and that declared on, cannot prevail, because they are conditions subsequent. While a breach of them would therefore operate as a bar to the plaintiff.'s recovery, their performance does not constitute a part of his cause of action. ^ The permit which was issued in January 1853 was not granted by the defendants in pursuance of any contract made by the par- ties, and is shown to have been accepted by the agent of the plain- tiff without authority from his principal to do any act to modify or change the contract already made, and under a mistake of fact. It cannot therefore be resorted to to diminish the privilege of foreign residence before granted, or to subject it to any new con- dition ; and the money, having been paid by mistake, may be re- covered back in this action. Judgment upon the verdict for the plaintiff. As to insurable interest, see Lord v. DM, ante, 154, and note. JANUARY, 1.862. 195 Dean v. American Mutual Life Insurance Company. Benjamin Dean et al. vs. Ameeican Mutual Life Insueance Company. (4 Allen, 96. Supreme Court, January, 1862.) Suicide. — A policy conditioned to be void in case the assured die by his own hand, is avoided by self-destruction, knowingly and intentionally caused during a state of insanity. Contract upon a life policy conditioned to be void if the as- sured " shall die by his own hand, (fr in consequence of a duel, or by the hands of justice, or in the known violation of any state, national, or provincial law." The assured, J. H. Cheney, came to his death by cutting his throat with a razor. Plaintiffs offered to prove that the death was caused during a state of insanity. J. Q-. Abbott ^ B. Dean, for the plaintiffs. 1. The whole object of taking the policy was to provide for a pecuniary payment in case of death by disease or accident. The proviso was intended to meet the case of a voluntary self-destruc- tion by a reasonable being. Its object was to bring the fact dis- tinctly to the attention of the assured, that if he should take his life voluntarily, while in possession of his reason, his representa- tives would lose the benefit of the policy. 2. The disease of insanity was as much the cause of Cheney's death, as disease in a case of fever. It is not correct to say that death was caused by his hand. The cause of death was disease. Under the construc- tion contended for by the defendants, that intelligent will is not required, the policy would be void if his hand were guided by the superior force of another. In the present case the will was over- powered by disease ; in the case supposed, by superior force from without. In neither case is it his act. The rule would be the same, if in a fit of somnambulism he had thrown himself from a window, or met his death by the accidental discharge of a pistol in his own hands. The true meaning and construction of the proviso is this : the contract is made with an intelligent and reasonable being, who is responsible for his acts ; and it cannot be avoided except by the act of the same reasonable and responsible being. 3. This appears also from the context. The other conditions of forfeiture depend on a criminal violation of law. 4. The point has been decided in favor of the plaintiffs in New York. Breasted v. 196 SUPREME COURT OF MASSACHUSETTS. Dean v. American Mutaal Life Insurance Company. . Farmers' Loan ^ Trust Co. 4 Hill, (N. Y.) 74, [post, 341.J In the English cases, where the contrary doctrine has been held, the opinions were not unanimous, and were strictly confined to the precise cases presented. 0. B. Goodrich S^ H. A. Scudder, for the defendants, cited, in addition to cases cited in the opinion, Addison on Con. 600 ; Amicable Society v. Bolland, 4.Bligh, (N. S.) 194, and 2 Dow & Clark, 1 ; Oooh v. Black, 1 Hare, 390 ; Moore v. Woolsey, 4 El. & Bl. 244 ; Vyse v. Wakefield, 6 Mees. & Wels. 442. BiGELOw, C. J. There call be no doubt that the facts agreed by the parties concerning the mode in which the assured destroyed his own life bring this case within the strict letter of the proviso in the policy, by which it was stipulated that it should be void and of no effect if the assured should " die by his own hand." The sin- gle question, therefore, which we have to determine is, whether, on the well settled principles applicable to the construction of con- tracts, we can so interpret the language of the policy as to add to the proviso words of qualification and limitation by which the nat- ural import of the terms used by the parties to express their mean- ing, will be so modified and restricted that the case will be taken out of the proviso, and the policy be held valid and binding on the defendants. In other words, the inquiry is, whether the proviso can be so read that the policy was to be void in case the assured should die by his own hand, he being sane when the suicide was committed. If these or equivalent words cannot be added to the proviso, or if it cannot be held that they are necessarily implied, then it must follow that the language used is to have its legitimate and ordinary signification, by which it is clear that the policy is void. In considering this question, we are relieved of one difficulty which has embarrassed the discussion of the same subject in other cases. If the proviso had excepted from the policy death by " suicide," it would have been open to the plaintiffs to contend that this word was to have a strict technical definition, as meaning in a legal sense an act of criminal self-destruction, to which is necessarily attached the moral responsibility of taking one's life voluntarily, and in the fiill exercise of sound reason and discretion. But the language of the proviso is not necessarily limited by the mere force of its terms. The words used are of the most compre- hensive character, and are sufficiently broad to include every act of JANUARY, 1862. . 197 Dean v. Americaa Mutual Life Insurance Company. self-destruction, however caused, without regard to the moral con- dition of the mind of the assured, or his legal responsibility for his acts. Applying, then, the first and leading rule by which the construc- tion of contracts is regulated and governed, we are to inquire what is a reasonable interpretation of this clause according to the intent of the parties. It certainly is very difficult to maintain, the propo- sition that, where parties reduce their contract to writing, and put their stipulations into clear and unambiguous language, they in- tended to agree to anything different from that which is plainly expressed by the terms used. It is, however, to be assumed that every part of a contract is to be construed with reference to the subject-matter to which it relates, and with such limitations and qualifications of general words and phrases as properly arise and grow out of the nature of the agreement in which they are found. Giving full force and effect to this rule of interpretation, we are unable to see that there is anything unreasonable or inconsistent with the general purpose which the parties had in view in making and accepting the policy, in a clause which excepts from the risks assumed thereby the death of the assured by his own hand, irre- spective of the condition of his mind, as affecting his moral and legal responsibility at the time the act of self-destruction was con- summated. Every insurer, in assuming a risk, imposes certain restrictions and conditions upon his liability. Nothing is more common than the insertion, in policies of insurance, of exceptions by which certain kinds or classes of hazards are taken out of the general risk, which the insurer is willing to incur. Especially is this true in regard to losses which may arise or grow out of an act of the party insured. Such exceptions are founded on the reason- able assumption that the hazard is increased when the insurance extends to the consequences which may flow from the acts of the person who is to receive a benefit to himself or confer one on others by the happening of a loss within the terms of the policy. Where a party procures a policy on his life, payable to his wife and children, he contemplates that, in the event of his death, the sum insured will enure directly to their benefit. So far as a desire to provide in that contingency for the welfare and comfort of those dependent on him can operate on his mind, he is open to the temptation of a motive to accelerate a claim for a loss under the policy by an act of self-destruction. Against an increase of the 198 SUPREME COURT OF MASSACHUSETTS. Dean v. American Mutual Life Insurance Company. risk arising from such a cause, it is one of the objects of the proviso in question to protect the insurers. Although the assured can de- rive no pecuniary advantage to himself by hastening his own death, he may have a motive to take his own life, and thus to create a claim under the policy, in order to confer a benefit on those who, in the event of his death, will be entitled to receive the sum insured on his life. Unless, then, we can say that such a motive cannot oper- ate on a mind diseased, we cannot restrict the words of the proviso so as to except from the risk covered by the policy only the case of criminal suicide, where the assured was in a condition to be held legally and morally responsible for his acts. It certainly would be contrary to experience to affirm that an insane person cannot be influenced and governed in his actions by the ordinary motives which operate on the human mind. Doubtless there may be cases of delirium or raving madness where the body acts only from frenzy or blind impulse, as there are cases of idiocy or the decay of mental power, in which it acts only from the pi'omptings of the lowest animal instincts. But in the great majority of cases where reason has lost its legitimate control, and the power of exercising a sound and healthy volition is lost, the mind still retains sufficient power to supplj'- motives and exert a direct and essential control over the actions. In such cases, the effect of the disease often is to give undue prominence to surrounding circumstances and events, and, by exaggerating their immediate effects or future conse- quences, to furnish incitement to acts of violence and folly. A person may be insane, entirely incapable of distinguishing between right and wrong, and without any just sense of moral responsibil- ity, and yet retain sufficient powers of mind and reason to act with premeditation, to understand and contemplate the nature and consequences of his own conduct, and to intend the result which his acts are calculated to produce. Insanity does not necessarily operate to deprive its subjects of their hopes and fears, or the other mental emotions which agitate and influence the minds of persons in the full possession of their faculties. On the con- trary, its effect often is to stimulate certain powers to extraofdi- nary and unhealthy action, and thus to overwhelm and destroy the due influence and control of the reason and judgment. Take an illustration. A man may labor under the insane delusion that he is coming to want, and that those who look to him for support will be subjected to the ills of extreme poverty. The natural effect JANUARY, 1862. 199 Dean i>. American Mutual Life Insurance Company. of this species of insanity is to create great mental depression, under the influence of which the sufferer, with a view to avoid the evils and distress which he imagines to he impending over himself and those who are dependent upon him for support, is impelled to destroy his own life. In such a case, suicide is the wilful and vol- untary act of a person who understands its nature, and intends by it to accomplish the result of self-destruction. He may have acted from an insane impulse, which prevented him from appreciating the moral consequences of suicide ; but nevertheless he may have fully comprehended the physical effect of the means which he used to take his own life, and the consequences which might ensue to others from the suicidal act. It is against risks of this nature — the de- struction of life by the voluntary and intentional act of the party assured — that the exception in fhe proviso is intended to protect the insurers. The moral responsibility for the act does not affect the nature of the hazard. The object is to guard against loss aris- ing from a particular mode of death. The oausa causans, the mo- tive or influence which guided or controlled the will of the party in committing the act, are immaterial, as affecting the risk which the insurers intended to except from the policy. This view is entirely consistent with tlie nature of the contract. It is the ordinary case of an exception of a risk which would otherwise fall within the general terms of the policy. These comprehended death by disease, either of the body or brain, from whatever cause arising. The proviso exempts the insurers from liability when life is destroyed by the act of the party insured, although it may be distinctly traced as the result of a diseased mind. It may well be that insurers would be willing to assume the risk of the results flowing from all diseases of the body, producing death by the operation of physical causes, and yet deem it expedient to avoid the hazards of mental disorder, in its effects on the will of the assured, whether it originated in bodily disease, or arose from external circumstances, or was produced by a want of moral and religious principle. It was urged very strongly by the learned counsel for the plain- stiffs, that this view of the construction of the contract was open to the fatal objection, that it would necessarily lead to the absurd conclusion, that death occasioned by inevitable accident or ovei powering force, or in a fit of delirium or frenzy, if the proximate and immediate cause was the hand of the person insured, would 200 SUPREME COURT OF MASSACHUSETTS. Dean v. American Mutual Life Insurance Company. be excepted from the risks assumed by the defendants. But this objection is sufficiently answered by the obvious suggestion, that such an interpretation, although within the literal terms of the proviso, would be contrary to a reasonable intent, as derived from the subject matter of the contract. An argument having for its basis a reductio ad absurdum is not entitled to much weight when it is necessary to ascertain the intention of the parties to a contract, and to conform to that intention in giving an interpretation to the language used. Indeed, when it becomes necessary, (as the case on the part of the plaintiffs requires,) to desert the literal import of terms adopted by parties to express their meaning, as it cannot be reasonably supposed that they intended to enter into stipulations which would be unreasonable or absurd, all conclusions which tend to establish such a result are necessarily excluded. The question in such cases is not how far can the literal meaning of words be extended, but what is a reasonable limitation and qualification of them, having regard to the nature of the contract and the objects intended to be accomplished by it. Applying this principle to the present proviso, and assuming that the plaintiffs are right in their position, that the words used are not to be interpreted literally, it would seem to be reasonable to hold that they were intended to except from the policy all cases of death caused by the voluntary act of the assured, when his deed of self-destruction was the result of intention, by a person knowing the nature and consequences of the act, although it may have been done under an insane delusion, which rendered the party morally and legally irresponsible, incapa- ble of distinguishing between* right and wrong, and which, by dis- turbing his reason and judgment, impelled him to its commission. If the suicide was an act of volition, however excited or impelled, it may in a just sense be said that he died by his own hand. But beyond this it would not be reasonable to extend the meaning of the proviso. If the death was caused by accident, by superior and overwhelming force, in the madness of delirium, or under any com- bination of circumstances from which it may be fairly inferred that the act of self-destruction was not the result of the will or inten- tion of the party adapting means to the end, and contemplating the physical nature and effects of the act, then it may be justly held' to be a loss not excepted, within the meaning of the proviso. A party cannot be said to die by his own hand in the sense in which those words are used in the poUcy, whose self-destruction does not JANUARY, 1862. £G1 Dean v. American Mutual Life Insurance Company. proceed from the exercise of an act of volition, but is the result of a blind impulse, of mistake or accident, or of other circumstances over which the will can exercise no control. In seeking to ascertain the intention of parties, some weight is to be given to the practical results which would be likely to follow from the adoption of a particular construction of the words of a contract. It is reasonable to suppose that these were in contem- plation of the insurers at the time the policy was issued. Cer- tainly it is fair to infer that they intended to put some material lim- itations upon their liability by the insertion of this proviso. But if it is to be construed as including only cases of criminal self-destruc- tion, it would rarely, if ever, effect this object. Those familiar with the business of insurance, and with the results of actions on policies of insurance in courts of law, know how difficult it is to es- tablish a case of exemption from liability under an exception in a policy, where it depends on a question of fact to be decided by the verdict of a jury. If this is true in regard to ordinary claims under policies, it is obvious that the difficulty would be greatly enhanced in cases like the present, where it would be sufficient, in order to take a case out of the operation of the proviso, to prove that self-destruction was the result of insanity. It would not be hazardous to affirm that, in all cases where such an issue was to be determined by a jury between an insurance company and the rep- resentatives of the deceased, the act of suicide would be taken as proof of insanity. Such considerations were not likely to have es- caped the attention of practical men in framing this general proviso ; and, in a doubtful case of construction, they are not to be over- looked in giving an interpretation to the words used by them. The learned counsel for the plaintiffs have insisted with great force on an argument drawn from the context, to show that the proviso was intended to embrace only a case of criminal self-de- struction by a reasonable and responsible being. But it seems to us that the maxim noscitur a sociis, on which they rely, does not aid the construction for which they contend. The material part of the clause is, that the policy is to be void if the assured " shall die by his own hand, or in consequence of a duel, or by the hands of justice, or in the known violation of any state, national, or provin- cial law." Now the first and most obvious consideration suggested by other parts of this clause is, that in enumerating the causes of death which shall not be deemed to be within the risks covered by 202 SUPREME COURT OF MASSACHUSETTS. Dean v, Americao Hutaal Life Insurance Companr. the policy, one of them is in terms made to depend on the existence of a criminal intention. It is a " known " violation of law which is to avoid the policy. This tends- very strongly to show that where an act producing death may be either innocent or criminal, if it is intended to except only such as involves a guilty intent, it is care- fully so expressed in the proviso. The inference is very strong that, if they designed to confine Jihe exception in question to cases of criminal suicide, it would have been so provided in explicit terms. So far, the argument drawn from the context does not sup- port the plaintiffs' claim. Take then another of the causes of death* death in a duel, enumerated in the proviso. It seems to us to be a petitio principii to assume that death in consequence of a duel necessarily implies an act for which the party would be criminally responsible. Why is not this part of the proviso open to the same argument as that which is urged in regard to the clause relating to self-destruction ? A duel may be fought by a party acting under duress, or impelled thereto by an insane delusion, which might blind his moral perceptions and render him legally irresponsible. If so, then the same answer to a defence set up against a claim under the policy would be open under this clause, as the one now urged in behalf of the plaintiffs ; and the argument founded on the assumption that a forfeiture under this part of the proviso neces- sariljr involves a criminal violation of law, falls to the ground. Therefore the inference that a guilty intention is communicated from this branch of the proviso to that relating to death by the act of the assured seems to us to be unfounded. The only remaining claus'e is that which provides for the case of death by the hands of justice. This undoubtedly implies that the person insured has been found guilty of a criminal act by a judicial tribunal according to the established forms of law. But it is not correct to say that it involves the Sxistence of a criminal intent, because it might be shown that the conviction of the assured was erroneous, and that he was in fact innocent of the crime for which he suffered the pen- alty of death. So far, therefore, as any argument can be justly drawn from the connection in which the words as to self-destruc- tion stand in relation to other parts of the proviso, it leads to the conclusion that it was not solely death occasioned by acts of the assured involving criminal intent or a wilful violation of law by a person morally and legally responsible, which was intended to be excepted from the risks assumed by the insurers ; but that, with JANUARY, 1862. 203 Dean v. American. Mutual Life Insurance Company. the exception of death in a known violation of law, the proviso embraces all cases where life is taken in consequence of the causes specified, without regard to the question, whether at the time the assured was amenable for his act, either inforo conscientice or in the tribunals of justice. It may be added that a departure from the literal terms of a contract is always attended with great difficulty and danger, be- cause it is apt to lead to great latitude of construction and to give uncertainty to the language which the parties have adopted to express their meaning. It certainly never should be extended beyond the clear intent of the parties, as derived from other parts of the agreement, or the subject matter to which the contract re- lates. This position may be illustrated by reference to another part of the policy declared on. The proviso which precedes that on which the present question has arisen contains a stipulation that the policj' shall be void if the assured, without the consent of the defendants in writing, shall during certain portions of the year visit the more southerly parts of the United States, or shall pass without the settled limits of the United States. If the assured in a fit of insanity should wander from his home and go within the prohibited territory, would the policy be void ? If he was taken prisoner and went thither with his captors, would he lose his claims under the policy ? These and similar questions, which might arise under other clauses of the policy, seem to show that it is more safe to adhere to the strict letter of the contract, and to hold parties to the salutary rule which requires them to express in clear and unam- biguous terms any exceptions which they desire to engraft on the general words of a contract. So far as the adjudicated cases bear on the question which we have considered in the present case, the weight of authority is against the claim of the plaintiffs under the policy. ' In the case of BorradaiU v. Hunter, 5 Man. & Gr. 639,^ where the policy con- tained a proviso very similar to that found in the policy declared on, it was held that the policy was avoided, as the proviso included all cases of voluntary self-destruction, and was not limited to acts of criminal suicide. From this opinion there was a dissent by the chief justice. In Olift v. Schwahe, 3 C. B. 437^^ a similar decision was made by the exchequer chamber, two of the judges dissenting. These cases seem now to be regarded as having settled the law in 1 Decided in 1843. 2 Decided in 1846. 204 SUPREME COURT OF MASSACHUSETTS. Dean ». American Mutaal Life Insurance Company. England in conformity with the opinion of the majority of the judges. Dvfaw v. Professional Life Ass. Co. 25 Beav. 602.^ A different opinion was arrived at in Breasted v. Farmers'' Loan and Trust Co. 4 Hill, (N. Y.) 74, and 4 Selden, 299,2 from which, however, several of the most learned justices of the court of ap- peals dissented. In 1 Phil. Ins. § 895, it is stated that any mental derangement sufficient to exonerate a party from a contract would render a per- son incapable of occasioning the forfeiture of a policy under a clause like the one in question. In support of this proposition no author- ities are cited except the cases above named of Borradaile v. Hun- ter and Breasted v. Farmers' Loan ^ Trust Co. as reported in 4 Hill. If it is intended by it to assert that the principle, on which a contract made with an insane person is held to be void as to him, applies to this clause so as to exclude from its operation all cases of self-destruction occasioned by insanity, it seems to us that the position is untenable. The reason for the rule which exempts a person from liability on a contract into which he entered when insane is, that he is not deemed to have been capable of giving an intelligent assent to its terms. But this rule is not applicable, where a contract is made with a jserson in the full possession of his faculties, and he subsequently, in a fit of insanity, commits a breach of it or incurs a penalty under it. He is then bound by it. His mind and will have assented to it. No subsequent mental incapa- city will absolve him from his responsibility on it, unless from its nature it implies the continued possession of reason and judgment and the action of an intelligent will. A party may be liable on an unexecuted contract, after he has lost the use of his mental facul- ties, as he may be held responsible eiviliter for his torts. Bagster V. Portsmouth, 7 Dowl. & R. 614. Weaver v. Ward, Hob. 184. Cross V. Andrews, Cro. Eliz. 622. To say that insanity exonerates a party from a forfeiture under such a proviso in a policy, is to assume that this was the intention of the parties when the contract of in- surance was entered into. But if such was not the intention, then it follows that the assured gave an intelligent assent to a contract, by which he stipulated that if he took his own life voluntarily, knowing the consequences of his act, he would thereby work a for- feiture of his claim under the policy, although he may have acted under the influence of insanity in committing the suicidal act. So 1 Decided in* 1868. a Decided in 1863. Pos<, 341, 343. JANUARY, 1862. 205 Dean «. American Mutual Life Insurance Company. that, after all, we are brought back to the inquiry, Avhat was the intention of the parties to the contract, in order to ascertain the true construction of the proviso. The result to which we have come, after a careful and deliberate consideration of the question, during which we have felt most sen- sibly the very great difficulties and embarrassments which surround the subject, is, that the plaintiffs are not entitled to recover. The facts agreed by the parties concerning the mode in which the plain- tiffs' intestate took his own life leave no room for doubt that self- destruction was intended by him, he having sufficient capacity at the time to understand the nature of the act which he was about to commit, and the consequences which would result from it. Such being the fact, it is wholly immaterial to the present case that he was impelled thereto by insanity, which impaired his sense of moral responsibility, and rendered him to a certain extent irresponsible for his actions. Plaintiffs nonsuit. Note. — See Cooper v. Mass. Mut. Life Ins. Co , post, 758 ; Nimick v. Mut. Benefit Life Ins. Co., post, 689, and note ; Eastabrook v. Union Mut. Life Ins. Co., ante, 139. . In Borradaile v. Hunter, (a. D. 1843,) cited by the court, the jury found that the deceased leaped from a bridge into the Thames voluntarily, knowing that the result of his act would be death, and intending that result; but that at the time he did the act he was not in a state of mind to distinguish good and evil. Held, by Coltman, Erskine, and Maule, JJ., that if the deceased was laboring under no delusion as to the physical eifect of the act which he was committing ; if he knew that it was water into which he was about to throw himself; that if in so throwing himself off the bridge he knew that he would be drowned ; then the subsequent finding, that at the time the act was committed the deceased could not distinguish between good and evil, though it cleared the act from being felonious, yet did not take it out of the proviso relieving the company from liability. Tindal, C. J., dissenting, thought that the finding of the jury had taken the act out of the proviso ; and that on the maxim noscitur a sociis, the proviso meant an act of felonious self-destruction. (As to the application of this maxim in cases of death in "known violation of law," see Harper y. Phoenix Ins. Co. postjSOO; Overton V.St. Louis Mut. Life Ins. Co. post, 31S; Cluff v. Mut. Benefit Life Ins Co. post, 208.) In the case of Horn v. The Anglo-Australian, Sfc. Ins. Co. 7 Jur. (N. S.) 673, (1861,) it was held that a policy of insurance was not avoided by the suicide of the insured while in a state of insanity. But in that case there was no pro- vision rendering the policy void if the insured should die by his own hand. In the recent English case of White v. British Empire, Sfc. Ass. Co. 7 L. R. Eq. Cas. 394, (1868,) the company had advanced money to W. on mortgage, and on his effecting a life policy in their ofiice for the amount of the loan, which 206 SUPREME COURT OF MASSACHUSETTS. Swan V. Snow. ■was deposited with the company as collateral security. The policy contained a condition that if the assured should die by his own hand it should be Toid, ex- cept to the extent of any honajide interest therein which at the time of such death should be vested in any other person. W. committed suicide under tem- porary insanity, while the policy was in the hands of the company. Held, that the poUcy was valid to the extent of the mortgage debt due to them at the death of the insured. To the same effect is Moore v. Woolsey, 28 Eng. L. & Eq. 248, (1854.) See also Hartmann v. Keystone Ins.' Co. post, 649. Mart C. Swan vs. Charles A. Snow. (11 Allen, 224. Supreme Court, October, 1865.) Inevrance received by administrator. — The administrator of tlie assured who had effected insurance upon his life for the benefit of his wife, whose death preceded bis own, and who left children, has no interest in the insurance money under the statutes of this state, and will hold the same for the benefit of the children. Appeal from the decree of the judge of probate dismissing the petition of the administrator de bonis non of the estate of Horace E. Swan for a decree of distribution of the estate of Lydia W. S. Swan. The facts are stated in the opinion. I. H. Wright, for the appellant. J. Weston, Jr., for the appellee. Gray, J. On the 11th of October, 1851, the Union Mutual Life Insurance Company, incorporated by a statute of the State of Maine of 1848, delivered at Fall River in this commonwealth to Lydia "W. S. Swan, the first wife of Horace E. Swan, a pohcy of in- surance for $2,000 on his life, in consideration of the sum of $52.80 to them paid by her, and of a premium of like amount to be paid annually during the continuance of the policy, and therein prom- ised to pay the sum insui-ed to her, her executors, administrators, or assigns, within ninety days after due notice and proof of his death. She died in 1857, leaving her husband and two minor children by him. These children still survive. The husband paid the subsequent annual premiums during his life, married a second wife in 1861, and died in 1863, leaving no other children. The amount of the policy was afterwards paid by the insurance com- pany to the administrator of the estate of the first wife, and is the only property in his hands for distribution. The second wife, hav- ing been appointed administrator of the husband's estate, presented a petition to the probate court in this county, praying for a decree OCTOBER, 1865. 207 Swan V. Snow. of distribution of that amount. The petition was dismissed by the judge of probate, and she appealed to this court. By the ninth section of the charter granted to this insurance company by the legislature of the State of Maine, " the said com- pany may issue policies of insurance upon the life of any person, expressed to be for the benefit of any married woman, widow, minor, or minors, and the same shall inure to the sole use and benefit of such person or persons so expressed as aforesaid, inde- pendently of the one whose life may be thus insured, as well as of his or her creditors, and of the creditors of such married woman, widow, minor, or minors ; " with a proviso which does not affect this case. By the Massachusetts St. of 1844, c. 82, § 1, which was in force when this policy was made, " any policy of insurance made by any insurance company on the life of any person, expressed to be for the benefit of a married woman, whether the same be effected by herself or her husband, or by any other person on her behalf, shall inure to her separate use and benefit, and that of her children, if any, independently of her husband and of his creditors and repre- sentatives, and also independently of any other person effecting the same in her behalf, his creditors and representatives," and a trus- tee may be appointed to hold and manage her interest in the pol- icy. This provision has been substantially reenacted in the later statutes. Sts. 1854, c. 453, § 28 ; 1856, c. 252, § 42. Gen. Sts. c. 58, § 62. This statement of the facts of the case, and of the provisions of the statutes, disposes of this appeal. The policy in question was effected by and issued to the first wife, and expressed on its face to be for her sole and separate use and benefit. It was not payable until after the husband's death. The payment of premiums by him after her death did not make it his property. No special trus- tee having been appointed to hold and manage her interest in the policy, it vested from the time of her death in the administrator of her estate, for the benefit of her children. Neither by the terms of the policy itself, nor by the charter from the legislature of Maine, nor by the statutes of this commonwealth, can the husband or the administratrix of his estate claim any property in the pohcy. Decree affirmed. See Gould v. Emerson, post, 258 ; Kniekerboeker Life Ins. Co. v. Weitg,post, 261. 208 SUPEEME COURT OF MASSACHUSETTS. Cliiff V. Mutual Benefit Life Insurauce Company. Chaelotte C. Cluff vs. Mutual Benefit Life Insukance Company. (13 Allen, 308. Supreme Court, November, 1866.) Death in known violalion of law. — If a policj' of life insurance contains a clause providing that tlie policy shall be void in case the insured shall die in the known violation of any law of the states, or of the United States, or of any country which he may be permitted under the policy to visit or reside in, the company mUst prove, in order to avoid the policy on this ground, that he died while engaged in a voluntary criminal act, known by hirn at the time to be a crime against the laws of such state or country. But those acts which are criminal by the common law and the laws of all civilized countries will be presumed to be criminal by the laws of the states of this Union, and he will also be presumed to have known that they are so. Wkat the company must prove. — If, in an action upon such policy, there is evidence tending to show that the insured was killed by being shot while engaged in the commission of a robbery and assault and batteiy, and it is in dispute whether, if he had been so engaged, he had desisted therefrom, it must appear, in order to exonerate the company from liability, that such criminal act was not so far completed as to render the shooting a new and dis- tinct event, rather than a mere continuation of the'original afii-ay, and that the death was in consequence of the crime of the insured; but it need not be proved that the insured knew or had reason to believe that his criminal act would or might expose his life to danger. Contract upon a policy of life insurance, by which the defend- ants insured the life of Matthew J. Cluff, the plaintiff's husband, in the sum of $3,000, payable to the plaintiff, or, if she should die before him, to their children. The policy contained the following clause : " Or in case he " (the insured) " shall die by his own hand, in or in consequence of a duel, or by reason of intemperance from the use of intoxicating liquors, or by the hands of justice, or in the known violation of any law of these states, or of the United States, or of the said provinces, or of any other country which he may be permitted under this policy to visit or reside in, this policy shaU be void, null, and of no effect." At the trial in the superior court, at April term, 1865, before Brigham, J., the plaintiff proved that she duly notified the de- fendants of her husband's death, and introduced no othei- evidence except two depositions, the material portions of which were as fol- lows: Frank Bugbee, a physician, of the parish of Ascension and State of Louisiana, testified that Cluff was killed on the 25th of February 1864, on the Doyle plantation in that parish ; and on cross-exam- ination he answered thus : 1. " He died from a pistol shot wound, fired from the hands of William Cox. Mr. Cluff had been away from his home for a NOVEMBER, 1866. 209 , Cluff V. Mutual Benefit Life Insurance Company. couple of days before the day of his death, and returned about four o'clock in the afternoon. Shortly after his return he and I went in company to the Doyle plantation. We were sitting on our horses, on the levee, when William Cox, a boy, drove along with a load of water. Mr. Cluff asked me who that boy was. I tbld him it was a Cox boy. He asked the boy when they were going to leave the place. The boy answered, they were going soon. Mr. Cluff asked the boy when they were going to pay the bill. The boy answered, ' they were not going to pay it all.' Mr. Cluff said, ' I •will take your horse then.' The boy dared him to do it, and to ' try it then. Mr. Cluff then went unhitching the horse from the wagon. After having partly unhitched, he tried to get the reins or ropes from the boy. The boy then got down from the wagon, by the side of Cluff. Cluff then took a small penknife to cut the ropes. The boy said ' Don't do that.' Mr. Cluff then got the ropes. The boy then ran about three rods, drew a pistol, fired at Mr. Cluff, and shot him in the right side between the fifth and sixth ribs. The boy then cocked his pistol again, but did not fire. Mr. Cluff said to me, ' He has hit me^ doctor,' and never spoke afterwards, and died immediately." 2. " Cluff was in the act of taking the horses from the wagon in which the boy who killed him was. He had not taken any other property in his control." 3. " Mr. Cluff did not assault said boy otherwise than by unhitching his horses. He did not, beat him, nor did he threaten him, just before he was shot, only to the taking of his horses." 4. " The bill Cluff talked of was a bill for feed for the horses and cattle of the Coxes, used by them from the plantation of which said Cluff was the lessee." 5. " He [Cox] was, as near as I could guess, from sixteen to eighteen years of age. He was, as near as I could say, about five feet three inches high, and weighing about one hundred and ten pounds." The witness also testified, in answer to further inquiries, that Cox was tried for the offence, and acquitted. William Scott, an engineer, of the parish of St. Charles, in Louisiana, after stating the fact of the killing, testified as follows : Int. 6. " I was present at the time he was shot. William Cox was coming along in a wagon, having a load of water. Dr. Bug- bee and Matthew J. Cluff were standing on the levee in front of the gate at Mount Houmo plantation. Cluff asked the doctor who that was that had the wagon. The doctor told him it was William 14 210 SUPREME COUET OF MASSACHUSETTS. Cluff V, Mutual Benefit Life Insurance Company. Cox. Mr. Cluff then called Cox and told him to halt with his wagon. When Cox halted his wagon, Mr. Cluff asked him when was be going to move. Cox said he had moved some of their things; and then Mr. Cluff asked him when he was going to finish moving. Cox said he did not know ; when he got ready. Then Mr. Cluff asked him where he was moving to. Cox said, to Baton Rouge. Mr. Cluff then asked Cox when was he going to pay the bill that he sent in to him. Cox said he was not going to pay it all. Mr. Cluff then said, ■' You are not going to pay it at all ? ' Cox said, ' No, sir, I am not.' Mr. Cluff then said, ' You have got some stock, hain't you, some horses and cattle ? ' Cox said, ' Yes.' Cluff then says, ' Well, if you won't pay the bill, I will take your horses and cattle to pay it.' Cox then said, ' You better get at it now.' Mr. Cluff got off the levee and went down on the road where Cox was, and unhitched both horses out of Cox's wagon, and then went up to the wagon, and told Cox to turn loose the lines. Cox said he would not do it. Then Mr. Cluff pulled out a little penknife about three inches long and started to cut the lines of the wagon,, and Cox then told Cluff not to cut his lines. Cluff then shut the knife up, and put it in his vest pocket, and went up to the horses' heads and started to untie the lines from the bridle. By that time Cox left the wagon and went up to the horses' heads where Cluff was, and then grabbed Mr. Cluff by the throat. Mr. Cluff then struck Cox and knocked him off from him, making Cox a sort of staggering on his all fours. Then Cox run off about three strides behind the wagon, and drew out his pistol and fired at Cluff. Mr. Cluff then dodged round the horses' heads to keep himself from getting the second fire. William Cox tried to get the second fire at him, until he heard Cluff halloa out to the doctor, saying he was struck. At this time William Cox whirled and run. Cluff then fell. The doctor run to him and fouild him dying, and so near gone he could not do him any good." Int. 6. " Cluff did assault Cox, after Cox caught him by the throat." On cross-examination, this witness added some statements, the material ones of which are as follows : 8. " Cluff did not threaten said Cox." 9. " Cluff's conduct and language were not violent and threatening towards said Cox." Int. 10. " When said Cluff was shot, was not tin open knife in his hand?" Ans. "No." 11. " Cox was about three; strides, say about three yards, behind the NOVEMBER, 1866. 211 Cluff V. Mutual Benefit Life Insurance Company. wagon, and said Cluff was at the horses' heads. Cluff was not facing Cox, nor approaching him with an open knife in his hand, nor approaching him at all." 12. " He was not then threatening him ; he was not saying anything." He further testified that he thought Cluff was about forty years old. The defendants offered no evidence ; and the judge instructed the jury that, upon the evidence, the defendants were liable as matter of law ; and a verdict was accordingly returned for the plaintiff. The defendants alleged exceptions. G. W. Loring, for the defendants. H. 0. Sutchins ^ A. S. Wheeler, for the plaintiff. By the Court. If it had been found by the jury that the in- sured, when he was shot, was engaged in a criminal violation of law, known by him to be so, and that such violation of law might have been reasonably expected to expose him to violence which might endanger life, the court are of opinion that the defence might have been sustained, and that there was evidence on this point, which should have been submitted to the jury. Whether the defence can be maintained upon any other ground, no opinion is given. Exceptions sustained. A new trial was accordingly had in the superior court, at April term, 1866, before Vose, J., at which the same evidence was intro- duced as before, with the addition that the defendants cited the Rev. Sts. of Louisiana, 1856, p. 160, § 1, as follows : " All crimes, offences, and misdemeanors shall be taken, intended, and construed according to and in conformity with the common law of England ; and the forms of indictment, (divested, however, of unnecessary prolixity,) the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the crimes, offences, and misdemeanors, changing what ought to be changed, shall be according to the common law, unless otherwise provided." The defendants requested the court to instruct the jury as fol- lows : "1. That the insured died in a known violation of the law, according to the terms of the pohcy, and that there was no suffi- cient evidence upon which a verdict could be found for the plaintiff. "2. That the insured's taking the horses from Cox forcibly, though under pretext or claim of collecting a debt, was robbery, which Cox could resist even with the use of a deadly weapon, and 212 SUPREME COURT OF MASSACHUSETTS. Cluff V. Mutual Benefit Lift Insurance Compahy. the insured's death, while taking the horses, rendered the pohcj on his Hfe, according to its terms, void, null, and of no effect. " 3. That the taking of the property of another forcibly, and without legal process, is a known violation of the law which is re- ferred to in the policy. " 4. That there is no evidence upon which the jury can find that Cluff, in taking the horses, was in the exercise of any legal right. That the burden was on the plaintiff to show that Cluff supposed he had a right to take the horses. " 5. That the policy is void, null, and of no effect, because the insured died while in the act of violating the law of the stat^ he was in, and the laws of every civilized community, in taking prop- erty to which he had not any legal claim. " 6. That, the dispute being brought on by the illegal act of the insured, the death of Cluff was in consequence of a known viola- tion of law." But the judge refused so to rule, and instructed the jury as fol- lows : " The burden of proving that the insured died in the known vio- lation of law is upon the defendants. The attempt to dispossess Cox of his horses, if not accompanied by threats or acts of violence upon Cox, committed or uttered for the purpose of compelling him by force and terror to surrender possession of them, would not con- stitute the crime of robbery, or an attempt at robbery ; and if this attempt to take the horses was made by Cluff under the honest though mistaken belief that he had a legal right to take them to Satisfy his claim, the act would not constitute either larceny or an attempt to commit that offence. In the absence of force or threats used by Cluff to induce Cox to give up the property, the acts of Cluff, if unlawful, constituted only a trespass or wrongful intermed- dling with the personal property of Cox, for which he might have his remedy for damages ; but they did not constitute by the com- mon law a criminal violation of la*, subject to the penalty of fine or imprisonment, and, in the absence of any evidence that they ■were a violation of any penal statute of Louisiana, there is no legal presumption that they had any such criminal character. If when he was shot he was engaged in a criminal violation of la*^ as in an attempt to commit the crime of robbery or larceny, or was com- mitting an assault upon the person of Cox, and he knew he was so engaged in a criminal violation of law, and such violation might NOVEMBER, 1866. 218 ClufF J), Mutual Benefit Life Insurance Company. reasonably have been expected to expose him to violence which might endanger life, then he died in known violation of law within the meaning of the policy, and the plaintiff canijot recover. If when shot he was not actually engaged in an assault upon Cox, but this assault had ceased, and he was not threatening to renew it, and Cox had withdrawn from his reach, and under these circum- stances Cox deliberately shot him, then he was not engaged m any criminal violation of law, so far as unlawful violence upon Cox was concerned, when he died." The jury returned a verdict for the plaintiff ; and the defendants alleged exceptions. Loring, for the defendants. The act of Cluff, in taking the prop- erty of Cox from him forcibly, for the purpose of indemnifying or redressing himself, was a violation of law. It is so in every civil- ized or half-civilized country. The provision of the policy is gen- eral, and is not confined to criminal violations of law, but includes all violations of law. All violations of law are more or less dan- gerous to life, and especially trespasses upon land, property, or the person ; and life insurance companies may well guard against the effect of them. And this clause was intended for all deaths arising from the insured's known violation of law. See Dean v. Amer. Mut. Life Ins. Co. 4 Allen, 96 ; \^ante, 195 ;] Borradaile v. Hunter, 5 Man. & Gr. 639 ; Amicable Society v. Bolland, 4 Bligh, (N. S.) 194, and 2 Dow & Clark, 1. The insured's violation of law is a known violation everywhere. Some violations of law, depending on I special statutes, are not known violations. But the presumption is conclusive that Cluff, being a responsible person, must have known that his act was 'in violation of law. Best on Presump- tions, 63, 127. duff's act amounted to robbery. 4 Bl. Com. 243, 244. The purpose of taking the horses is immaterial. The pretence that the family of Cox were indebted to him makes no differei'.ce in the character of the act. Being done by force, the act amounted to robbery. See 2 East P. C. c. 16, §§ 127, 128 ; 1 Russell on Crimes, (7th Amer. ed.) 880-882 ; Woodfall, Land, & Ten. (5th ed.) lib. 2, c. vii. § 10 ; Commonwealth v. Low, Thacher's Crim. Cas. 477. It is unnecessary to show that Cox was justified in killing Cluff, but the facts are sufficient even for that. 4 Bl. Com. 180. 1 Rus- sell on Crimes, 667, 668. 2 Bishop Crim. L. § 632, [4th ed.J If not a robbery, Cluff^s act was a trespass accompanied by a 214 SUPREME COURT OP MASSACHUSETTS. Cluff v. Mutual Benefit Life Insurance Company. breach of the peace, indictable at common law and in Louisiana. 1 Bishop Crim. L. § 397, [§ 977, 4th ed.] 3 Salk. 187. The instructions which were requested should have been given ; and the instructions which were given were incorrect. No threats or acts of violence upon Cox, committed or uttered for the purpose of compelling him by force or terror to surrender possession of them, were necessary to constitute robbery. In many cases rob- beries have been attended with great courtesy towards the robbed ; but if the person robbed parts with his property through terror, it is enough. Commonwealth v. JBumphries, 7 Mass. 242. There being no evidence to show that Cluff had an honest or mistaken belief that he had a legal right to take the horses, the instruction on this point was erroneous. The other instructions were too re- stricted. There is no clause in the policy requiring the violation of law to be criminal, or that it must reasonably be expected to endanger the life of the insured. Hutching ^ Wheeler, for the plaintiff. The witnesses gave dif- ferent accounts of the transaction, and the case was therefore a proper one to be submitted to the jury under instructions. This having been done, the only questions here are in reference to the instructions given and refused. The language of the policy must be construed to mean that, in order to avoid the policy, the insured must die in consequence of the known, intentional, guilty violation of the criminal law. There was no evidence of the laws of Louisiana, except of the general criminal laws of that state. In this case, clearly, taking the two depositions together, it can- not be contended that the evidence proved any criminal offence, unless robbery. To constitute robbery, there must be either actual violence to the person, or putting in fear. 4 Bl. Com. 242. 2 Bishop Crim. L. §§ 967-971, [§§ 1109 et seq., 4th ed.] The burden of proof was on the defendants to establish one of those alternatives. But the evidence negatives both of them. The most, therefore, that can be considered as proved is, that Cluff was com- mitting a trespass. But even if Cluff was committing a robbery. Cox had no right to shoot him for the purpose of preventing it ; 2 Bishop Crim. L. §§ 634, 658 [4th ed.] ; and therefore the death of Cluff was not the natural consequence of his act, as being legally justifiable ; nor can the taking of life be said to be a natural consequence of a mere NOVEMBER, 1866. 215 Cluff ». Mutual Benefit Life Insurance Company. trespass of the character of the act of ClufF. Therefore a death so resulting could not be in consequence of the violation of law. See Harper v. Phcenix Ins. Co. 19 Missouri, 506, [post, 300, 301.] The verdict of the Jury has decided that Cluff was not engaged in any criminal violation of law, unless the judge erred in defining robbery. FosTEK, J. In an action upon a policy of life insurance, the death of the insured having been shown, the defendant corporation relied, to avoid the contract, upon proof that a condition of the policy had been violated. To establish this defence the burden of proof was upon the company, notwithstanding the evidence tending to prove a forfeiture came from the plaintiff's own witnesses. The case could not be withdrawn from the jury, or a verdict for the defendant directed, because the defence rested upon an affirmative proposition which the company was bound to maintain. In the opinion of the court, the condition that* the policy should be null and void, among other grounds, in case the insured should die "by the hands of justice or in the known violation of any law " of the state or country where he resided or which he was per- mitted to visit, must be construed to refer to a voluntary criminal act on the part of the insured, known by him at the time to be a crime against the law of such state or country. Applying the maxim noscitur a soeiis, and remembering that such a clause ought not to be so interpreted as to work a forfeiture unless that intention is apparent, as well as from the natural import of the words "known violation of law," we conclude that they do not extend to mere trespasses against property or other infringements of civil laws to which no criminal consequences are attached. Robbery, larceny, and an assault upon the person of another, which are criminal offences by the common law and the laws of all civilized countries, must be presumed to be crimes against the laws of Louisiana. And the ordinary presumption applies to this case, that every person intelligent enough to be the subject of punish- ment must be presumed to know the criminal laws of the govern- ment under the jurisdiction of which he is found. The forcible taking of the horses from Cox, if done under an honest claim of right, however ill founded, would not constitute the crime of robbery or larceny ; because where a party sincerely, although erroneously, believes that he is legally justified in taking property, he is not guilty of the felonious intent which is an essen- 216 SUPREME COURT OF MASSACHUSETTS. Cluff 1). Mutual Benefit Life Insurance Company. tial ingredient of these crimes. Neither does the taking of horses from a vehicle to which they are harnessed amount to an assault upon the driver, unless accompanied by violence Or threats of vio- lence against him. An assault is an intentional attempt by force to injure the person of another. Commonwealth v. Ordway, 12 Cush. 270. A battery is committed whenever the menaced vio- lence of an assault is done in the least, degree to the person. Eithei an assault or battery would be a crime within the condition of the policy, unless justified as a measure of necessary self-defence. To apply these principles more closely to the circumstances of the homicide of Cluff, as narrated in the depositions which were the only evidence at 'the trial, we find in the account given by Bugbee no statement of any assault committed by Cluff, previous to the firing of the pistol. He appears only to have endeavored to unharness and take away the horses, under his claim to hold them as security for deljt, and neither to have done nor threatened any injury to the person of Cox. In the deposition of Scott, however, a different account of the transaction is given, according to which Cluff was guilty of an assault and battery. His attempt to take away the horses was forcibly resisted by Cox, who " grabbed him by the throat." Cluff then struck him, making him stagger. This blow does not appear to have been by way of self-defence, but in furtherance of the design to obtain the horses. It was therefore, according to the version of this witness, a criminal assault, even if Cox also com- mitted an assault by using undue violence in resisting the attempt of Cluff. But the jury may not believe the narrative of either deposition to be precisely accurate, and the question whether Cluff was guilty of an assault must be submitted to their consideration upon all the evidence which may be produced at another trial. Assuming that Cluff did commit a criminal assault, it may not necessarily follow that he died in the known violation of law. If he was shot while the assault continued, such would be the case. But if it had ceased, and Cluff was not threatening to renew it, and Cox had withdrawn out of his reach and then shot him, not in the course of the affray, but merely to revenge himself for what had been done, or to prevent the seizure of the horses, then at the time he was killed Cluff was not engaged in a known violation of the law, within the meaning of the policy. For he must have re- NOVEMBER, 1866, 217 Cluff 11. Mutual Benefit Life Insurance Company. ceived the mortal wound during and while engaged in the com- mission of a crime, not merely in consequence of it afterwards. But the jury, upon all the evidence, should consider whether, if he is proved to their satisfaction to have been once engaged in a crim- inal assault, he can be deemed to have desisted from it, while per- sisting continuously in the very act in the course of which the affray occurred. Their attention should be called distinctly to the question whether, if Cluff had committed a criminal assault, it was so far ended when he was fired upon that the fatal shot is to be regarded as a new and independent event, rather than a mere con- tinuation of the original affray. If ClufF committed a criminal assault on Cox, which the latter immediately returned by a fatal blow, then the death would have been occasioned in a known vio- lation of law, although the jury might believe that ClufP was not at the moment intending to commit any further assault. The ques- tion to be considered is, were the two acts — the assault by Cluif and the firing of the pistol by Cox — a part of one conflict for the possession of the horses, or had Cox abandoned his attempt to re- tain the custody of the horses, and had CluflF desisted from his assault ? Was the fight over, or had Cox merely retired to a more advantageous position ? In short, if Cluff" in the first instance did commit a criminal assault, and the firing of the pistol was a part of the same continuous transaction, then the condition Of the policy was violated. It must also appear that the death was caused or occasioned by or resulted from the criminal act. The loss of life must be con- nected with the crime as its consequence. By reason of the guilty act the death must have occurred, so that without its commission it. would not have taken place. In the opinion of a majority of the court, it is not, however, essential that the deceased should have known, or have had reason to believe that his criminal act would or might expose his life to danger. The fact that the crime actually did produce the death is sufficient to avoid the policy, without regard to the probability that such a result would ensue. Erasing from the instructions given by the learned judge at the trial the clause, " and he knew that such violation might reasona- bly have been expected to expose him to violence which might endanger life," the remainder appears to be correct, so far as re- ported. The jury should be instructed what acts constitute the 218 SUPREME COURT OF MASSACHUSETTS. Hodsdon v. Guardian Life Insurance Company. crimes of robbery, larceny, and assault upon the person. It is for them to decide whether, when shot, the deceased was engaged in committing or attempting either of these offences. If he had com- mitted an assault, it is likewise to be determined by them whether he had ceased and desisted therefrom. Guided by instructions modified and amplified in conformity with the views expressed in this opinion, the question whether the pohcy has been forfeited by a violation of the condition will be for their determination. Exceptions sustained. See Harper v. Phcenix Ins. Co. post, 301, and cases cited. And see this same case, post, 265. Eliza P. Hodsdon, administratrix, vs. Guardian Life Insur- ance Company. (97 Mass. 144. Supreme Court, September, 1867.) Premium note. Burden of proof . — In order to avoid a policy of insurance made and ac- cepted on condition that it should cease and determine upon failure by the assured to pay, when due, a premium note given by him to the insurers, the burden is upon them to prove non-payment. Waiver. — If an agent of an insurance company receives payment, ivhen overdue, of a pre-' mium note given to his principals by the assured upon a policy of insurance issued by them, and made and accepted on condition that it should cease and determine upon fail- ure by the assured to pay the note when due ; and accounts for such payment to his prin- cipals; and they receive it without inquiry; they waive thereby the right to avail them- selves of the delay of payment in order to avoid the policy, although the agent had no authority to waive forfeitures. Contract on a policy of insurance for two thousand dollars upon the life of George W. C. Hodsdon, the plaintiff's intestate. The policy was annexed to the declaration, and was expressed to be in consideration, among other things, " of the sum of forty- five dollars and sixty-six cents when paid in the manner provided in the rules of this company," " and of the payment of all inter- est when due upon any premium notes given upon this policy ; " and it was provided that the sum insured should be paid on Hods- don's death within the term of the policy, "the balance of the year's premium, if any, being first deducted therefrom, together with all notes for premiums on this policy outstanding at the time, whether due or to become due ; " and there was a further provis- ion in these words : " It is also understood and agreed that this pohcy is made and accepted in reference to the conditions hereto annexed." Annexed to the pohcy, and immediately following the SEPTEMBER, 1867. 219 Hodsdon v. Guardian Life Insurance Company. signatures of the president and secretary of the company, was this clause : " Agents of the company are authorized to receive pre- miums when due, upon the receipt of an authorized ofBcer of the company, but not to make, alter, or discharge contracts, or waive forfeitures." Then followed the caption, " Conditions upon which this policy is issued ; " and under this, among other j)rovisions, was the following : " In case the premium or premiums, or any pre- mium note given therefor, or any part of either shall not be paid to said company on or before the time specified for the payment of the same, this policy shall thereupon be forfeited and cease and de- termine." The answer admitted the issue of the policy, and set up that it was on condition that it should cease and determine in event of non-payment on or before maturity of any premium note given therefor by the plaintiff, and that in part payment of the pi'emium the plaintiff gave his promissory note as follows, which fell due be- fore his death, and never was paid : " $5.71. New York, January 18, 1866. For value received, I promise to pay to the Guardian Life Insurance Company, or their order, five dollars and seventy- one cents in three months, with interest, being in part of premium on policy No. 7367 of said company, on life of George W. C. Hodsdon." (Signed) " George W. C. Hodsdon." At the trial in the superior court, before Wilkinson, J., the de- fendants admitted the payment in cash of the premium for the first quarter, and the execution of premium notes for the three other quarters of the first year, and of all notes required by the rules of the company, and it appeared that, at the time of delivering the policy, they gave a receipt as follows : " The Guardian Life Insur- ance Company, of New York. New York, January 18th, 1866. Received from George W. C. Hodsdon, $46.66, binding policy No. 7367 from the 18th day of January, 1866, at noon, to the 18th day of January, 1867, at noon, provided the notes given in part payment herefor, with interest, are paid according to the tenor thereof. Not valid until countersigned by H. V. Gahagan, Secre- tary. 145.66 premium. fl.OO pohcy fee. |46.66." The defendants also admitted that Hodsdon died July 8, 1866. The plaintiff thereupon contended that he had made a. prima facie case ; and the judge ruled that the policy having become a valid and subsisting contract, liable to be defeated by the non-payment of the notes, the burden was on the defendants to prove such non- payment. 220 SUPREME COURT OF MASSACHUSETTS. Hodsdon v. Guardian Life Insurance Company. The defendants then produced a note of the tenor of that re- cited in their answer, except that the signattire was torn off ; and F. A. Brewster, their agent, by whom the policy was delivered, testified that it was the note given him by the assured for the sec- ond quarterly premium upon the policy ; that it was sent to him in March, 1866, and remained in his hands till after the death of the assured ; that it had never been paid by the assured, and that he had never paid the note to the company, but that after the death of Hodsdon the note, through mistake, was charged to him (Brew- stei') by the defendants, and was accidentally reckoned in his settle- ment with the company ; and after he found the note had been so reckoned, he tore off the name ; that he never informed the com- pany that the note was paid, but that he wrote to the company that Hodsdon was dead, and if they paid at all, the quicker they paid the better. The secretary of the company testified that the note was sent to Brewster for collection before it was due, that it was never paid to the company, and in June or July, 1866, it was charged to Brewster ; that in the latter part of June he came to Springfield with a list of premiums which had become due, includ- ing this premium note, and Brewster then told him that this note would be settled in his next account, and he left Brewster with the impression that it was paid ; that he saw the note in Brewster's hands after the death of the assured, and it was not mutilated ; and that after Hodsdon's death, believing that the note had been paid, he called on the plaintiff, and stated that he had no reasonable doubt that the policy would be paid, but at that time he did not know that Brewster still had the note. To contradict the testimony of Brewster, the plaintiff called several witnesses, who testified that soon after the death of Hods- don, Brewster stated that " it was all right, the notes were paid, and the company would pay the policy; " and there was other evi- dence in the case tending to show that the note had been paid. It thereupon became a question at what time the payment was made, and the judge rijled, among other things, that if the note was paid to the agent after it was due, and the payment was received by the company after it was due, without inquiry, then the policy was binding. A verdict was returned for the plaintiff, and the defendants al- leged exceptions. J. M. Stebbins, for the defendants, cited 2 Greenl. Ev. § 381 • SEPTEMBER, 1867. 221 Hodsdon v. Guardian Life Insurance Company. Beed v. Upton, 10 Pick. 524 ; Sunt v. Livermore, 5 Pick. 395 Dana v. King, 2 Pick. 156 ; Newoomh v. BracJcett, 16 Mass. 166 Oadwell \. Blahe, 6 Gray, 402 ; Morrison v. GlarTc, 7 Gush. 214 Central Bridge v. Butler, 2 Gray, 131 ; Thornton v. Adams, 11 Gray, 392. 0. A. Beach, (-H". 3Iorris with him,) for the plaintiff. Gkat, J. Upon the payment of the cash premium and giving of the premium notes by the assured to the insurers, the poHcy be- came a binding contract ; although by one of the conditions an- nexed, upon which it was declared to be made and accepted, it was to cease and determine in case of a failure to pay any premium note when due. The terms of the receipt given for the cash pre- mium did not change the nature of the contract of insurance in this respect. The burden of proving a breach of this executory stipulation and an avoidance of the policy, by non-payment of one of the premium notes, was upon the defendants. Gray v. Gardner, 17 Mass. 188! Kingsley v. New England Ins. Co. 8 Gush. 393. Daniels v. Hudson River Insurance Co. 12 Gush. 426. Orrell v. Hampden Insurance Co. 13 Gray, 431. On the point whether the premium note in question had been paid, the evidence was conflicting, and was submitted to the jury with suitable instructions. Although an agent of the company had no authority to bind them by receiving payment of a premium note after it was due, the company might receive such payment at any time. If they received the amount of the note from their agent after it was due, they were bound to inform themselves of the time when it had been paid to him; and by receiving it from him with- out inquiry, they waived the right to insist on the delay in the pay- ment %s a ground of forfeiture of the policy. Exceptions overruled. As to waiver of forfeiture, see Bouton v. American Mut. Life Ins. Co. ante, 51. 222 SUPREME COURT OF MASSACHUSETTS. Burroughs v. State Mataal Life Assurance Company of Worcester. Jarvis F. Bueeoughs vs. State Mutual Life Assueance Company of Woecestee. (97 Mass. 359. Supreme Court, October, 1867.) Assignment. — Upon a policy of life insurance made by the assured for the use of his wife, and payable to the assured, his executors, administrators, and assigns, and assigned by him and his wife for valuable consideration with the assent of the insurers, the assignee may maintain an action at law ao;ainst them after the death of the assured, although the policy is expressed to be for the use of his wife and children, and he leaves a surviving child, and notwithstanding the St. of 1844, c. 82, § 1, — Gen. Sts. c. 58, § 62. The case is stated in the opinion of the court. N. A. Leonard, for the plaintiff. P. C. Bacon ^ H. Chapin, for the defendants. Geay, J. This is an action of contract upon two policies of insurance issued to George Kendall at Worcester on the 1st of March, 1847, and the 1st of January, 1848, by which the defend- ants, a corporation established by the St. of 1844, c. 177, insured his life " for the use of his wife Mary D. Kendall, and his children alive at his decease, to be divided as by law provided in division of intestate estates," and agreed to pay " to the assured, his executors, administrators, and assigns, at their ofBce," the amount thereof, " for the purpose aforesaid," upon due notice and proof of his death. Kendall and his wife afterwards executed an assignment to Martin C. Stokes of all their title and interest in the policies and all ad- vantages to be derived therefrom ; and Stokes at their request executed a like assignment to the plaintiff, and delivered the pol- icies to him with the assignments indorsed thereon. Each of these assignments was made to secure the payment of money lent by the assignees to Kendall, and was recorded in the books of the insur- ance company, and is admitted to have been duly assented, to by them. The plaintiff has since paid the annual premiums and as- sessments. Kendall survived his wife, and died, leaving an infant son, who, by his guardian, in fact defends this action. Satisfactory proof of the death of the assured has been given to the defendants. The defendants rely upon the St. of 1844, c. 82, § 1, which was in force when these policies were made, and has been substantially reenacted in subsequent statutes, providing that " any policy of insurance made by any insurance company on the life of any per- son, expressed to be for the benefit of a married woman, whether the same be effected by herself or by her husband, or by any other person in her behalf, shall inure to her separate use and benefit OCTOBER, 1867. 223 Burroughs v. State Mutual Life Assurance Company of Worcester. and that of her children, if any, independently of her husband and of his creditors and representatives, and also independently of any other person effecting the same in her behalf, his creditors and representatives ; and a trustee or trustees may be appointed, by any court authorized to appoint trustees, to hold and manage the interest of any married woman in any such policy or the proceeds thereof." The superior court ruled that this action could not be maintained by the plaintiff. But this court is of opinion that the ruling was erroneous, and that the rights of the child of the assured by virtue of the statute cannot be set up to defeat this action. No trustee has ever been appointed to hold and manage the interest of the wife. The poli- cies are in terms payable to the assured and his assigns. The as- signments to the plaintiff, assented to by the insurers, transferred to him the legal title in the policies, and the right to sue thereon. Palmer v. Merrill, 6 Gush. 288, note.^ Kingsley v. New England Insurance Co. 8 Gush. 393. If the assured had afterwards died, leaving no wife or child surviving, the assignments would have entitled the assignee to receive the whole amount of the policies to his own use. The plaintiff, having the legal title, may maintain this action at law, and, if he recovers judgment, will hold the pro- ceeds, so far as they inure to the benefit of the child of the assured, in trust for him. The equitable rights of the child under the stat- ute, and the extent to which they may be subject to a claim of the assignee for reimbursement of the sums paid by him for premiums and assessments, or otherwise, cannot now be determined, but may be ascertained upon a bill of interpleader filed by the insurance company, or in a suit by the child against this plaintiff after he shall have recovered judgment in this action. The cases cited by the defendants contain nothing inconsistent with this conclusion. In Swan v. Snow, 11 Allen, 224,^ the policy was not only taken out by the wife, but was in terms made pay- able to her and her representatives, and the representatives of the husband had therefore no title, legal or equitable, against the sur- viving children. In Moehring v. Mitchell, 1 Barb. Gh. 264,^ it was only held that under the statutes of New York the wife could not by will executed in her husband's lifetime prevent her interest in such a policy from passing to his representatives if neither the wife nor any child should survive him. In Uadie v. Slimmon, 26 N. 1 Ante, 170. a Ante, 206. 3 Post, 353. 224 SUPREME COURT OF MASSACHUSETTS. Commonwealth v. Berkshire Life Insnrance Company. Y. 1,1 the point decided was that a wife who had joined with her husband in an assignment of such a policy might, after his death, and the payment of the amount of the policy into court by the insurers, maintain an action against the assignee for the fund, de- ducting the amount of the premiums paid by him while he held the policy, with interest. The cases of Burridge v. Row, 1 Y. & Col. Ch. 183, and Connecticut Mutual Life Insurance Co. v. Burroughs^ recently decided by the superior court of Connecticut, were in equity, and, whatever light they may throw upon the equitable rights of the parties, do not aiFect the plaintiff's title to recover at law upon the express contract between him and the insurers, aris- ing out of the terms of the policies, and of the assignments to which they have assented. Exceptions sustained. See Eadie v. Slimmon, post, 567,and cases cited. Commonwealth vs. Berkshike Life Instjeance Company. (98 Mass. 25. Supreme Court, November, 1867.) Taxation. — Under the provisions of tlie St. of 1864, u. 208, and the St. of 1865, c. 283, im- posing an excise on the franchises of corporations having a capital stock divided into shares, a mutual life insurance company cannot be taxed on its unredeemed guarantee stock. CoNTEACT for the amount of taxes assessed by the Common- wealth in 1864, under the St. of 1864, c. 208, and in 1865 and 1866, under the St. of 1865, c. 283, against the defendant corpora- tion, a mutual life insui'ance company, chartered by the St. of ' 1851, c. 140, §§ 2, 4, 6 of which are as follows : " § 2. There shall be an original guarantee capital stock sub- scribed to the said corporation, which shall be one hundred thou- sand dollars, to be divided into shares by the corporation, half of which shall be paid in, in money, before the said corporation shall go into operation for the purpose of making insurance ; the other half of the said stock may be called for by the directors from time to time when they deem it necessary or expedient, and shall be paid in by the holders of the stock, which shall always stand pledged to the corporation for all such assessments so called for. " § 4. Whenever the net surplus receipts of the said corporation over the losses and expenses, and after providing for risks, shall be 1 Post, 667. 2 Ante, 63. NOVEMBER, 1867. 225 Commonwealth v. Berkshire Life Insurance Company. sufficient for the purpose, the stockholders shall be entitled to an annual dividend of seven per cent, or to such less dividend as may be agreed on at the time of subscribing for the stock ; and in case of such dividend not being made in any one year it shall be made good at a subsequent period, when the net resources of the com- pany shall be sufficient for paying the same. " § 6. After providing for risks, losses, incidental expenses, and dividends as aforesaid, the directors shall set apart one quarter of the estimated surplus funds and receipts as a reserved fund to. be applied to the redemption of the guarantee stock ; and whenever, after the expiration of ten years from the time of organizing the company, the amount of such fund shall be sufficient for the pur- pose, and the assured shall vote to redeem the said guarantee stock, the same shall be redeemed." In the superior court it was agreed that the company was duly organized under this charter, and an original guarantee capital stock was subscribed and paid in to the amount of one hundred thousand dollars, divided into one thousand shares of the par value of one hundred dollars each, according to the provisions of § 2, which subsequently was in part redeemed by payments to the holders thereof out of the surplus funds and receipts, according to the provisions of § 6 ; the number of shares unredeemed on the first day of May in the years 186i, 1865, and 1866, being respect- ively six hundred and forty, five hundred and eighty, and five hundred and thirty, and the market value of such shares on those dates being the par value thereof; and that the company never otherwise had any capital stock divided into shares, nor was ever otherwise conducted for business or profit. And it was further agreed that the tax commissioners deter7 mined the excess of the market value of the capital stock of the company over the value of its real estate, (it having no machinery,) at the sums of sixty-four thousand dollars, fifty-eight thousand dol- lars, and forty thousand dollars, for the years 1864, 1865, and 1866, respectively, and that the taxes for which this action was brought were assessed by the tax commissioners on a valuation of the franchise accordingly, the corporation being allowed for real estate to the amount of thirteen thousand dollars in 1866. On these facts judgment was ordered for the Commonwealth; and the defendants appealed. J. 0. Davis, (C. Allen, Attorney General, with him,) for the Commonwealth. ^5 226 SUPREME COURT OF MASSACHUSETTS. Commonwealth v. Berkshire Life Insurance Company. U. Merwin, for the defendants. Foster, J.i By the statute of 1864, c. 208, §§ 1, 5, a return is required from, and a tax imposed upon " every corporation having , a capital stock divided into shares ; " which is computed on " the excess of the market value of all the stock of each corporation " " over the value of its real estate and macliinen^." The return is also required to be made " by the stock department of stock and mutual insurance companies." These are companies which under one. charter unite two separate branches of business, the stock de- partment doing a stock business, and the mutual department a mutual business, each independent of the other, with distinct inter- ests, and constituting two companies under one corporate organi- zation. The defendant corporation is a mutual life insurance company, the original guarantee capital of which has not yet been redeemed. The holders of its capital stock are entitled to dividends of seven per cent, annually, payable " out of the net surplus receipts of the corporation over the losses and expenses and after providing for risks." Any deficiency of dividends in one year must " be made good at a subsequent period when the net resources of the company shall be sufficient for paying the same." One quarter of the sur- plus funds and receipts of the company is set apart as a reserve to be applied to the redemption of the guarantee stock. This is the original fund which stands as a security for the pay- ment of losses upon policies until a sufficient premium reserve has been accumulated for that purpose. But it is tantamount to a debt from the corporation, for the ultimate payment of which provision is constantly made ; and the stockholders have no interest in the business of the company beyond the payment of their stipulated dividends and the maintenance of the sinking fund out of which their stock is to be eventually redeemed and extinguished. The principle on which the business of life insurance is con- ducted by this company is strictly mutual. All losses and expenses fall directly and solely upon the insured by lessening the distribu- tions of surplus to which they alone are entitled The tax imposed by the act under consideration is on the franchise, and not on the property, of corporations. On this ground only can its constitu- tionality be upheld. Commonwe.alih v. Hamilton Manufacturing ' G ray, J. did not sit in this case. NOVEMBER, 1867. 227 Commonwealth v. Berkshire Life Insurance Company. Co. 12 Allen, 298. Ordinarily the value of a franchise may be measui'ed by the amount of business done under it. But there is no proportion between the value of the franchise of a mutual life insurance company and tlie amount of its guarantee stock. On the contrary, the amount of unredeemed guarantee capital would usually be in an inverse ratio to the increase of the business of the company ; because with growth and prosperity would come re- demption. If the tax in question is levied on this class of corpora- tions, it must be regarded as an excise, not on the commodity of corporate existence and business, but on the commodity of having a guarantee fund as a protection during the infancy and weakness of the company. If its payment is enforced, it will fall exclusively on the assured ; for payment is to be made by the company, and there is no provision for reimbursement from the stockholders. As the guarantee fund is redeemed, the tax grows less, and finally terminates with its extinguishment. The younger and less flour- ishing a mutual life insurance company is, the more certainly and heavily it will be subjected to taxation. The business of mutual life insurance has never been treated by the legislature as an appropriate object of taxation. A tax upon it is in effect a tax upon prudence, and, for this reason probably, has never been resorted to, unless in the case now under consideration. These circumstances would have no weight if the intention to tax such companies had been unequivocally expressed, but they become important when we are called upon to construe doubtful phrase- ology. It cannot be denied that in one sense, perhaps the literal one, the defendant corporation has a capital stock divided into shares. But if the language were " the capital stock of which is divided into shares," it would be apparent that these companies were not intended to be included. They have no fixed and defi- nite capital. It fluctuates constantly, being increased by every _ receipt and diminished by every payment. No one, whether in common parlance or using language accurately, would call the guarantee stock of a mutual life insurance company its capital. It is a liability rather than a part of the assets of the corporation, and should be so included in every statement of its pecuniary condition. It is a capital furnished by way of guarantee against losses in ex- cess of premiums ; to pay dividends or interest on which all the remaining assets of the company left after payment of losses and current expenses stand pledged ; and for the gradual redemption 228 SUPREME COURT OF MASSACHUSETTS. Commonyfealth v. Berkshire Life Insurance Company. of which one quarter of the net surplus funds must be constantly reserved. But it is in no proper sense the capital of the company, and the shares do not, as in stock corporations, represent aliquot fractional interests in the property and franchise. The express provision inserted in the act to include the stock department of stock and mutual insurance companies affords, a strong presumption that the legislgiture did not contemplate the taxation of mutual life insurance companies upon their guarantee stock. If such had been their intention, the enumeration of this class also would have been at least equally natural and important. The maxim Expressio unius est exclusio alterius applies forcibly to a case like the present. By the provisions of the statute the value of the real estate owned by the company to be taxed is deducted from the aggregate market value of the shares. But these guarantee stockholders have no interest in the real estate, and lose nothing by its taxation. And there is no propriety in such a deduction in the case of a tax on guarantee stock. Credit is likewise to be given to the several cities and towns in which shareholders reside of an amount of taxes in proportion to the amount of stock held by residents in such cities and towns ; a natural provision, and one the reasons of which are easily understood in the case of stock companies, but utterly fail in a case like the present where the revenue is derived from the funds, not of resident stockholders but of the whole body of mutual policy holders wherever resident. Furthermore, the seventh section of the act allows credits to " stock insurance companies owning stock in other corporations" of the amount of taxes paid by such corporations on the stock so held. And it seems to us that the credit must have been intended to apply to all companies subjected by the act to taxation. If this be so, the expression " stock insurance companies " must have been used as equivalent to the words " insurance companies having a capital divided into shares." But no one would class the defendant corporation among stock insurance companies. The question is by no means free from difficulty ; but all the foregoing considerations have brought the minds of a majority of the court to the conclusion that' the legislature did not intend to tax in this extraordinary and unequal manner the. franchise of such mutual life insurance companies as happen not to have redeemed their guarantee capital. The language of the. statute does not seem NOVEMBER, 1867. 229 Campbell v. New England Mutual Life Insurance Company. to US to be sufficiently explicit to require us to hold that such a tax has been imposed contrary to reason and probability. The considerations applicable to the St. of 1865, c. 283, are almost identical with those we have already reviewed, and a repe- tition of them is unnecessary. The language under this statute is : " All corporations having a capital stock divided into shares, char- tered by this Commonwealth or organized under the general laws, for purposes of business or profit." We think the same rule must govern as under the act of the previous year. It may be observed that the effect of this decision w^ill not be to exempt the guarantee stock from taxation ; but it will be taxed where the shareholders reside, as in the case of the national banks. On the agreed facts there must be Judgment for the defendants. Margaret Campbell vs. New England Muttjal Life Insitr- ANCE Company. (98 Mass. 381. Supreme Court, November, 1867.) Insurable interest. — An action may be maintained on a policy of life insurance, obtained by a man on his own life, without proving an insurable interest therein in the person for whose benetit it is declared on its face to be made. Materiality. — If at the trial of an action on a policy of life insurance the judge rules thdt a representation upon which the policy \vas issued is material, the insurers cannot except to the exclusion of evidence that it was material. And whether the presence or absence of certain forms of disease, respecting which questions are asked and answered in the ap- plication for insurance, is material or not in estimating the risk is a question of law and BOt of fact. Burden of proof. — The burden of proving untrue a representation upon which a policy of life insurance was based is upon the insurers. Warranty. Representation. — A policy of life insurance was declared on its face to be " upon the following condition," that " if the statements made by, or on behalf of, or with the knowledge of," the assured, to the insurers, " as the basis of, or in tlie negotiations for this contract, shall be found in any respect untrue, then this policy shall be null and void;" and was issued upon an application in writing, signed by the assured, declaring that he made the statements therein "as the basis of such insurance," and that they were " full, fair, and true answers to the questions proposed," and further declaring that he had carefully read the questions and answers, and was aware that any fraudulent or untrue answers, or concealment of fact, or non-compliance with the terms of the policy, would vitiate the insurance. To a question whether he was or had been " subject to or at all aifected by any of the following diseases and infirmities," among which were enumerated *' bronchitis, consumption, coughs prolonged," and " spitting of blood," he answered. No. Held, that this answer was not a warranty, but a representation, which need not be true to the very letter, but nmst be substantially, in all respects material to be disclosed to the insurers to enable them to estimate the risk to be assumed; that, if materially untrue in such respects, it avoided the policy, even if made ignorantly and in good faith ; and 230 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. that, by the form of the policy and application, it was conclusively made material. Held, also, that a refusal to instruct the jury in an action on the policy, *' that a spitting of blood accompanied by a cough was so far an indication of a diseased condition of the respira- tory organs that, if the applicant had suffered from them, he was bound to have so stated to the insurers ; " accompanied by an instruction " that repealed instances of spitting of blood of the kind testiiied to by the defendants' witnesses would be indications of a dis- ease which the assured was bound to state ; that it was not necessar}' that the defendants should prove the existence of any positive organic disease, or that the spitting of blood was of a character to shorten life ; that the inauiries were not only as to diseases, but as to infirmities, and certain specified symptoms of disease ; and that the defendants were en- titled to have them answered fairly and truly; " afforded to the defendants no ground of exception. Contract against a life insurance company on a policy of insurance made by them to Andrew Campbell npon his life, paya- ble to him, his executors, administrators, and assigns, for -the ben- efit of the plaintiff, "upon the following conditions," (among others,) that " if the statements made by, or in behalf of, or with the knowledge of the said assured, to said company, as the basis of, or in the^ negotiations for this contract, shall be foimd in 'any respect untrue," then the policy should be null and void. The declaration alleged the making of the policy (a copy of which was annexed thereto) ; that the plaintiff was the wife of a brother of the assured ; the promise of the defendants to pay the sum insured to the assured, his executors, administrators, and as- signs, for her benefit ; his death from a natural cause or sick- ness ; due notice and proof thereof; the subsequent lapse of sixty days ; a request to pay the sum insured to the plaintiff, and the defendants' refusal ; and that they owed her that sum and interest thereon. The answer admitted the making of the policy, the death of the assured, the notice of death, and demand of payment ; declared the defendants' ignorance whether the plaintiff was his brother's wife or the person to whom the policy was made payable ; and averred that she had not an insurable interest in his life ; and also that the policy was made upon the faith of an application therefor, signed by Andrew Campbell, by the terms of which the statements therein were declared to be the basis of the insurance ; set forth the above condition of the policy ; and alleged that such state- ments were untrue in that at the time of making the same he had had spitting of blood, prolonged coughs, and consumption, and had also long been subject to sudden and frequent attacks of illness of a serious and alarming character, not enumerated in the sixth ques- tion in the application, and which he ought to have disclosed in NOVEMBER, 1867. 231 Campbell v. New England Mutual Life Insurance Company. answer to the seventh question therein, and that by reason of such untrue statements the pohcy was null and void. In the application (a copy of which was annexed to the answer) Andrew Campbell " proposes to insure " his life with the defend- ants, " and thereby to become a member of the company ; and with that view, and as the basis of such insurance, makes the fol- lowing statements : " S^^ If the applicant writes his answers himself, he will please to answer directly, fully, and explicitly. If the agent or examining physician writes down the answers given to him by the applicant, he will please to make explanations where the applicant is in doubt about the meaning and purpose of the question ; and also to put such inquiries as will draw direct and specific answers." " 6. "Whether now, or heretofore, and when, and how long, and to what degree, subject to, or at all affected by, any of tlie following diseases and infirmities, viz. : " " Bronchitis, consumption, coughs prolonged," " disease of the lungs," " spitting of bl(A)d." Answer. " No." " 7. Has the person had any serious illness, local disease, or personal injury; and if so, of what nature, and when ? " An- swer. " No:" " 22. Have you carefully read all the above ques- tions, and the answers thereto ? " Answer. " Yes." " 23. Are you aware that any fraudulent or untrue answers, or any conceal- ment of fact, or non-compliance with the terms and conditions of the policy, will vitiate the insurance ? " Answer. " Yes." The application concluded with ' the statement, " The foregoing are full, fair, and true answers to the questions proposed," and was signed by the applicant. A trial was had in this court at April term, 1867, and resulted in a verdict for the plaintiff, which was set aside as against evi- dence. At the second trial, at October term, 1867, before Wells, J., the plaintiff proved that she was the person named in the policy, and for whose benefit it was made ; and rested her case ; where- upon the defendants asked the judge to rule that in order to main- tain her action she must prove an insurable interest in the life of her brother-in-law ; but he declined so to rule. The defendants then put in evidence the application, and offered testimony to show that whether or not an applicant had ever spit blood, and his statements in relation thereto, were matters materi- ally affecting the inducement of insurance companies to take the risk ; but the judge excluded this testimony as immaterial. 232 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. The defendants then called witnesses who testified that the as- sured, for several years previous to his application, had suffered from a severe cough, which was particularly observable early in the morning and at night, and while coughing had spit blood in their presence, and had called attention to it, and had told them of particular instances of coughing and spitting blood, and had said that his lungs were diseased. The plaintiff, in rebuttal, called witnesses who testified that the assured was always a healthy man, vigorous in looks and habits, and that they never saw him spit blood, or heard him cough or complain of spitting blood, before the date of the application ; and also introduced evidence tending to show bias on the part of some of the defendants' witnesses. The defendants asked the judge to instruct the jury " that the policy is issued upon the basis of the truth of the statements in the application, and the assured takes the risk of the truth of these statements ; ttiat if they are in any respect untrue the policy is void, and it makes no difference whether he knew them to be un- true, or not." But the judge declined to give the instruction as requested ; and modified it by inserting the word " materially " after the word "respect," and by striking out the words "and it makes no difference whether he knew them to be untrue or not ; " and also instructed the jury, in this connection, " that repeated in- stances of spitting of blood, accompanied by a cough of the char- acter testified to by the defendants' witnesses, were, if true, ma- terial facts which the applicant was bound to state ; but that an untrue statement, innocently made, in regard to a latent disease of which the applicant was unconscious, would not avoid the policy." The defendants also asked an instruction " that the truth of the statements in the application, and which were in express terms made the basis of the policy, was a condition precedent to the va- lidity of the policy ; and that the burden of proof was upon the plaintiff to show their truth." The judge declined to give this in- struction ; and, instead of it, instructed the jury " that the plain- tiff, upon the production of the policy and proof of the death, had established a prima facie case, and was entitled to recover, unless the defendants defeated her claim by proof of some of the grounds of defence set up in their answer ; and that upon this issue the burden of proof was upon the defendants." The defendants also asked an instruction " that the spitting of NOVEMBER, 1867. 233 Campbell v. New England Mutual Life Insurance Company, blood, accompanied by a cough, was so far an indication of a dis- eased condition of the respiratory organs, that, if the applicant had suffered from them, he was bound to have so stated to the com- pany in his answers to questions six and seven." The judge de- clined to give this as prayed for ; and modified it by inserting the word " repeated " before the words " spitting of blood ; " and instructed the jury, in this connection, " that repeated instances of spitting of blood, of the kind testified to by the defendants' wit- nesses, would be indications of disease, which the assured was bound to have stated ; that it was not necessary that the defend- ants should prove the existence of any positive organic disease, or that the spitting of blood was of a character to shorten life ; that the inquiries were not only as to diseases, but as tp infirmities, and certain specified symptoms of disease ; and that the company were entitled to have them answered fairly and truly." The defendants also asked an instruction " that, if the jury are satisfied that the assured had spit blood before obtaining the policy, under circumstances which excited apprehension in his own mind that it was the result of disease, he was bound to have stated that fact to the company, that they might make inquiry in regard to it." The judge modified this by inserting the word " recently " after the words " spit blood ; " and further instructed the jury, upon the defendants' request, that, " if the assured was subject to occasional spitting of blood, accompanied with a cough, he was bound to have stated that fact to the company." The judge further stated to the jury, " that, as the plaintiff did not attempt to explain or account for the instances of spitting of blood testified to by the defendants' witnesses, but denied the truth of the facts so testified to, it would seem that the only question for them to determine was whether they were satisfied of the truth of that testimony ; and that, if they were satisfied, from all the evi- dence in the case, that the assured did spit blood at different times, in connection with a cough, as testified to by the defendants' wit- nesses, their verdict must be for the defendants." The jury returned a verdict for the plaintiff; and the defend- ants alleged exceptions. T. K. Lothrop ^ a. W. Baldwin, for the defendants. 1. The relations of the plaintiff to the insurance company are open to all the objections by force of which wager policies of insurance have been held to be invahd contracts, in Amory v. Grilmcm, 2 Mass. 5 ; 234 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. Lord r. Ball, 12 Mass. 118; [ante, 154;] BoIIy. Gilbert, 12 Met. 397 ; Morrell v. Trenton Insurance Co. 10 Cush. 282 ; [ante, 170 ;] Loomis V. ^agle Bisurance Oo. 6 Gray, 899, [ante, 175.] A wager policy is one in which the assured has no interest in the subject matter of the insurance. Practically, this plaintiff was the as- sured. The man on whose death the policy was payable v^as merely the possessor of the life insured. The plaintiff had no interest whatever in the continuance of his life, but an interest to the amount of the policy in his death. Hence the highest con- siderations of public safety apply against her. Muse v. Mutual Benefit Insurance Oo. 23 N. Y. 526, \j>ost, 46T.] Wainwright v. Bland, 1 Mees. & W. 32. 2. Whether or not facts withheld or misrepresented are material for the insurers to know as affecting their inducement to accept a risk is a question for the jury. Morrison v. Muspratt, 4 Bing. 60. lAndenau v. Besborough, 8 Barn. & C. 586. Baniels v. Hudson Biver Insurance Co. 12 Cush. 416. Curry v. Commonwealth In- surance Co. 10 Pick. 535. Being so, evidence as to such material- ity must be competent. Mawes v. New England Insurance Co. 2 Curtis C. C. 229. Mske v. Neiv England Insurance Co. 15 Pick. 320. Valton v. National Fund Assurance Co. 20 N. Y. 32, [post, 409.] If incompetent, it can be so only on the ground that it is unnecessary, because the representations of the assured are war- ranties. But this ruling was asked and refused. 3. The force of the exception to the insertion of the word " ma- terial," and to the striking out of the last clause in the first in- struction asked by the defendants, must be determined by the. terms of the contract. Statements in an application made as the basis of the policy, and on the faith of which the policy was de- clared to be made, with a stipulation that if the same were not in all respects true, the policy should be void, are warranties ; and if any of them, whether material or immaterial to the risk, are un- true, either from design, mistalce, or ignorance, the plaintiff cannot recover. Miles v. Connecticut Insurance Co. 3 Gray, 580, [ante, 173.] Vose V. Eagle Insurance Co. 6 Cush. 42, [ante, 161.] Houghton V. Manufacturers' Insurance Co. 8 Met. 114. Baniels v. Hudson River Insurance Co. 12 Cush. 416. Barre Boot Co. v. Milford Insurance Co. 7 Allen, 44. Hardy v. Union Insurance Co. 4 Allen, 217. Brown v. Cattaraugus Insurance Co. 18 N. Y. 385. Chase v. Hamilton Insurance Co. 20 N. Y. 52. Fowkes v. NOVEMBER, 1867. 235 Campbell v. New England Mutual Life Insurance Company. Manchester ^ London Assurance Co. 3 Best & Smith, 917. Caze- nove V. British Equitable Assurance Co. 6 C. B. (N. S.) 487. An- derson V. Fitzgerald, 4 H. L. Gas. 484. State Insurance Co. v. Arthur, 80 Penn. State, 315. Sayles v. Northwestern Insurance Co. 2 Curtis C. C. 612. Maynard v. Rhode, 1 Car. & P. 360. 4. The question raised as to the burden of proof seems never to have been adjudged in Massachusetts as to hfe insurance. In all the reported cases as to fire and marine policies or other contracts the test is whether the untrue statements relied on to avoid a policy are in the nature of conditions precedent or conditions subsequent. If the former, the burden of proof is on the party affirming the contract ; if the latter, on the party seeking to avoid it. By apply- ing this test, all the cases which seem unfavorable may be distin- guished from the case at bar. See Paddoch v. Franklin Insurance Co. 11 Pick. 237 ; Merchants^ Insurance Co. v. Clapp, 11 Pick. 56 ; Taylor v. Lowell, 3 Mass. 349 ; Tidmarsh v. Washington In- surance Co. 4 Mason, 441 ; Fiske v. New England Insurance Co. 15 Pick. 310 ; Jones Manufacturing Co. v. Manufacturers'" Insur- ance Co. 8 Gush. 82 ; Kingsley v. New England Insurance Co. 8 Cush. 393 ; Daniels v. Hudson River Insurance Co. 12 Cusli. 416 ; Orrell v. Hampden Insurance Co. 13 Gray, 438 ; Dorr v. Fisher, 1 Gush. 271 ; Lothrop v. Otis, 7 Allen, 437 ; Jennison v. Stafford, 1 Gush. 168 ; Delano v. Bartlett, 6 Gush. 364. If it be answered that, when the plaintiff had produced and proved the policy, the burden shifted upon the defendants to prove the facts they set up in avoidance of it, that is true only when the adverse party, instead of producing proof tending to negative the same proposition of fact established by the prima fade evidence of the party having the burden of proof, proposes to show a distinct proposition which avoids the effect of it. Here the only issue was in relation to the truth of the statements made by the assured, which the plaintiff was bound to maintain. Powers v. Russell, 13 Pick. 69, 76. Del- ano V. Bartlett, 6 Gush. 364. Burnham v. Allen, 1 Gray, 496. Morrison V. Clark, 7 Cush. 213. Central Bridge v. Butler, 2 Gray, 180. Sohier v. Norwich Insurance Co. 11 Allen, 386. Applying this rule, the only question is whether Andrew Campbell's state- ments were in the nature of a condition precedent ; and, being warranties, they were so. Craig v. United States Insurance Co. 1 Pet. C. C. 410. • This whole subject has been discussed in Eng- land in connection with the right to open and close. Huekman v. 236 SUPREME COURT OF MASSACHUSETTS. Campbell v. New Englaind Mutual Life Insurance Company. Fmiie, 3 Mees. & W, 605, &each v. Ingall, 14 Mees. & W. 95. Leete v. Cfresham Insurance Society, 15 Jur. 1161. 5. The defendants objected to the insertion of the word " re- •peated " before the words " spitting of blood " in one instruction, and of the word " recently " after the words " spit blood " in an- other. If Andrew Campbell's statements were warranties, that fact is decisive ; but even if they were only representations, they were materially untrue if upon any single occasion before obtaining the policy, whether " recently " or not, he " had spit blood under circumstances which excited apprehension in his own mind that it was the result of disease." Greach v. Ingall, 14 Mees. & W. 95. Daniels v. Hudson River Insurance Oo. 12 Gush. 416. The con- cealment of such a fact would vitiate the policy, even if no spe- cific question had been put to him. Vose v. Eagle Insurance Co. 6 Gush. 42, [ante, 161.] Bebee v. Hartford Insurance Oo. 25 Conn. 51. 6. Instructions to the jury should be given with special caution in cases like this, because their natural sympathies lead them to favor the individual as against the corporation. Dean v. American Insurance Co. 4 Allen, 108, \_ante, 195.] H. Gf. Hutchins, for the plaintiff. Wells, J.^ The policy in this case is upon the life of Andrew Campbell. It was made upon his application ; it issued to him as " the assured ; " the premium was paid by him ; and he thereby became a member of the defendant corporation. It is the interest of Andrew Campbell in his own life that supports the policy. The plaintiff did not, by virtue of the clause declaring the policy to be for her benefit, become the assured. She is merely the person designated by agreement of the parties to receive the proceeds of the policy upon the death of the assured. The contract, (so long as it remains executory,) the interest by which it is supported, and the relation of membership, all continue the same as if no such clause were inserted. I'ogg v. Middlesex Insurance Co. 10 Cush. 337, 346. Sanford v. Mechanics'' Insurance Co. 12 Cush. 541. Hale V. Mechanics' Insurance Co. 6 Gray, 169. Camplell v. Charter Oak Insurance Co. 10 Allen, 213. Forbes v. American Insurance Co. 15 Gray, 249.^ It was not necessary, therefore, that the plain- tiff should show that she had an interest in the life of Andrew ' Hoar and Foster, JJ., did not sit in this case. 2 Ante, 191. NOVEMBEE, 1867. 237 Campbell v. New England Mutual Life Insurance Company. Campbell, by which the policy could be supported as a policy to herself as the assured. The defendants raise no question as to her right to bring this action, if the policy can be supported for her benefit. The remaining exceptions mostly depend upon the question whether the statements made in the application, by way of answers to interrogatories, are to have the effect of warranties, or to be regarded as representations only. The rulings and instructions at the trial were based upon the assumption that these answers were to be treated as representations, and cannot be sustained upon any principle of law applicable to warranties. A warranty, in insurance, enters into and forms a part of the contract itself. It defines, by way of particular stipulation, descrip- tion, condition, or otherwise, the precise limits of the obligation which the insurers undertake to assume. No liability can arise ex- cept within those limits. In order to charge the insurers, therefore, every one of the terms which define their obligation must be satis- fied by the facts which appear in proof. From the very nature of the case, the party seeking his indemnity, or payment under the contract, must bring his claim within the provisions of the instru- ment he is undertaking to enforce. The burden of proof is upon the plaintiff" to present a case in all respects conforming to the terms under which the risk was assumed. It must be not merely a substantial conformity, but exact and literal ; not only in mate- rial particulars, but in those that are immaterial as well. A representation is, on the other hand, in its nature, no part of the contract of insurance. Its relation to the contract is usually described by the term " collateral." It may be proved, although existing only in parol and preceding the written instrument. Un- like other verbal negotiations, it is not merged in nor waived by the subsequent writing. This principle is in some respects pecul- iar to insurance, and rests upon other considerations than the rule which admits proof of verbal representations to impeach written contracts on the ground of fraud. Representations to insurers, before or at the time of making a contract, are a presentation of the elements upon which to estimate the risk proposed to be assumed. They are the basis of the contract ; its foundation, on the faith of which it is entered into. If wrongly presented, in any respect material to the risk, the policy that may be issued thereupon will not take effect. To enforce it would be to apply the insurance to 238 SUPREME COUET OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. a risk that was never presented. Kimhall v. ^tna Insurance Co. 9 Allen, 640. But when the insurer seeks to defeat a policy upon this ground, his position in court is essentially different from that which he may hold upon a policy containing a like description of the risk as one of its terms. It is sufficient for the plaintiff to show fulfilment of all the conditions of recovery which are made such by the contract itself. The burden is iJien thrown upon the defend- ant to set forth and prove the collateral matters upon which he relies. There is also another distinction very important in its practical application. As this defence relates entirely to the substance and not to the letter of the contract, it can only prevail by proof of some representation material to the risk, and that it was untrue in some material particular. When statements or engagements on the part of the insured are inserted, or referred to in the policy itself, it often becomes difficult to determine to which class they belong. If they appear on the face of the policy they do not necessarily become warranties. Their character will depend upon the form of expression used, the apparent purpose of the insertion, and sometimes upon the connec- tion, or relation to other parts of the instrument. If they are con- tained in a separate paper, referred to in such a manner as to make it a part of the contract, the same considerations of course will ap- ply. But if the reference appears to be for a special purpose, and not with a view to import the separate paper into the policy as a part of the contract, the statements it contains will not thereby be changed from representations into warranties. It is perhaps need- less to add that verbal representations can never be converted into warranties otherwise than by being afterwards written into the policy. In considering the question whether a statement forming a part of the contract is a warranty, it must be borne in mind, as an established maxim, that warranties are not to be created nor ex- tended by construction. They must arise, if at all, from the fair interpretation and clear intendment of the words used by the par- ' ties. Daniels v. Hudson River Insurance Co. 12 Cush. 416, 424. Blood V. Howard Insurance Co. 12 Cush. 472. Jefferson Insurance [Co.] V. Cotheal, 7 Wend. 72. Forhush v. Western Massachusetts Insurance Co. 4 Gray, 337, 340. When, therefore, from the desig- nation of such statements as "statements" or as "representations,'' NOVEMBER, 1867. 239 Campbell ». New England Mutual Life Insurance Company. or from the form in which they are expressed, there appears to be no intention to give them the force and effect of warranties, they will not be so construed. Houghton v. Manufacturers' Insurance Co. 8 Met. 114. Jones Manufacturing Qo. v. Manufacturers' In- surance Co. 8 Gush. 83. Towne v. FitcJiburg Insurance Co. 7 Allen, 51. 1 Phil. Ins. §§ 871, 893, [5th ed.]. 3 Kent Com. (6th ed.) 282. The application is, in itself, collateral merely to the contract of insurance. Its statements, whether of facts or agreements, belong to the class of " representations." They are to be so construed, unless converted into warranties by force of a reference to them in the policy, and a clear purpose manifest in the papers thus con- nected, that the whole shall form one entire contract. When the reference to the application is expressed to be for another purpose, or when no purpose is indicated to make it part of the policy, it will not be so treated. Jefferson Insurance Co. v. Qotheal, 7 Wend. 72. Snyder v. Farmers' Insurance ^ Loan Co. 13 Wend. 92. In Daniels v. Hudson River Insurance Co. 12 Cush. 423, the court (Shaw, C. J.) say : " If by any words of reference the stipu- lations in another instrument, such as the proposal or application, can be construed a warranty, it must be such as make it in legal effect a part of the policy." In every case cited in support of the defendants' position there was an express reference in the policy, which made the application a part of the contract. The one most relied on, and claimed to be especially applicable to the facts of the present case, is that of Miles v. Connecticut Insurance Co. 3 Gray, SSO.-' In that case it was declared in the policy itself to be expressly " understood and agreed to be the true intent and meaning hereof that, if the proposal, an- swer, and declaration made by ' the assured,' and upon the faith of which this agreement is made, shall be found in any respect un- true, then and in such case this policy shall be null and void." In that proposal the assured declared (among other things) that the answers and statements therein made are correct and true, and "agree that the answers given to the following questions, and the accompanying statements, and this declaration, shall be the basis and form part of the contract or policy between them and the said company." 1 Ante, 173. 240 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. Two marked features in that case distinguish it from the present. First, the clause in the policy relates distinctly and exclusively to the paper called " the proposal, answer, and declaration." Second, when the two papers are thus brought together there is a distinct agreement, not only that the statements are true and correct, but that they are to form a part of the contract. In the present case the policy contains no reference to any ap^ plication, nor to any declaration or statement in writing made or to be made by the assured. The only clause in the policy which can have any bearing upon the question, when disconnected from other provisions of a diverse character, reads as follows, namely : " Or if the statements made by, or in behalf of, or with the knowl- edge of the said assured to said company, as the basis of, or in the negotiations for this contract, shall be found in any respect un- true," " then and in each of said cases this policy shall be null and void." It is clear that this is not a reference to any particular instrument or paper ; biit it includes any and all statements, whether oral or written. The defendant, however, contends that a written applica- tion having been made in this case, which by its own terms de- clares the statements therein contained to be made " as the basis of" the insurance applied for, the policy will attach to that appli- cation as containing the " statements " referred to, and thus con- stitute an express warranty. We are far from being ready to concede that the reference is sufSciently definite to warrant the bringing of the two papers together for the purpose of giving a construction to the contract. But even if the application may properly be resorted to for aid in the construction, it contains no agreement and no words to indicate that its statements are to be taken as warranties ; nor that they are to form part of the contract. The designation of " statements," both in the application and in the policy, comports with the idea of representations rather than of warranties. Representations are " the basis of" the contract of insurance ; and such these " statements " are declared to be. The effect which is to result from their untruth results also from the untruth of representations. It is true that misrepresentations de- feat a policy without any provision to that effect in the policy itself. But the insertion of such a provision does not therefore require a construction which shall give them a different force of character. The disjunctive enumeration of the various conditions under which NOVEMBER, 1867. 243 Campbell v. New England Mutual Life Insurance Company. misstatements should render the policy void indicates a sufficient reason for inserting the clause, if they are to be regarded as repre- sentations only. But it seems wholly inconsistent with an intent to create warranties. Upon that supposition the clause can take effect as intended, only in case a written statement is made, and must fail as to all other statements ; or else it must be construed to bear a double aspect. There is nothing in the clause, or else- where in the policy, to indicate that statements in writing were in- tended to be put upon any different footing from oral statements made 'in the course of the negotiations leading to the contract. It seems to us, therefore, to accord best with the form and apparent purpose of this clause to construe all statements so made, whether oral or written, as representations. The clause in the policy is in the form of a condition, and is grouped with other provisions of various character and purpose under the general head of " conditions." But the use of the term " conditions " does not always carry the legal consequences which attach to that word in its technical meaning. The clause must be taken as a part of the contract, and must have such an application as its fair interpretation, with the other parts of the contract, re- quires ; but neither the form, nor the subject-matter, nor its asso- ciate provisions under the head of " conditions," indicate that it was intended to give to this clause the technical character of a war- ranty, or a condition precedent. The plaintiff is not bound to go beyond the written policy and show what statements were made in order to prove that they were true. The burden is upon the defendant, notwithstanding this proviso is written in the policy in the form of a condition, to set forth and establish the facts relied upon to defeat the contract upon that ground. Jones Manufactur- ing Co. V. Manufacturers' Insurance Co. 8 Cush. 83. Kingsley v. New England Insurance Co. 8 Cush. 393. Hbdsdon v. Guardian Insurance Co. 97 Mass. 144.^ Mashins v. Hamilton Insurance Co. 5 Gray, 432. Mulry v. Mohawk Valley Insurance Co. 5 Gray, 541. Cluff \. Mutual Benefit Insurance Co. 1^ Allen, S08.^ By statements "in any respect untrue" must be intended statements made and received as inducement to the contract ; that is, material and proper to be disclosed to the insurers to enable them to esti- mate the risk proposed, and determine upon the propriety of entering into the contract. 1 Ante, 218. a Ante, 208. 16 242 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. Whether or not the applicant had been subject to or affected by the disease or infirmity of " spitting of blood," and his statements in relation thereto, were held by the court at the trial to be mate- rial ; and therefore it was unnecessary for the defendant to prove that they were in fact " matters materially affecting the induce- ment of insurance companies to take the risk." The testimony upon this point was not offered to^ show that particular facts, to which other witnesses had testified, were material as indications of disease, and therefore that the answer was a material misrepresen- tation. The offer was to prove the materiality of the reprelsenta- tion, not the materiality of the facts rehed upon to show the rep- resentation to be untrue. The ruling of the court that the rep- resentations relied on were material, and therefore that no proof of materiality need be made, was a ruling in favor of the defend- ants, and is not open to exception. The answers contained in the application being in the nature of representations only, the question is of their substantial and not their literal truth. To defeat the policy they must be shown to be materially untrue, or untrue in some particular material to the risk. The instruction asked for was therefore rightly modified in this re- spect. We understand it to be a question for the jury to determine, whether the facts which appear in evidence are so far inconsistent with the answers relied on in the application, as to establish a material misrepresentation. The defendant, however, asked for instructions in several forms, with a view to obtain the ruling of the court upon the evidence, as a matter of law. The court did instruct the jury that the repeated spitting of blood, accompanied by a cough, was so far an indication of disease that if the applicant had suffered from it he was bound to have so stated ; that if he was subject to occasional spitting of blood, accompanied by a cough, he was bound to have stated that fact ; and that the same was true if he had spit blood in a single instance, if recent, and such as to ex- cite apprehension in his own mind that it was the result of disease. Considering the various forms and degrees in which the spitting of blood with a cough may manifest itself, the uncertainty as to its source and cause, and the character of the facts which the testi- mony in this case tended to prove, we cannot say that the rulings of the court ought to have gone farther than this in favor of the propositions of the defendant. The mere raising of a small quan- NOVEMBER, 1867. 243 Campbell v. New England Mltual Life Insurance Company. tity of blood with a cough in a single instance is not necessarily an indication of disease, or a material circumstance, so that such an occurrence, however slight, at any time during the previous life of the applicant, would make his answer such a misrepresentation as to require that the court should so declare it as a matter of law. The propositions of the defendant could not properly be given to the jury without qualification. It was for the jury to determine upon the evidence, and in view of all the circumstances under which the spitting of blood by Andrew Campbell was testified to before them, whether his representations in regard to it, in his an- swers to the inquiries of the company, varied from the truth in any respect material to the risk. It was for them to judge not only of the fact of variance, but of its extent and materiality. The instruction " that an untrue statement innocently made, in regard to a latent disease, of which the applicant was unconscious, would not avoid the policy," as a general statement of the law ap- plicable to representations in insurance contracts, was incorrect. An untrue statement or denial of a material fact, preceding or contem- poraneous with the contract of insurance, prevents the policy that is based upon it firom taking effect as a contract, whether the state- ment was made ignorantly and in good faith or otherwise. 3 Kent Com. (6th ed.) 282. Ouny v. Commonwealth Insurance Oo. 10 Pick. 535. Wilbur v. Bowditch Insurance Co. 10 Cush. 446. Kinfihall v. JEjtna Insurance Co. 9 Allen, 540. Sawyer v. Coasters' Insurance Co. 6 Gray, 221. 1 Arnould on Ins. 454, 495,^ and cases cited in note. The spitting of blood is necessarily so obvious to the person af- fected by it, that at first thought it would seem impossible that the jury could be led by this misdirection. But we cannot make it certain that it might not, in some way, have affected their minds in applying the testimony to the questions that were open. The denial of Andrew Campbell is that he had been " subject to or at all affected by any of the following diseases and infirmities," among which are consumption and disease of the lungs, as well as spitting of blood. Both of these are relied on by the defendants. The jury may have been satisfied that Andrew Campbell was affected by consumption, a disease often latent and deceptive for a long time, but that he was unconscious of it ; or they may have been satisfied that he was not aware that the cough and spitting of blood, 1 Original pages, 450, 491. 244 SUPREME COURT OP MASSACHUSETTS. Campbell v. New England Mwtual Life Insurance Company. to which he was subject, did in reality amount to what was intended by the inquiry in the appHcation, and so answered the inquiry as he did, innocently and in good faith. And they may have been led by the instruction to suppose that, if they arrived at those conclu- sions, the answer, though found to be untrue in fact, would not be such a false statement as would avoid the policy. As it is impossible to make it certain that some such effect may not have been produced upon the minds of the jurors by this in- struction, and as the instruction was in itself incorrect, it seems to be necessary that the verdict should be set aside, and the Exception upon tJds single point is sustained. A third trial was had at April term, 1868, resulting in a disagree- ment of the jury. At the beginning of the fourth trial at October term, 1868, before Colt, J., the defendants moved for a nonsuit, because the plaintiff had not set up in her declaration any right of action ao-ainst the defendants. But the motion was refused, be- cause it appeared that this objection had not been made until the beginning of the third trial, when it was overruled by the presiding judge. The plaintiff proved that she was the wife of the brother of the assured, and the person named in the policy as the one for whose benefit it was made ; and, upon cross-examination, stated that she was not the administratrix of the estate of the assured ; and rested her case. The defendants then renewed their motion for a nonsuit, because she had not set up or shown any right of action upon the policy, and by her own showing had no right of action. But the judge refused the motion. The defendants put in evidence the application ; and were al- lowed to amend their answer by specially setting up bronchitis as a ground of defence ; and called two physicians as witnesses, who testified that they had treated the assured, one of them for chronic bronchitis, and the other for "bronchial difficulty," before the date of the application. They further introduced, against the plaintiff's objection, the testimony of several medical experts, some of them examiners for other life insurance companies, to the effect that no method of examining the lungs practised by physicians is satisfac- tory to ascertain whether a patient has previously spit blood ; that he mav have done so often and in large quantities without leaving any trace thereof on the lungs apparent upon such an examination, unless such spitting has been very recent ; and that for ascertain- NOVEMBER, 1867. 245 Campbell v. New England Mutual Life Insurance Company. ing the symptom of spitting blood physicians must rely chiefly on the statements of the patient himself. And, in reply to the defend- ants' question " whether or not the statements of the applicant, that he has or has not been afflicted with the disease or infirmity of spitting blood, are matters material as affecting the inducement of insurance companies to take the risk," these witnesses were per- mitted to testify, also against the plaintiff's objection, " that any such previous bleeding was very material for insurers to know ; and that if repeated and mixed with phlegm and accompanied by a cough, it would be of vital consequence to the insurers to know, and such knowledge would lead to the rejection of the risk." One of the physicians further testified that broncliitis was an inflamma- tion of the bronchial tubes, and that these tubes ramify into the lungs. Evidence was also introduced by each party similar to that intro- duced at the second trial, as stated ante, 231. The defendants asked the judge to rule that, " when a specific fact is sworn to by a witness of fair fame, and who is uncontradicted by other testimony, or any circumstances in which he may stand, mere negative evidence will not warrant the jury in disregarding his testimony." The judge declined to give this instruction, and the defendants excepted to his refusal ; but he gave general in- structions in this connection, in regard to the distinctions between positive and negative evidence, and the weight to be given to each, which were not objected to. The defendants further asked the judge to instruct the jury as follows : " The statements made in the application for insurance, in reply to specific inquiries in regard to the previous health of the applicant, are material to the insurers to enable them to estimate the risk proposed, and determine upon the propriety of entering into the contract ; and, if they are in any respects untrue, the pol- icy is void." The judge declined to give the instruction as prayed for; and modified it by prefixing the words, "The jury are to judge upon all the evidence whether ; " and by striking out the last clause, and adding in place thereof the words, " and if they find them so material, and find them untrue, the plaintiff cannot recover." To this the defendants alleged exceptions. The defendants also asked the following instruction : " If An- drew Campbell had suffered from chronic bronchitis and been treated for that disease by physicians previously to his application 246 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. for insurance, it was a symptom of a tendency to disease in the breathing apparatus and lungs, which he was bound to have stated to the company." The judge declined to give this as prayed for ; and modified it by inserting before the words " it was a symptom," the words, " and the jury are of opinion that ; " and by striking out the last ten words, and adding in place thereof the words, " and was material in the sense stated in the first instruction asked, he was bound to have stated the fact to the company." And to this also the defendants alleged exceptions. The jury returned a verdict for the plaintiff; and the rulings and instructions above stated were reported for the revision of the full court, and the case was argued before all the judges on the 22d of March, 1869. D. Foster §• Gr. W. Baldwin, ( T. K. Loihrop with them,) for the defendants. H. Gr. Hutchins, for the plaintiff. . Gray, J. 1. The first objection now presented is to the right of the plaintiff to maintain this action in her own name. "We are not prepared to hold that the statement in the answer, that the defendants are ignorant whether the plaintiff is the person to whom the policy is made payable, covers anything except the plaintiff's identity in fact with the person for whose benefit the policy is declared on its face to be made. In the view which we take it is not necessary to consider that question ; and it may be assumed, as argued for the defendants, that the plaintiff's right to maintain this action was not duly averred in the declaration, and therefore, even if not denied in the answer, might have been con- tested by the defendants at the trial, or, if judgment had been ren- dered against them on default, by writ of error. Tarhell v. Gray, 4 Gray, 444. Rollis v. Richardson, 13 Gray, 392. The conclusive reply to this objection is, that the defendants, by their previous conduct of the case, have waived all right to take advantage of it. Whenever a defendant, without demanding judg- ment on a technical or formal defect apparent on the face of the writ, goes to trial on the merits, he is held to have waived such defect, and cannot afterwards revive it. This rule has been ap- plied to the want of such a seal, indorser, declaration, or service as is required by law, and even of the teste prescribed by the Consti- tution. Qlark v. Montague, 1 Gray, 448, 449, and cases cited. So where one of two joint creditors assigned his share to the other, NOVEMBER, 1867. 247 Campbell v. New England Mutual Life Insurance Company. vesting in him the whole beneficial interest in the debt, and an action at law was afterwards brought in the name of the latter only, and was referred to arbitration under a rule of court, it was held that the nonjoinder of the other was waived. Austin v. Kim- ball, 12 Gush. 485. In the present case the plaintiff, though not the assured, was the person for whose benefit the policy was made, and was therefore the owner of the entire equitable interest, and might have main- tained an action upon it in the name and without the consent of the administrator, or, if the latter had collected the amount of the policy, might have sued him for the proceeds. Gen. Sts. c. 58, § 62. Crrover v. Qrover, 24 Pick. 261. Burroughs v. State Assur- ance Co. 97 Mass. 359.^ Q-ould v. Emerson, March, 1868.2 The plaintiff had the equitable interest in the policy, although not the title to support an action at law in her own name against the in- surers. The objection now made goes to the foundation of the action, and, if valid and seasonably taken, would have rendered the other grounds of defence immaterial. Yet the defendants did not present it to the court on either of the first two trials, or upon the motion on which the first verdict was set aside, or at the argu- ment of the exceptions taken at the second trial. By thus repeat- edly contesting the plaintiff's claim upon the merits, and putting her to great trouble and expense in proving her case, they must be held to have waived tlie right to suggest at the third trial for the first £ime a defect apparent upon the face of the writ and declara- tion, and touching only the name of the formal plaintiff. 2. The defendants have no just ground of exception to the refusal of the presiding judge to rule as requested upon the com- parative effect of negative evidence and positive testimony ; because it is not true as matter of law that negative evidence may not be sufficient in fact to counterbalance the positive testimony of a single witness ; and because the report states that instructions were given to the jury as to the distinctions between positive and negative evi- dence and the weight to be given to each, which were not objected to, and which must be presumed to have been correct. 3. It was held, upon much consideration, when this case was previously before us, that the statements made in the written application as the basis of the contract of insurance, not being in- I Ante, 222. 2 Post, 258. 248 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. serted in the policy, nor in terms made part of it, were not war- ranties, but representations only ; that the burden of proving them to be untrue was upon the insurers ; that they need not be com- plied with literally ; but must be substantially, in all respects ma- terial to be disclosed to the insurers to enable them to estimate the risk to be assumed ; and that, if materially untrue in such respects, they avoided the policy, even if they were made ignorantly and in good faith. But one point, not then adjudged, and now presented, requires particular examination. It had been ruled at the former trial that the answers of the assured upon the point whether he had been affected by the disease or infirmity of " spitting of blood " were material statements, and that repeated instances of the spitting of blood by him, accompanied by a cough, were material facts to be disclosed to the insui'ers ; and as that ruling was in favor of the defendants, its correctness was not brought before us upon their exceptions. At the recent trial, the presiding judge declined to rule, as re- quested by the defendants, that the statements made in the appli- cation, in reply to specific inquiries, in regard to the previous health of the applicant, were material to the insurers to enable them to estimate the risk proposed and determine upon the pro- priety of entering into the contract ; and that if the assured had suffered from chronic bronchitis and been treated for that disease by physicians previously to his application for insurance, it was a symptom of tendency to disease in the breathing apparatus and lungs, which he was bound to have stated to the insurers ; but left it to the jury to judge, upon all the evidence, not only whether this was such a symptom, and whether each of the statements was true, but also whether they were material, in the sense above stated. Another verdict having been returned for the plaintiff, and these rulings and instructions having been unfavorable to the defendants, the question of their correctness is now presented for adjudication. The fact that the defendants also attempted, and were allowed, against the plaintiff's objection, to introduce evidence tending to prove that the representations were material in fact, does not pre- vent them from relying upon their further position that they had been conclusively made material in law by the form of the trans- action between the parties at the time of entering into the con- tract. NOVEMBER, 1867. 249 Campbell v. New England Mutual Life Insurance Company. It is true that a representation need not, like a warranty, be strictly and literally complied with, but only substantially and in those particulars which are material to be disclosed to the insurers to enable them to determine whether they will enter into the con- tract ; and that, where the question of the materiality of such par- ticulars depends upon circumstances, and not upon the construction of any writing, it is a question of fact to be determined by the jury. But where the representations upon which the contract of insurance is based are in writing, their interpretation, like that of other written instruments, belongs to the court ; and the parties may, by the frame and contents of the papers, either by putting representations as to the quality, history, or relations of the subject insured into the form of answers to specific questions, or by the mode of referring to them in the policy, settle for themselves that they shall be deemed material ; and, when they have done so, the applicant for insurance cannot afterwards be permitted to show that a fact, which the parties have thus declared matei'ial to be truly stated to the insurers, was in fact immaterial, and thereby escape from the consequences of making a false answer to such a question. Upon this principle, it has repeatedly been affirmed by this court in cases of fire insurance, that, although the particular nature of the assured's title in the property insured need not be stated un- less inquired about by the insurers, yet a substantially untrue an- swer to a question put to him by them in relation to his title would avoid the policy, without regard to the mode in which the applica- tion was referred to in the policy, or to the existence or non-exist- ence of a lien on the property in favor of the insurers. Locke v. North American Insurance Co. 13 Mass. 68. Strong v. Manufac- turers' Insurance Co. 10 Pick. 45. Fletcher v. Commonwealth In- surance Co. 18 Pick. 421. Davenport \. New England Insurance Go. 6 Gush. 340. Clark v. New England Insurance Co. lb. 348. Mayward v. New England Insurance Co. 10 Gush. 444. Draper v. Charter Oak Insurance Go. 2 Allen, 573, 574. Towne v. Fitch- burg Insurance Co. 7 Allen, 53. The principle is equally applicable to cases of life insurance. Vbse V. Eagle Insurance Go. 6 Gush. 49.^ In Anderson v. Fitzger- ald, 4 H. L. Gas. 484, a policy of life insurance provided that " if I Ante, 161. 250 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. any circumstance material to this insurance shall not have been truly stated, or shall have been misrepresented or concealed, or shall not have been fully and fairly disclosed and communicated to the said company, or if any fraud shall have been practised on the said company, or any false statements made to them in or about the obtaining or effecting of this insurance, this policy shall be null and void." The assured had signed a " proposal and statement," (not otherwise referred to in the policy,) the particulars mentioned in which he thereby declared should form the basis of the contract between the assured and the company, and that, if there should be anj' fraudulent concealment or untrue allegation contained therein, or any circumstance material to the insurance should not have been fully communicated to the company, or if there should be any fraud or misstatement, the policy should be void ; and which con- tained a great number of questions required to be answered, in- cluding the following : " Did any of the party's near relations die of consumption, or any other pulmonary complaint?" "Has the party's life been accepted or refused at any ofSce ? " To each of these the applicant answered, " No." The house of lords, in ac- cordance with the opinion of eleven English judges as delivered by Baron Parke, and reversing the judgment of the Irish courts, unanimously held that these answers, if false, avoided the policy, and that it was a misdirection to leave it to the jury to say whether they were material as well as false, and to instruct them that, if they were not material, the insurers were liable. Baron Parke observed, " This question does not appear to us to turn upon the well-known distinction between warranties and representations, laid down by Lord Mansfield, nor upon the point whether the declara- tion above mentioned was either a part of the contract binding be- tween the parties independent of the policy, or meant to be referred to by it. The proviso is clearly a part of the express contract between the parties, and on the non-compliance with the condition stated in the proviso the policy is unquestionably void." And, after commenting on the other clauses of the proviso, he said, " Lastly, it prohibits every false statement whatever, whether in matters actually material or immaterial, and leaves no room for dispute whether the particular matter to which it related was ma- terial or not, (which in the case of a dispute a jury would have to decide,) leaving the company to determine entirely for itself what matters it deems material and what not." Lord Chancellor Cran- NOVEMBER, 1867. 251 Campbell v. New England Mutual Life In8urance Company. worth said, " Whether certain statements are or are not material, where parties are entering into a contract of life assurance, is a matter upon which there must be a divided opinion. Nothing there- fore can be more reasonable than'that the parties entering into that contract should determine for themselves what they think to be material ; and, if they choose to do so, and to stipulate that unless the assured shall answer a certain question accurately, the policy or contract which they are entering into shall be void, it is per- fectly open to them to do so, and his false answer will then avoid the policy. Now it appears to me that that is precisely what has been done here. The parties entering into the insurance have so stipulated. ' The basis of our contract shall be your answering truly these two questions.' There were a great many others ; but, putting those aside, they say, ' The basis of the contract between us shall be that you shall answer truly these two questions, and if you do not answer them truly, the policy shall be void.' " The case at bar falls within the same principle, and is governed by the same reasons. The policy is expressed to be upon condition that, if the statements made by the assured to the company, as the basis of this contract, " shall be found in any respect untrue, this policy shall be null and void." And the assured declares in his application that he makes the statements therein " as the basis of such insurance," and that they " are full, fair, and true answers to the questions proposed." To the questions, " Have you carefully read the above questions, and the answers thereto ? " and, " Are you aware that any fraudulent, or untrue answers, or any conceal- ment of fact, or non-compliance with the terms and conditions of the policy, will vitiate the insurance ? " he answers, " Yes." And to the question, " Whether now or heretofore, and when, and how long, and to what degree, subject to. Or at all affected by, any of the following diseases and infirmities, namely," "bronchitis; con- sumption ; coughs prolonged ; " " disease of the lungs ; " and " spitting of blood ? " he answers, " No." Whether a form containing so many and so minute questions as this application does is suitable to be used by insurers of lives, or safely to be adopted by those applying for such insurance, is a question which the parties must determine for themselves before completing their contract. When that has been once completed, the words used must receive their legal interpretation and effect. And whether such a provision as this policy contains could be held 252 SUPREME COURT OF MASSACHUSETTS. Campbell v. New England Mutual Life Insurance Company. to exclude either, as suggested by Baron Parke in Anderson v. Fitzgerald, statements of matters to the disparagement of the ap- plicant and tending to render his life less insurable, or, as suggested by Lord St. Leonards. in the same* case, answers to merely imper- tinent and irrelevant questions, it is not in this case necessary to consider. The subjects of all the representations with which we now have to deal were bodily infirmities and diseases of the assured, which the court can see might reasonably be regarded by the insurers as material to be disclosed to enable them to judge of the risks to be undertaken ; and the form of the policy and application shows that they did so regard them. The only question for the jury on this branch of the case, therefore, was whether these representations were substantially untrue ; that is to say, whether at or before the time of making the application the assured actuallj^ had either of these diseases or infirmities ; and, if they found that he had, the policy was void, and the plaintiff could not recover. Applying this rule to the evidence stated in the report, it was for the jury to de- cide whether " chronic bronchitis " or " bronchial difficulty," or any other bodily affection or condition to which the assured was found by them to have been subject, amounted to bronchitis, con- sumption, disease of the lungs, or some other of the infirmities stated in the application and relied on by the defendants ; and whether the spitting of blood by him, if proved to have taken place, was under such circumstances as to indicate disease in his throat, lungs, air passages, or other internal organs. But it was not within the province of the jury, under the guise of determin- ing whether the statements of the applicant were materially false, or untrue in some particulars material to the risk, to find that dis- eases and infirmities were not material to be disclosed, which the parties had by the form of the contract of insurance and of the contemporaneous written application conclusively agreed to con- sider material. In the words used by this court, in delivering judgment in Davenport v. New England Insurance Co. 6 Gush. 341, 342, " It is manifest that the defendants deemed this informa- tion material ; and they put the direct question, and it was a proper and practical question ; and it was material that the as- sured should answer it truly. The assured, having given an un- true answer, whether by accident, mistake, or design, it matters not, to a direct, plain, and practical question, cannot now be heard to say it was immaterial." JANUARY, 1868. 253 Hoyt V. Mutual Benefit Life Insurance Company. The instructions now reported submitted to the jury not merely whether the statements in question were untrue, but whether they " were material to the insurers to enable them to estimate the risk proposed, and determine upon the propriety of entering into the contract," and being erroneous in this respect, the verdict must be set aside and a New trial ordered. As to insurable interest, see Lord v. Dall, ante, 154. Warranty and representation, Vose v. Eagle Life and H. Ins. Co. ante, 161. Materiality, Valton v. National Assurance Co. post, 409, 436, 440, 451. Eliza J. Hott vs. Mutual Benefit Life Insueance Com- pany. (98 Mass. 539. Supreme Court, January, 1868.) Delivery. — At an interview with an applicant for life insurance, the agent of the insur- ance company offered the policy to him and asked him to pay the premium, but was re- ferred by him to a third person who had previously arranged with the applicant to pay it. The agent agreed to call on this person for it; but never did so, and retained the pol- icy in his own possession. Held, that instructions were erroneous which permitted a jury to find that these facts were equivalent to actual delivery of the policy and payment of the premium. CoNTKACT on the defendants' policy of insurance on the life of the plaintiff's husband, James W. Hoyt, for three thousand dollars, payable on his death to the plaintiff. The answer denied the com- pletion of any contract of insurance. At the trial in the superior court, before Lord, J., these facts appeared : William H. S. Jordan was in 1865 the general agent in Massachusetts of the defendants, a mutual life insurance company established under the laws of New Jersey, whose directors had made certain " instructions and rules," subject to which Jordan accepted his agency, with power to appoint sub-agents, among which " instructions and rules " were the following : " The agent is not authorized to deliver a policy unless he is satisfied that the applicant is in good health, except in cases when the premium was paid to him at the time of making the application ; in which latter case, and the risk being approved of at the home-office, the company will be liable from the date of the application. If the application is not accepted, the premium will be returned. The agent is prohibited, in all cases, except when the premium has been paid in advance, from delivering a policy after thirty days from the date thereof, but will return the same to this office. After 254 SUPREME COURT OF MASSACHUSETTS. Hoyt V. Mutual Benefit Life Insurance Company. the expiration of said thirty days, a medical exaraination being had at the expense of the applicant, and found satisfactory, a new policy will be issued." " No risks are binding until assumed by the home-office." " Agents are not authorized in any case to make, alter, or discharge contracts, or consent to assignments." By the solicitation of Charles F. Wells, a sub-agent of Jordan, on September 21, 1865, at Ballardvale, James W. Hoyt made an application to the defendants for such a policy as was described in the declaration, which application was forwarded on that day to the defendants' home-office at Newark, New Jersey, Wells agree- ing that " if, when the policy came on, he did not choose to take it, he need not do so." In response to this application a policy was made out at the home-office and sent to Boston to Jordan, who received it before the end of September, but did not deliver it to Wells until some time between November 1 and November 4. Wells, on the day he received it, went to Ballardvale, where he found Hoyt ill with typhoid fever, (with which he had been at- tacked tlie week previous,) but supposed to be convalescing. What appeared at the trial concerning this interview was stated in the bill of exceptions as follows : " Wells testified that he offered the policy to Hoyt ; that Hoyt was discouraged, and said he could not pay for the policy, and refused to take it. Mrs. Hoyt, the plain- tiff, the only other person present, testified that Wells said that he had brought his policy ; and Hoyt said if he would go to Mr. Banks that he would pay him, and that he had made arrangements with him to do so ; and that Wells agreed to do so. There was other evidence on both sides bearing upon what took place at that interview, and the evidence here stated is not either all the evi- dence, or admitted to be the substance of all the evidence, but all the evidence was of the same general nature." , Wells did not ask Mr. Banks to pay Hoyt's premium, but re- turned the policy to Jordan at Boston, and was then first informed of the existence of the rule of the company, above quoted, pro- hibiting agents from delivering policies to applicants not in good health, except in cases where payment of the premium had ac- companied the application. A few days after this, Hoyt, ascertaining that Wells had not called upon Banks for the premium, sent the amount of it to Bos- ton to Jordan, who refused to receive it and deliver the policy, on the ground of Hoyt's illness. Hoyt was in fact much more ill at JANUARY, 1868. 255 Hoyt V, Mutual Benefit Life Insurance Company. this time than when Wells called on him with the policy ; but it did not appear that the increase of his illness was known to the de- fendants or their agents. He died of the fever on November 23. There was testimony of Banks tending to show " that Hoyt had arranged with him for the payment of the premium ; and that, if he had been asked for it, he should have arranged it." There was no evidence that Hoyt had any knowledge of the by- laws of the company ; and the plaintiff " objected to the compe- tency of the private rules, regulations, and instructions of the defendants to their agents, which were not referred to in any way in the application and policy, were no part of the contract, were not communicated to Hoyt, and which even the agent Wells was ignorant of." But the judge said that he wftuld receive them in evidence " and give such direction to the case and to the juiy as the whole case demanded ; " and, refusing a prayer of the defendants for an in- struction that there was no evidence sufficient to warrant a verdict for the plaintiif, he instructed the jury " that, inasmuch as the by- laws or regulations of the defendants in relation to the delivery of the policy after thirty days from its date, or when the insured was sick, were not referred to within the application or policy, and no knowledge was had of them before delivery of the policy, if it ever was delivered, (of which the jury could judge upon instructions to be given,) in the usual mode by the proper officer, such by-laws or regulations after such delivery could not be set up in defence of the policy ; that it would be a fraud thus to set up secret instruc- tion to an agent ; that the real question for the jury was, whether there had been a delivery of the policy ; that delivery of the pol- icy was necessary to the completion of the contract ; and that to constitute a delivery it was not necessary that the policy should be passed from the actual manual custody of any party to the actual manual custody of the other, but something must take place which the parties themselves understood to be equivalent to actual man- ual transfer." And then he instructed them further as follows : " In the sale of personal property for some purposes a delivery is necessary, but there are chattels from their nature incapable of being transferred from the hand of one person to that of another, and in such a case a manual transfer is not necessary, but when the parties understand that all has been done that is to be done be- tween the parties, and that thenceforth the article is to be under 256 SUPREME COURT OF MASSACHUSETTS. Hoyt V. Mutual Benefit Life Insurance Company. the control of the vendee, with no further act to be done by the vendor, the delivery is complete. This is not the case with regard to a policy of insurance. That is capable of a manual transfer from one to the other ; but the same principle governs. If both parties understand that all has been done that is to be done by the insured in, order to have the full benefit, control, and management of the policy, and no other act remains for him to do, this is suffi- cient to warrant the jury in finding a delivery of the policy. To apply this principle to the present case, if the jury are satisfied that Hoyt had made an arrangement with Banks to pay the premium upon this policy, and Banks was prepared to pay it upon call, and would have paid it upon call, and it was agreed between Hoyt and Wells that Wells would call upon Banks for it, and both parties understood that nothing more waS to be done by Hoyt, and noth- ing remained except for Wells to call for the premium from Banks, and Wells neglected thus to call for the premium, these facts would be sufficient to warrant the jury in finding such a delivery of the policy as would evidence a valid and complete contract of insurance between the parties ; but nothing short of this would be sufficient ; that if, as claimed by the defendants, Hoyt declined to take the policy, of course there was no contract, and the plaintiff' could not recover ; if the arrangement in relation to Banks was a new arrangement between Hoyt and Wells to procure the assist- ance of Banks in paying the premium, or if in any respect it fell short of what has been previously stated as necessary, it was in- sufficient, the contract was incomplete, and the plaintiff' could not recover upon it." The jury returned a verdict for the plaintiflp; and the defendants alleged exceptions. C. W. Loring, ( W. 0. Endicott with him,) for the defendants. J). Saunders, Jr., ^ J. W- Perry, for the plaintiff, to the point of the delivery of the policy, cited, among other cases, the follow- ing : McCullooh V. Eagle Insurance Co. 1 Pick. 278; Thayer v. Middlesex Insurance Co. 10 Pick. 332 ; Loring v. Proctor, 26 Maine, 18 ; Mactier v. Firth, 6 Wend. 104 ; Kohne v. Insurance Company of North America, 1 Wash. C. C. 93 ; Tayloe v. Mer- chants' Insurance Co. 9 How. 390 ; Union Insurance Co. v. Commer- cial Insurance Co. 2 Curtis, 524 ; S. 0. 19 How. 318 ; Adams v. Lindsell, 1 B. & Aid. 681 ; Xenos v. WicJcham, Law Rep. 2 H. L. 296. JANUARY, 1868. 257 Hoyt V. Mutual Benefit Life Insurance Company. Wblls, J. It does not appear to have been understood or in- tended by the parties, that a contract of insurance should be eflfected otherwise than by receipt of the premium and dehvery of the policy. The judge at the trial held " that delivery of the policy was necessary to the completion of the contract ; " and the instructions were given upon that assumption. The principal question is, whether the instructions, upon which the jury have found such a delivery, were correct in law. The court are all of opinion that they were not correct. The premium was not paid ; the policy was not delivered. Taking the facts most strongly in favor of the plaintiff, they show merely that Hoyt, whose life was the subject of the proposed insurance, had made an arrangement with Banks on the one hand, and with Wells, a sub-agent of the defendants, on the other, that the money should be paid by, and the policy delivered to Banks, instead of himself; and that Wells, having agreed to call on Banks for this purpose, failed to do so. The instructions allowed the jury to find that this arrangement, and the neglect of Wells to call upon Banks to receive the pre- mium and deliver the policy, were equivalent to an actual payment and delivery. But the undertaking of Wells was a mere personal one, for the performance of which the insurance company was not responsible. And besides, even if Wells had authority to bind the company by giving credit for the premium, no such credit was in fact given. Wells had no promise from Banks upon which to give credit ; and the whole arrangement excludes the idea of any credit. The policy was to be delivered only upon payment. It was not an arrangement by which Wells accepted something else as an equiv- ' alent for the premium, and consented to hold the policy thereafter as Hoyt's, solely for his benefit or convenience. In this respect the case differs essentially from those cited by the plaintiff to show that an instrument may take effect as a contract, although retained in the manual possession of the party executing it. The policy here was retained for payment of the premium, and not held as a simple deposit. In the opinion of the court the facts do not warrant the instruc- tions that were given to the jury upon the question of delivery. Exceptions sustained. As to delivery of policy, see Sheldon t. Connecticut Mut. Life Ins. Co. ante, 27, and cases cited. 17 258 SUPREME COURT OF MASSACHUSETTS. Gould V- Emersoii. Ada Gould vs. Benjamin F. Emerson. (99 Mass. 154. Supreme Court, March, 1868.) Will- — A policy of life insurance, expressed to be for the benefit of the widow and child of the assured, cannot be affected by his will. lAabilUy of executor. — If a policy of life insurance, expressed to be for the benefit of the widow and child of the assured, is made payable, upon his death, to his executor, th$ executor is liable to the child, as for money had and received to the child's use, for tbf child's share of the amount of the policy collected by him from the insurers, after deduct- ing from such amount his expenses of collecting the same, including the expenses of taking out administration here if this was the only estate of the deceased in this common- wealth. Contract by the only surviving child of Alonzo P. Gould, late of Ng,shua in New Hampshire, deceased, against the defendant g,s his administrator with the will annexed, to recover one half of the sum received by the defendant from the New England Mutual Life Insurance Company upon a policy of insurance made by them to him at Boston on February 18, 1862, upon his life, by which they promised to pay the sum insured to him, his executors, ad- ministrators, or assigns, in sixty days after due notice and proof of his death, " for the benefit of his widow, if any, and his then sur- viving child or children." The testator in his will, which was duly proved in New Hamp- shire, declared that, for reasons therein stated, he made no bequest to his daughter, the plaintiff; appointed his wife executrix ; ordered whatever sum should be paid on this policy to be paid to her ; and bequeathed to her, to her sole and separate use, the said policy, the money due thereon at his decease, and all the benefits, privileges, apd rights thereunto in any way appertaining. The defendant, who resided in New Hampshire, and was served ?(yith this writ , by summons in this commonwealth, was duly ap- pointed and qualified administrator with the will annexed of the deceased, both in this commonwealth and in New Hampshire, and ■received the amount of the insurance from the insurance company after such appointment, and refused, upon demand, to pay to thp pl9,intiff any part thereof. The plaintiff also resided in New Hamp- shire. The case was submritted to the judgment of the court upon the foregoing facts. B: Dean, for the plaintiff. D. S. Biehiirdson, for the defendant. MARCH, 1868. 259 Gould V. Emerson. Gray, J. The rights of the parties are regulated by the statute law of Massachusetts. It is unnecessary, therefore, to consider whether, by the general principles of equity jurispmdence, the pol- icy of insurance on the life of Alonzo P. Gould, for the benefit of his wife and children, would have constituted an executed volun- tary settlement which he could not have revoked by a subsequent Uke settlement or by will, and which could have been enforced against his representatives. See Fortescue v. Bamett, 3 Myl. & K. 36 ; Lewin on Trusts, (3d ed.) 86-92; Stone v. Hackett, 12 Gray, 227. The Gen. Sts. c. 68, § 62, in accordance with which this policy was issued, provide that " a policy of insurance on the life of any person, expressed •to be for the benefit of any married woman, whether procured by herself, her husband, or any other person, shall inure to her separate use and benefit and that of her children, independently of her husband or his creditors, or the person effect- ing the same or his creditors." This is but a reenactment of a provision which has been incorporated for many years in the legis- lation of the commonwealth. Sts. 1844, c. 82, § 1 ; 1854, c. 453, § 28 ; 1856, c. 252, § 42. See also St. 1864, c. 197. It proceeds upon the theory that the interest of a man's wife and children in his life, and his duty to make reasonable provision for their support, are not wholly subordinate to the claims of his creditors ; and that he may make an irrevocable settlement of a policy of insurance on his life for the benefit of his family. The words of the statute are too clear to be misunderstood. Eveli " if the premium is paid by any person with intent to defraud his creditors," only " an amount equal to the premium so paid, with interest thereon, shall inure to the benefit of his creditors." The security is declared by the stat- ute to be not merely independent of the creditors of the husband or of those of the person effecting insurance, but independent of the husband or the assured himself. The manifest purpose is, not only to prevent the creditors from reaching the fund by proceed- ings in law or equity, but to restrain the debtor from revoking, in a moment of caprice or embarrassment, the trust which he has once created upon a meritorious, and, by the statute, a sufficient consideration. There does not appear to have been any such statute in those states in which the decisions were made upon which the defendant relies. None is referred to in Pennington v. Chittings, 2 Gill & 260 SUPREME COURT OF MASSACHUSETTS. Gould V. Emerson. Johns. 208. The statute of Tennessee, under which Tiison v. Wilkinson, 3 Sneed, 565,^ arose, only provided that an insurance effected upon a man's Hfe should inure to the benefit of his widow and heirs, and not be subject to his debts ; and did not insert the words of our statute, " independently of her husband," and of "the person effecting the same." The policy also, in that case, was in common form, without any specijil stipulation ; and the court, in speaking of the argument that it operated as a settlement upon the widow and children of the deceased, which could not be diverted from their use and benefit by any act either of the husband or his creditors, said : " It would be more difiicult to meet this argument, if indeed it could be successfully met at all, if the policy had ex- pressly provided that in the event of death the 'sum secured should be paid to the widow and children." The policy upon the life of Alonzo P. Gould is expressly made payable, upon his death, " for the benefit of his widow, if any, and his then surviving child or children." The rights of the widow and the surviving child are fixed by the policy ; and, as their pro- portions are not otherwise specified, they must take equal shares. Alien V. Eoyt, 5 Met. 328. Crockett v. Crockett, 2 Phil. Ch. 555. The assured could not affect, by his will, the construction of the policy or the distribution of the proceeds thereof. The contract of the insurance company having been made with the assured, his executors, administrators, and assigns, the defend- ant, as his administrator, might by law collect the amount of the policy. Burroughs v. State Assurance Co. 97 Mass. 359.^ But it was not general assets in his hands, liable to tlie payment of debts, or to distribution under the will of the deceased or the law of his domicil. The defendant held it in trust, to be paid over to the widow and child of the deceased in equal parts. The plaintiff does not claim as a creditor, legatee, or distributee, but as cestui que trust of money in regard to which the trustee has no duty but im- mediate payment. The plaintiff may therefore, upon familiar prin- ciples, recover the amount due to her, as money had and received to her use. Arms v. Ashley, 4 Pick. 71. Wheelook v. Pierce, 6 Gush. 288. Carney v. Dewing, 10 Cush. 498. The defendant is entitled to deduct, out of the money collected, his expenses of col- lection, which may include the expenses of taking out administra- 1 Post, 707, a Ante, 222. MARCH, 1868. 261 Knickerbocker Life Insurance Company «. Weitz. tion here, if this was the only estate of the deceased in this com- monwealth. Judgment for the plaintiff . Note. — Kerman v. Howard, post, 728, in the supreme court of Wisconsin, decided in the same year as the above case, holds a contrary doctrine, under a statute almost precisely the same as the one construed here. Knickeebocker Life Insukance Company vs. August Weitz & others. (99 Mass. 157. Supreme Court, March, 1868.) Amgnment. — An assignment by a wife to a creditor of her husband of a policy of insur- ance effected by her in accordance with the Gen. Sts. t. 68, § 62, or the N. Y. St. of 1866, c. 656, on her husband's life for a certain term, and, in event of his death after hers, made payable to their child, cannot affect the right of the child to the amount of the policy upon the death of the husband within that term after the death of his wife, although made with the assent of the husband and of the insurers. Bill of inteepleadek to obtain instructions as to the disposi- tion to be made of the amount due on a policy of insurance made on August 27, 1866, by the plaintiffs, a life insurance company es- tablished in New York, to Caroline, wife of Louis Stauff, of Bos- ton, upon his life for a certain term, in consideration of a premium paid by her, and expressed to be for her benefit, and payable, when due, to her executors, administrators, or assigns, and, in case of her death before the death of the assured, then " payable, after the death of the latter, to her children by him, for their sole use, or to their guardian, if under age." On August 29, 1866, said Caroline, with the consent of her hus- band and of the insurers, executed to August Weitz, as security for a debt due to him from her husband, a written assignment of this policy, which assignment, however, provided " that the restric- tions in said policy shall remain in full force notwithstanding this assignment." On February 27, 1867, she died, leaving one only child by said Louis, named August Stauff, three years old ; and on March 9, 1867, said Louis died, within the term for which his life was insured, and for which his wife had paid the premium, leaving this child, who, with his guardian, and said August Weitz, were made parties to this bill. The case was reserved by Hoar, J., for determination by the full court, on the bill, answers, and an agreed statement of the facts above recited. 262 SUPREME COURT OF MASSACHUSETTS. Knickerbocker Life Insurance Company ». Weitz. I. Story, Jr., for August Stauff and his guardian. (r. W. Farh, for August Weitz. Gray, J. The policy of insurance made by the plaintiflPs on the life of Louis Stauff was effected, and the premium paid, by his wife, and the policy was expressed to be for her benefit, and pay- able, when due, to her and her executors, administrators, or as- signs ; but if she should die befor© him, then, upon his death within the term insused, " to her children by him, for their sole use, or to their guardian, if under age." She did die before him, and he died before the expiration of the term for which his life was in- sured. It does not appear, and is unimportant, whether this contract was made in Massachusetts or in New York ; for the laws in force at the time in the two states did not materially differ, so far as this case is concerned. If the policy is to be governed by our laws, then, by the Gen.' Sts. c. 58, § 62, being expressed to be for the benefit of a married woman, it inured not merely " to her separate use and benefit," but " to that of her children, independently of her husband or his creditors, or the person effecting the same or his creditors." As the wife, in this case, was the person who effected the same, she could no more revoke or assign away the rights of her children in the policy, than her husband, if he had effected the policy, could have varied or defeated their rights therein, which, as has been ad- judged, he could not do. Grould v. Emerson, ante, 154.^ By the St. of N. Y. of 1866, c. 656, any married woman may obtain insurance upon the life of her husband, payable, in case of her surviving the term of insurance, to her and for her own use, free from any claims of his representatives or creditors ; and the policy may be made payable, in case of her death meanwhile, to her husband, or to his, her, or their children, (as shall be, and in this case has been, provided in the policy,) and to their guardian, if they are under age. The assignment of the policy by the wife contains an express recognition that " the restrictions in said policy shall remain in full force, notwithstanding this assignment." It is unnecessary to de- cide whether the word " restrictions," as here used, would have ( — ■ » This refers to the paging of 99 Mass. The case immediatel7 precedes this one in this work. • MARCH, 1868. 263 Pfitry V. Provident Life Insurance and Investment Company. included the clause providing for payment to the children in a cer- tain contingency, if that clause could otherwise have been defeated by the wife ; for we are of opinion that her assignment could not defeat the rights secured to the child by the terms of the policy in the manner authorized by either statute. If the assignment of the wife passed anything, it Was, at most, her own interest, which ended with her death. She having died before the termination of the policy, and her husband having also died within the term, the policy, by its express provisions, was not payable to her representa- tives Or assigns, but to the child or his guardian ; and the latter therefore, and not her assignee, is entitled to receive the amount. Moehring v. Mitchell, 1 Barb. Ch. 270.1 Eadie v. Slimmon, 26 N. Y. 1.^ Swan v. Stww, 11 Allen, 224.^ Burroughs v. State Assurance Oo. 97 Mass. 359.* As the assignee has not paid any premiums to keep the policy or. foot, we need not consider whether, if he had, he would have been entitled to be paid those premiums or any other proportion out of the principal sum due upon the policy. Decree for payment to the guardian of the child. See note to Gould v. Emerson, ante, 261 ; and see the following oases holding a different doctrine : Rison v. Wilkerson, post, 707 ; Mutual Protection Ins. Co. V. Hamilton, post, 709. Maky a. Perey vs. Provident Life Insurance and Invest- ment Company. (99 Mass. 162. Supreme Court, March, 1868.) Accident policy. Computation, — A policy of insurance " for the period of twelve months " from noon of the day of its date to noon of the day of its expiration, was made " against loss of life " of the assured, in a sum payable to his widow on proof " that the assured at any time after the date hereof, and before the expiration of this policy, shall have sus- tained personal injury caused by any accident," " and such injuries shall occasion death within ninety days from the happening thereof.'" By an accident which happened at nine o'clock in the forenoon, the assured sustained personal injuries which occasioned his death about the same hour on the ninety-iirst day thereafter, excluding the day of date of the accident from the. computation ; the whole period being included witliin the twelve months. Held, that by no method of computation of time could the death be regarded as occurring within ninety days from the happening of the accident. Held, also, that the clause limiting the liability of the insurers to the occurrence of death from the injuries within ninety days from the happening of the accident Was not inconsistent with the pro" i Post, S53. "Post, 567. 3 4»(e, 206. * Ante, 22^. 264 SUPREME COURT OF MASSACHUSETTS. Perrj- v. Provident Life Insurance and Investment Company. vision by which the insurance was expressed to be " for the period of twelve months ; " nor could it be construed to refer only to such injuries as should occasion death within ninety days after the twelve months. Contract on a policy of insurance upon the life of Calvin Perry, the plaintiff 's husband. In the superior court, on agreed facts, the material part of which is stated in the opinion, judgment was ordered for the defendants ; and the plaintiff appealed. A. S. Hartwell, for the plaintiff. J. D. Ball, for the defendants. Chapman, C. J. The policy was made on the 5th of October, 1866, and contains the following clauses : " This policy of insur- ance is for the period of twelve months, commencing at 12 o'clock (noon) on the 5th day of October, 1866, and terminating at 12 o'clock (noon) on the 6th day of October, 1867," " against loss of life, in the sum of two thousand dollars, to be paid to Mary Ann Perry, and her legal representatives, within ninety days after sufS- cient proof that the assured, at any time after the date hereof and before the expiration of this policy, shall have sustained personal injury caused by any accident within the meaning of this policy and the conditions hereto annexed, and such injuries shall occasion death within ninety days from the happening thereof; suflBcient proof being furnished to this company." It contains another clause insuring against personal injuries which shall not be fatal. It is agreed that on the 11th of December, 1866, at 9 o'clock in the forenoon, the insured met with an accident within the meaning of the policy, in consequence of which he died on the 12th of March, 1867j about 9 o'clock in the forenoon. No computation of time will bring the death " within ninety days from the happen- ing " of the accident. But the rule of computation is stated in Atkins V. Sleeper, 7 Allen, 487. When time is computed from an act done, the general rule is, to include the day. When it is com- puted from the day of the act done, the day is excluded. The lan- guage of this instrument requires that the computation be made from the time of the act done, namely, the accident. But it is contended that, as this is an insurance for twelve months, the provision by which it is attempted to exempt the com- pany from liability for the death of the insured, happening from a cause within the meaning of the policy, during said term, is incon- sistent with the general object and tenor of the policy, and is void. No such inconsistency is apparent to the court. On the contrary, MARCH, 1868. 265 Cluflf V. Mutual Benefit Life Insurance Company. the policy clearly describes the cases in which the loss of life shall make the company responsible, and limits the liability to such cases. It is further contended that, if the provision in the policy that the injuries shall occasion death within ninety days can have any legal force or effect, it must be construed to mean such injuries as shall occasion death within ninety days after the termination of the twelve months. But, as the ninety days are expressed to be from the happening of the accident, this construction cannot be adopted. It is said that unless the clause be void, or be construed as above stated, an effectual life insurance for more than ninety days was impossible. If this were so, it wpuld be a result of the terms of the contract upon which the action is brought. But here is simply an insurance against certain accidents which may happen within a given time, and result fatally within a given time after they hap- pen. The loss in this case came very near being within the terms of the policy, but was not quite within them. Judgment for the defendants. See Campbell t. International Life Ass. Society, post, 522, Chaelotte C. Cluff vs. Mutual Benefit Life Insurance Company. (99 Mass. 317. Supreme Court, March, 1868.) Proof of death. — On the trial of an action upon a policy of insurance made payable to the plaintiff after due notice and proof of the death of the insured, the plaintiff, to show such notice and proof, called a witness who testified that he delivered to the insurers some affidavits, together with some cuttings from newspapers and letters between persons not parties to the action. All of these the insurers produced; and the plaintiff put the affida- vits in evidence, but declined to put in evidence the cuttings or the letters, and the judge refused to require him to do so, or to permit the insurers to do so themselves. Held, that the refusal was not a valid ground of exception, unless it plainly appeared that the in- surers were prejudiced thereby; and that they were not so prejudiced, if the fact of the death of the insured was sufficiently shown, whether the affidavits alone, or all the papers together, were considered as the proof thereof furnished to them by the plaintiff. Death in hnoum violation of law. Trial and acquittal of slayer. — On the trial of an action on a policy of insurance upon the life of the insured, made on condition that it should be void if he should die in the known violation of any law, the record of the trial and acquittal by a court of competent jurisdiction of a person who killed the insured is incompetent to prove that the condition was broken. Construction of policy of mutual company. — In a policy of insurance, the fact that it was made by a mutual company with one of its members upon his life gives to words used for a definite purpose and applied to transactions of a clearly defined character, such as a provision that the policy shall be void if the insured shall die in known violation of any law, no significance different from what would be their fair construction in a similar con- tract between any parties. 266 SUPREME COURT OF MASSACHUSETTS. Cluff ft Mutual Benefit Life Insurance Company. Death in known violation of law. — On the trial of an action on i policy of insurance upon the life of the insured, made on condition that it should be void if he should die in the known violation of any law, evidence was introduced tending to show that he was killed while doing what would constitute either robbery or larceny unless he acted under a be- lief which would avoid the otherwise criminal character of his acts. Beld, that instruc- tions to the jury were erroneous which permitted them to understand that such a belief tieed not be a belief in his legal right to do the acts, but might be a belief in a right of self-redress by reason of the disturbed condition of the country, the inefficient adminis- tration of the laws, or otherwise. Held, also, on a new trial upon the same evidence, that the fact that the judge did not comply with a request to instruct the jury that the in- ured must be presumed to have known the civil law of the state where he was killed was not a valid ground of exception, if he did instruct them that the insured had no right to do the acts in the commission of which he was killed, and that he must be pre- sumed to have known the criminal law of the state. Contract on a policy of insurance made by a mutual life insur- ance company to the plaintiff's husband, Matthew J. Cluff, on his life, in the sum of $3,000, payable to the plaintiff " within ninety days after due notice and proof of the death of the said Matthew," and containing a clause declaring the policy void in event that said Matthew " shall die " " in the known violation of any law of these states or of the United States," or of any other country which he may be permitted under this policy to visit or reside in." At the third trial in the superior court, before Putnam, J., after the decisions reported 13 Allen, 308-319, [awie, 208,] the plain- tiff, to show notice and proof of the death of her husband to the defendants, called Thomas J. Alexander as a witness, who testified that he delivered to the defendants' agent affidavits of the plaintiff and himself and Francis Bugbee ; which affidavits, being produced by the defendants on notice, were put in evidence, and in substance were as follows : The affidavit of the plaintiff stated the age of her husband, and where he resided in 1854, when the policy was made ; the places of his subsequent residence until 1859 ; and that in 1859 he re- moved to Massachusetts and resided here until, on December 23, 1868, he started to go to New Orleans. The affidavit of Alexander set forth that he was well acquainted with Matthew J. Cluff, who lived at Waltham, and whom he knew to be the person on whose life the policy hi question was issued ; that said Cluff left Boston on or about December 23, 1863, to take passage in the steamer Morning Star for New Orleans ; that he saw Cluff in New York on December 26, when Cluff showed him his ticket for the passage, and said that he would leave by that steamer on the afternoon of that day ; that he afterwards learned that Cluff did so sail ; and MARCH, 1868. 267 Cluif V. Mutual Benefit Life Insurance Company. that he entertained no doubt of his being the person named Cluff described in Bugbee's affidavit. The affidavit of Bugbee stated that he was a physician residing in the parish of Ascension in Louisiana; that he sailed from New York for New Orleans on December 26, 1863, on the steamer Morning Star, with Matthew J. CluflF as a fellow-passenger, and knew said Cluff well from said December to the time of his death, and had " been residing with him on the same plantation for some months up to the time of his death ; " that on February 25, 1864, he and Cluff were together upon the bank of the Mississippi River, when Cluff was shot through the heart by William P. Cox, and died in a few minutes ; that no coroner's inquest was held, the country being under mili- tary rule, but that he procured the attendance of the military offi- cer of highest rank on duty in the neighborhood, (naming the officer,) who examined the body and delivered to him the effects thereon ; that he took charge of the burial of the remains, and placed them in a tomb in New Orleans ; and that the deceased, according to his own statements and those of others, was from Massachusetts. Alexander further testified that, at the same time with these affidavits, he delivered to the defendants' agent two slips cut from newspapers published in New Orleans, and two letters written from New Orleans by one George W. Wilder and addressed here to a person (other than the plaintiff) who held a policy of insur- ance from the defendants on Cluff 's life. The defendants pro- duced these cuttings and letters, and requested the judge to require the plaintiff to read them to the jury ; but the judge declined to do so. The defendants then offered, themselves, to read them to the jury, " on the ground that the same were part of the preliminary proof, and showed that no cause arose under the policy, and that the assured died in the known violation of law ; " and they renewed this offer on opening their defence : but the judge both times re- fused to allow them to be read. These cuttings and letters were produced at the argument in this court, and their substance, so far as it is material, is stated in the opinion. The rest of the evidence is stated in the report of the former trial of this case, ante, 208-211. The defendants then requested the judge to instruct the jury " that a claim made by Cluff of indebtedness of Cox for feed, and that he would take his horses for it, was not such a claim, however 268 SUPREME COURT OF MASSACHUSETTS. Oluff ti. Mutual Benefit Life Insurance Company. honestly made, as would change the nature of the forcible taking of the horses of Cox, so that such taking would not be robbery or a known violation of law ; '' and " that a wrongful taking of the horses of Cox by Cluff by force was a trespass with force, and a criminal offence, and was continued as long as the taking of the horses continued." " The judge declined so to rule ; but, among other things, instructed the jury t^at, to avoid the policy on the ground that the insured died in known violation of law, it must be shown that the insured died in consequence of a voluntary criminal act committed by him, and known by him at the time to be such, and not in consequence of a mere trespass upon property ; and that there was a legal presumption that he knew the law. He then defined the offences of robbery, larceny, and assault and battery, (to which no exception was taken,) and further instructed the jury that the taking of the horses from Cox, if done under an honest claim of right, however ill-founded, would not constitute the crime of robbery or larceny ; that there must be a felonious intent in the crimes of robbery and larceny ; that if Cluff took the property with an honest belief that he had a claim of right, it was not larceny, nor was it robbery, though done with force and violence ; that if Cluff committed an assault on Cox, and was shot while the assault continued, the plaintiff could not recover ; but if that assault had entirely ceased, and, after it had ceased. Cox, through revenge, or to prevent the seizure of the horses, shot Cluff, and this was a new and independent event, and not a continuance of the original affray, then the condition of the policy was not avoided. But, in deter- mining this question, the jury were to consider how far, if he did commit the assault, he could be considered as having desisted from it, while persisting in the act which occasioned the affray ; that if Cluff in the first instance committed the assault, and the firing of the pistol was a part of the same continuous transaction, then the condition of the policy was violated. They were also to be satis- fied that the death was caused by the criminal act, or resulted from it, so that, if the criminal act had not been committed, the death would not have taken place." The jury returned a verdict for the plaintiff; and the defendants alleged exceptions, which were argued in November 1867. A. 0. Bmdley (of New York) ^ O. W. Loring, for the defend- ants. ff. 0. Eutchins ^ A. S. Wheeler, for the plaintiff. MARCH, 1868. 269 Cluff ». Mutual Benefit Life Insurance Company. Wells, J. One question in issue at the trial was whether the plaintiff had, ninety days prior to the institution of the suit, fur- nished to the defendants sufficient proof of the death of Matthew J. Cluff, whose life was insured, as required by the terms of the policy. To maintain that issue on her part, the plaintiff put in certain affidavits by which that proof had been made, and which were produced in court by the defendants upon notice. The de- fendants also produced certain extracts from newspapers, and let- ters between persons not parties to this suit, which had been handed to the officers of the company at the same time with the affidavits, and constituted, as was contended, a part of the evidence furnished by the plaintiff to satisfy them of the death of Cluff. These ac- companying papers the defendants' counsel claimed to have read to the jury, as a part of the preliminary proofs. It certainly cannot be maintained that these papers would have been competent evidence upon the main issue ; and that position has not been insisted upon. But if they formed a part of the pre- liminary proofs, and were furnished to the defendants as such, the plaintiff' had no right to prove this branch of her case by using a part only of the means by which she had sought to make out that preliminary proof. It does not appear upon what ground the judge who presided at the trial excluded these papers. Perhaps we might reasonably infer that he did so upon evidence from which he was satisfied that in fact they formed no part of what was intended and received as preliminary proof of the death. But the defend- ants' claim was otherwise ; and the evidence reported indicates that they were furnished to aid or corroborate the other proofs. It would seem, therefore, that the exclusion was on the ground that the papers were not competent evidence upon the main issue ; overlooking the issue which was raised by the denial of the alleged preliminary proof of death. But, however that may be, we are satisfied that the exclusion of the papers could not occasion any such injury to the defendants as to require that the exception for that cause should prevail. The papers were clearly inadmissible upon the principal issue. Upon the question as to the sufficiency of the preliminary proof, there can be no doubt that the fact of death was sufficiently shown, whether the affidavits alone or all the papers together are to be regarded as constituting that proof. The contract requires "due notice and proof of the death." It does not require the facts and circumstances attending the death to 270 SUPREME COURT OF MASSACHUSETTS. Cluff D. Mutual Benefit Life Insurance Company. be set forth in the proofs. In this respect, as well as in the fact that the statements are not sworn to and do not even purport to be made by the plaintiff herself, the case differs essentially from that of Campbell v. Charter Oak Insurance Co. 10 Allen, 213. When an apparent ground of defence is disclosed by a separate and un- necessary narration of circumstances, and the proofs required by the policy are complete without that narration and disclosure, it cannot be said that the party has failed to comply with the condi- tion imposed upon his right to litigate his claim ; and the effect of such disclosure to defeat th6 action must depend upon the degree to which the plaintiff is bound by the statement. If not sworn to by the plaintiff, nor treated by him in such manner that he is con- cluded by his conduct, the whole question will be open to explana- tion and proof upon the main issue, subject to the usual rules of evidence. We cannot see that the plaintiff was in any respect concluded, or the defendants misled by the 'account of the trans- actions connected with Cluff's death which were contained in the papers tliat were excluded at the trial ; nor that the defendants have been deprived of any benefit which could have been properly derived from their admission. The answers to cross-interrogatories relative to the trial of Cox were properly excluded, and that exception i^ not urged here. The record of the provost court, showing the acquittal of Cox, was not competent for this defence. There is no privity of parties, nor identity of issues. The acquittal of Cox could not establish the fact that Cluff' was guilty of a crime ; but only that the of- fence of Cox was excused by the circumstances of provocation. Cluff^s conduct was incidentally involved. It was not the subject of the judgment that was rendered. The law applicable to the conduct of Cluff, as it would affect him, could riot be judicially de- termined in the trial of Cox. The remaining exceptions relate to the proper application of the law, as determined at the former hearing in this case, to the testi- mony showing the circumstances of Cluff^s death. In this connec- tion we are asked to revise that decision, in consideration of the fact that this policy is a contract between a mutual company and one of its members. But we cannot think that that circumstance should modify the construction which has been given to the terms of this contract. The relations of the parties are always to he considered in seeking the true interpretation of their language MARCH, 1868. 271 Cluff e. Mutual Benefit Life Insurance Company. But their words, used for a definite purpose and applied to a trans- action of a well understood character, must be held to convey the meaning and force which is ordinarily attached to them. We see no reason to give the words of this contract any significance differ- ent from what would be their fair construction between any par- ties. Among the points already decided are : 1st. That " violation of law," as used in this policy, means crime ; and " known violation of law " indicates a voluntary criminal act. 2d. That offences against the person or property of another, such as are recognized and treated as crimes by the common law, and the laws of civilized countries generally, will be presumed to be crimes in Louisiana. 3d. That the burden of proving that the insured died in the known violation of law is upon the defendants. 4th. That Cluff must be presumed to know the criminal laws of the government under the jurisdiction of which he was. The testimony in regard to the circumstances under which Cluff met his death tended to show that he was engaged in the commis- sion of acts which would constitute either robbery or larceny, un- less he acted under a belief that he had some legal right by which his conduct would be justified. Whether the two depositions, from which the whole testimony upon the subject was derived, fur- nished evidence that he acted under such a belief, seems to have been a point of contest. There was no evidence of any title or claim of title ; nor any direct evidence of the existence of a right of lien. The depositions show that Cluff made the claim of a debt due him from the owner of the horses ; and that he declared his purpose to take the horses to pay it. Neither deposition states that Cluff, in words, set up any right of lien, or other legal right to hold or to take the property of Cox. But the deposition of Bugbee indi- cates, inferentially, that Cluff might have supposed that the horses could legally be held as security for his debt, inasmuch as it was claimed to have arisen from the keeping or feed of the stock upon the plantation of which Cluff was lessee. The instructions upon this point were undoubtedly intended to correspond with the opinion given by this court upon the exceptions taken at the last previous trial. They do so to the extent of adopt- ing in part the language of the opinion, to wit, that the " taking of the horses from Cox, if done under an honest claim of right, how- ever ill-founded, would not constitute the crime of robbery or lar* 272 SUPREME COURT OF MASSACHUSETTS. Cluff V. Matual Benefit Life Insurance Company. ceny." But, in the opinion, that proposition is followed, in the next clause of the same sentence, by the explanation which limits the " claim of right " intended to one whereby the party sincerely " believes that he is legally justified in taking property ; " whereas the instructions contain no qualification nor suggestion limiting it to the claim of a legal right. This might not be important, if we were able to see, or could properly assume, that these instructions were applied only to that suggestion of a claim of right by way of lien which is founded upon the deposition of Bugbee, namely, the right to hold the stock as security for what was due CluflF from the owner, on account of his previous occupation of the plantation of which ClufF had a lease. Such a claim would be of a legal right, if the jury should find that it was in fact made. But the evidence that Cluff claimed or that he believed he had such a right was very slight. The defendants' counsel contended that the evidence showed no claim to have been made by ClufF, except of a debt against the owner of the horses ; and that he avowed his purpose to seize the horses by way of self-redress. In this view of the evidence, he asked for the following instruction, namely, " That a claim made by ClufF of indebtedness of Cox for feed, and that he would take his horses for it, was not such a claim, however honestly made, as would change the nature of the forcible taking of the horses of Cox, so that such taking would not be robbery or a known violation of law." This position of fact was so far warranted by the state of the evidence as to entitle the party to instructions, not perhaps in the form as requested, but such as would be adapted to the case if the jury should find the facts to be as the defendants assumed. Applying the instruction given, as reported, to this view of the facts, it seems clear that too great latitude was allowed for the jury to take into account any loose opinions of right which they might suppose ClufF to have formed. It would seem to per- mit a tnere opinion or theory of abstract right, which the jury might think ClufF had come to entertain honestly, and chose to act upon regardless of positive law, to exempt him from criminal re- sponsibility. A claim of right which can have this effect must be a claim of legal right. It is not enough that it be asserted. There must be a real and not a pretended belief that such legal right ex- ists. It involves more than a belief in the right to disregard law for the purpose of self-redress. We are not informed upon what theory the counsel of the MARCH, 1868. 273 Cluff D. Mutual Benefit Life Insurance Company. plaintiff would contend that Cluff acted under an honest claim of right, assuming the facts to be as the defendants present them ; nor does it appear that the plaintiff insisted, at the trial, that there would be any pretence of legal justification upon that assumption. But the instructions do not point to any particular claim of right. They are applicable to the defendants' view of the evidence as well as to that of the plaintiff. They should therefore leave no doubt in the minds of the jurors that nothing less than a claim of a legal right, or an authority of law, was intended ; especially if the atten- tion of the court was called to the defendants' view of the evidence, in connection with this instruction. A majority of the court are of opinion that it appears from the exceptions that the attention of the presiding judge was so directed ; and that the instructions given were not sufficiently explicit and qualified in the respects already considered. The plaintiff insists, however, that this whole subject was brought under discussion by the exceptions taken at the last previous trial, and fully and conclusively determined by the decision then made, so that no qufestion is now open upon this part of the case. We have indicated the points in which the instructions given at the last trial fail to conform to the real purport of the opinion by which the former decision was announced. It may be observed also, that the instructions which were then brought up for our revision differ from the present, in that the claim of right which was then held to disprove felonious intent was confined to the case of a " belief that he had a legal right " to take the property. As thus qualified, and applied to the case then presented upon the exceptions, this court did affirm the instruction. It is true that the defendants' counsel did discuss, at that time, some of the points now considered. But the plaintiff's counsel contended, as appears from the brief sub- mitted by them, that no such question was open upon the excep- tions, inasmuch as the defendants' prayers in relation thereto all involved conclusions of fact ; and the court were inclined to the same view. The burden is upon the defendants, as has been already decided, to satisfy the jury that the act of Cluff which occasioned his death was a voluntary criminal act. This requires the defendants to overcome any inference, which may be drawn from the testimony, that in attempting to take the horses he acted under an honest belief that he had some legal right or authority which entitled him 18 274 SUPREME COURT OP MASSACHUSETTS. ClufFs. Mutual Benefit Life Insurance Company. to take them. But if the defendants should be able to satisfy the jury that Cluff had no color of title or right in or to the property, nor of legal authority to take it ; and that he made no claim of any such title or right, nor of any authority, except that, having a debt against the owner of the horses, he claimed a right to seize his property in payment, by way of self-redress without regard to law, we think the defendants would then be entitled to a verdict. Such a claim would be a claim of the privilege to commit a crime, which the law will not recognize to be honestly made as a claim of right. We regret that it should be necessary to submit the case for a third time to a jury ; but it is of more importance that exact justice should be administered than that the litigation should be closed at any particular stage. As the case was left by the last trial, it would appear that the verdict may have been rendered for the plaintiff, although the jury were satisfied that Cluff had no pretence of any title, lien, or other right, nor of any legal authority, merely because they supposed that he might have entertained an honest belief or opinion that in consequence of the state of the country and the want of eificient administration of the laws, he had a good right, from necessity or otherwise, to take redress into his own hands without regard to law. Such is not the result of our decision upon the former occasion, and such was not, as we understood the case, the fair interpretation of the instructions then brought up for our decision. In accordance with these views it will be necessary that a new trial should be had. JExeeptions sustained. At the fourth trial, before Ames, C. J., no question was made as to the notice and preliminary proof of the death of the insured ; and the evidence produced by the plaintiff in support of her claim was the same as was offered at the former trials, with some addi- tional citations from the laws of Louisiana. The defendants requested the judge to adopt, in instructing the jury, the following propositions : " That by the laws of Louisiana, as well as by the common law, Cluff had no right of lien or priv- ilege on or to the horses, or either of them, in the possession of Cox, even if it had been shown that the horses, or either of them, had eaten feed belonging to Cluff; that every person must be pre- sumed to know the civil equally as the criminal law of the govern- » MARCH, 1868. 275 Cluff V. Mutual Benefit Life Insurance Company. ment under the jurisdiction of which he is found ; that Chiff must he presumed to have known that he was not legally justified by the laws of Louisiana in taking the property in question, unless there be evidence that he did in point of fact believe that the actual laws of Louisiana authorized him to do what and as he did in the seiz- ure ; that the threat to seize Cox's horses for the debt, whether real or pretended, was, unless a seizure by due process of law was there- by intended, a threat to do an act illegal by the laws of Louisiana ; that a threat to do an act illegal by the laws of Louisiana is not of itself evidence on which a jury may infer that the person making such threat believed the act in point of fact legal by those laws ; that the seizure of the horses in the manner described was illegal by those laws, and the fact of doing an acf illegal by those laws is not in itself evidence from which a jury may infer that the party doing it in fact believed the seizure actually legal under those laws ; that it is not enough that the jury supposed that Cluff might possibly have thought that he had a right to seize the horses in the way he did, but the jury must themselves believe as a real fact that Cluff believed as a real fact that he had a right by the actual law of Louisiana to seize the property as he then and there seized it ; that Cluff having in fact no right under the laws of Louisiana to seize the property in the way he did, the belief that he had such right is an affirmative fact to be proved by the plaintiff, and, in the absence of such proof, he must be deemed not to have believed it ; and that the jury, in the absence of any law giving a lien or privilege for feed, are not warranted in finding, if the plaintiff's evidence is merely to the extent that the owner of the horses owed a bill for feed to Cluff, that Cluff believed he had a legal right to take the horses for it." The judge did not adopt the instructions thus requested ; but did instruct the jury substantially " that, the execution of the policy, the notice and preliminary proofs, and the fact of Cluff 's death in Louisiana being admitted, the only question was, whether the circumstances of his death were such as within the terms of the proviso in the policy to exonerate the defendants from paying the amount of the policy ; that the burden of proof was on the de- fendants to show that Chiff died in the known violation of the laws of Louisiana, that is, in doing some voluntary criminal act ; that offences against the person or property of another, recognized and treated as crimes by the common law, and the laws of civil- 276 SUPREME COURT OF MASSACHUSETTS. Cluff V. Mutual Benefit Life Insurance Company. ized countries generally, are to be presumed to be crimes by the laws of Louisiana; and that Cluff must be presumed to have known the criminal law of that state ; that the question then would be, whether he was engaged in doing a criminal act at the time ; that it was conceded that he was trying to get possession of the horses without the consent and against the wUl of the person hav- ing them in charge ; that what iie was trying to do might be rob- bery, or larceny, or an act which might not have proceeded from a criminal intent ; that to make it out robbery or larceny, (and it was immaterial which, if it was either,) it must appear that he was taking the property, with a felonious intent, without the consent and against the will of. the person having it in charge ; that it was clear on the facts that he had no right to take it, and the mere fact that he was a creditor would not give him a right to help him- self to the property of his debtor ; that there was no evidence that by the laws of Louisiana he had any lien on the property ; but that the defendants were bound to prove that it was not only a wrong- ful, but also a criminal act ; and that if Cluff had not lost his life in the attempt, and had accomplished his object, and had been in- dicted for robbery or larceny, he would be entitled to an acquittal, if it appeared that he acted under an honest belief that he had a legal right to take the property, however ill founded that belief should prove to be." And he further instructed them as follows: " Had he such a belief, that is, a real and not a pretended belief, that lie had authority by law so to do ? A mere opinion or theory of abstract right, regardless of law, would not be a justification. A mere loose opinion that it would be just and right, independ- ently of and without regard to law, to take the property, would not be such a belief. In judging of the existence of such a belief, the jury would have a right to consider what reasons and grounds of belief he had. If he had no right to take the property, and no show or color of such a right, and no reason to suppose he had such a right ; or if he ought to have known better, and the jury think he did know better than to suppose he had such a legal right ; then by the terms of the proviso the defendants are enti- tled to a verdict. If the defendants overcome any inference that may be drawn from the testimony that in attempting to take the property Cluff acted under an honest belief that he had some legal right to take it ; if they satisfy the jury that he had no color of title or right in or to the property, nor of legal authority to take it; MARCH, 1868. 277 Cluff V. Mutual Benefit Life Insurance Company. and that he made no claim of any such title or right, or of any au- thority, except that, having a debt against the owner, he claimed a right to seize the property in payment by way of selt-redress, without regard to law, the defendants would be entitled to the ver- dict. Such a claim would be a claim of the privilege to commit a crime, which the law will not recognize to be honestly made as a claim of right. A claim to self-redress on the ground of the un- settled state of the country, and any supposed difficulty of getting legal redress, would not be such a claim of right as the law would recognize as furnishing a legal excuse for an act in other respects unlawful." The jury again found for the plaintiff; and the defendants al- leged exceptions, which were argued on March 21, 1868, by the same counsel. Chapman, C. J. This case is now before us for the fourth time upon the same evidence as to the circumstances under which Cluff came by his death. The learned judge who presided at the first trial ruled that upon the evidence the defendants were liable as matter of law ; but the testimony of the two witnesses which is reported differs materially as to the particulars of the transaction, the statements of one of them tending to prove that Cluff came by his death in the known violation of criminal law, and the statements of the other tending to show- that he was not thus killed. The court held that it should have been left to the jury to decide, under proper instructions, how he came by his death. Upon a second trial, the case was submitted to the jury ; but, exceptions having been taken to the instructions, it was held that they were inaccurate in one particular ; and it was indicated pretty fully in the opinion what the instructions should be. On the fourth trial the rulings were in substantial conformity with this indication. The defendants presented at the trial, and requested the court to adopt, in instructing the jury, several legal propositions. They were not adopted in form ; but were substan- tially adopted, with a single exception. Among them was the proposition that Cluff must be presumed to have known the civil law of Louisiana. This was not adopted. But, the judge having stated to the jury that Cluff had no right to take the property, the material question to be submitted to them on this point was, whether he took it with a felonious intent, and not whether he 278 SUPEEME COURT OF MASSACHUSETTS. Wason V. Colburn. took it with a knowledge that he was violating the civil law of the state. As to the felonious intent, the instruction given was, that he must be presumed to have .known the criminal law of Louis- iana, and we think this was sufficient, because it includes all that he is presumed to have known respecting his civil rights, so far as such knowledge affects criminal" intent. Beyond this, the judge was not bound to go. If he had given the instruction requested, it would have been necessary to explain its bearing on the case, in order to prevent the jury from being misled by it into the belief that they must find for the defendants if they should believe that ClufF knew he was acting in violation of the civil rights of the person who killed him. It was within the discretion of the judge to state the general proposition which covered the whole subject, and omit the more particular statement of a subordinate proposi- tion that would require explanation in order to guard tlie jury against being misled by it. Exceptions overruled. As to death in known violation of law, see Harper v. Phcenix Ins. Co- post, 300, 301 ; and cases cited. Elbeidge Wason, administrator, vs. William Gt. Colbueit, administrator. Same vs. William G. Colbuen. (99 Mass. 842. Supreme Court, March, 1868.) Title to policy. AdmhttstraHon — A policy of insurance, effected by the assured on his life, and expressed to he payable, on his death, "to his heirs or representatives," is not ex- pressed to be for the benefit of any third person within the meaning of the Gen. Sts. c. 58, § 62, but is payable to the administrator as assets of the estate of the deceased ; and oral declarations of the assured, after receiving it, that he intended it for the benefit of his son, are inadmissible to vary its construction, and insufficient to raise a trust in respect to its proceeds. Two ACTIONS OF CONTEACT by the administrator of the estate of Henry E. Sanderson ; the first against William G. Colburn as administrator of the estate of Elbridge L. Sanderson ; and the second against Colburn individually ; to recover, as money received by the defendant to the plaintiflF's use, the proceeds collected by the defendant from the John Hancock Life Insurance Company, of a policy of insurance by them made on the life of said Elbridge L. The cases were submitted together for the determination of the full court on the following facts agreed : The John Hancock Life Insurance Company issued to Elbridge MARCH, 1868. 279 Wason V. Colbum. L. Sanderson the policy in question, in July, 1866, as an endow- ment policy for ten years, containing this clause : " The said com- pany do hereby promise and agree to and with the said assured ■well and truly to pay the sum insured to the said assured, or, in case of prior decease, to his heirs or representatives." The as- sured died in September, 1866, having survived his wife, and leav- ing as his sole heir his minor son, Henry E. Sanderson, who died in September, 1867. Colburn, as administrator of the estate of Elbridge L., which was insolvent, collected from -the insurers $4,583.64 upon the policy, in January, 1867, and included the sum in his inventory. It was further agreed (if the fact was admissible on the question of the construction of the policy) that soon after effecting the in- surance Elbridge L. declared orally that it was intended for the benefit of his said son. 0. A. Phillips, (I). A. Grleason with him,) for the plaintiff. The policy was a contract to pay a certain sum either to the as- sured in July, 1876, or to the parties designated, in case of his prior death ; which last having occurred, it became an ordinary contract of life insurance, payable to a third person. Valton v. National Assurance Society, 22 Barb. 9, \jpost, 409.] The plaintiff's intestate is the party designated in the policy, for whose benefit the insurance was made ; and the title to the proceeds of the policy vested in him upon the death of the assured. Gen. Sts. c. 68, § 62. Loos V. John Hancock Insurance Co., decided in the supreme court of Missouri, October term, 1867, [41 Missouri, 538, post, 815.] The term "heirs " is a good designatio personm. Shaw v. Loud, 12 Mass. 447. 2 Washb. Real Prop. 274. This construction of the policy would be undoubted, were it not for the term " representa- tives ;" hut that term, being more general, cannot be allowed to con- trol or contradict the term " heirs," which has a specific meaning. Lymanv. Olark, 9 Mass. 238. Child or children satisfies the mean- ing of the term " representatives ; " 2 Steph. Com. (5th ed.) 213 ; Mayo V. Boyd, 3 Mass. 18 ; Falin v. Sills, 1 Myl. & K. 470 ; and, being consistent with " heirs," is to be adopted as the interpretation of the term, rather than executor or administrator, which is in- consistent with the preceding term, and renders it impossible to ascertain the party in interest from the contract. It may be that the parties intended to follow the words of the statute. Gen Sts. c. 58, § 62. The utmost which the defendant can claim is, that 280 SUPREME COURT OF MASSACHUSETTS. Wason V. Colburn. the language is ambiguous ; and in this view of the case evidence of the intentions and declarations of the parties to the contract is admissible to show the meaning which they attached to the terms used. Even if the policy was for the sole benefit of the assured, his declarations amount either to an assignment, or to a declaration of trust for the benefit of the plaintiff 's intestate. W. Gf. Colburn, pro se, was not called upon. Chapman, C. J. The policy is not expressed to be for the benefit of any third person within the meaning of Gen. Sts. c. 58, § 62?- It was primarily intended to be for the benefit of the as- sured himself, being an endowment policy for the period of ten years. In case of his decease within that period, it was made, by its terms, payable " to his heirs or representatives." Evidence of his oral declarations, made after he received it, are inadmissible to vary its construction. Nor are mere statements that it was in- tended for the benefit of his son sufficient to constitute a trust. Upon his death intestate within the ten years, his administrator, who is his personal representative, became entitled, by well settled principles of law, to collect the amount due, and hold it as part of the estate of the intestate. An unpublished report of the case of Loos v. John Hancock Irir surance Co.,^ recently decided by the supreme court of Missouri, has been cited, in which a different construction of the word " representatives " was given. It was held that a child who was the sole heir of the assured was entitled to the money as against the administrator, on the ground that when it is intended that it shall go to the administrator the invariable language of policies is " to pay the said assured, his executors, administrators, and as- signs ; " and that the changing of the language and use of terms of different expression clearly import that the money was intended for the benefit of the heirs or next of kin, and that it was not to be administered as assets by the executor or administrator. In the present case, the language habitually used by the company is not stated ; nor would evidence be admissible of the intent with which 1 The material part of the Gen. Sts. c. 58, § 62, is as follows: "When a policy is effected by any person on his own life or on the life of another, ex- pressed to be for the benefit of such other or his representatives, or a- third per- son, the person for whose benefit it was made shall be entitled thereto against the creditors and the representatives of the person effecting the same." 8 Post, 315. OCTOBER, 1868. 281 Leonard v. Washburn. they used the language of the poHcy. The term " representatives " legally indicates administrators, and we cannot construe it as ex- cluding them. Judgment for the defendant. Nathaniel E. Leonard vs. Isaac Washburn. (100 Mass. 251. Supreme Court, October, 1868:) Recovery of premium paid. — An agent of a life insurance company received the application of a person for insurance therein on his life in a certain sum, and a draft accepted by him for the amount of the premium on such a policy; negotiated the draft; obtained from the company, and delivered to the insured, the policy in the usual form of policies of life in- surance, containing a condition that it should be void if the insured should be engaged in running a steam-engine ; and then forwarded to the company the proceeds of the draft. But by the general instructions of the company to its agents he had no authority to re- ceive the premium thus, nor until the issue of the policy, nor without giving the com- pany's receipt therefor, signed by its president; which receipt he received from the com- pany with the policy, but never delivered to the insured. Before the agent forwarded to the company the proceeds of the draft, the insured, who sometimes was engaged in run- ning a steam-engine, but did not disclose the fact in applying for the policy, objected to that condition in the polic}'; and the agent promised to make it *' all right." Afterwards the agent procured some modification of the condition ; but the insured was not satisfied, and returned the policy to the agent, and demanded a return of his draft, which was re- fused. Seldj that, after paying the draft at its maturity to the person to whom the agent negotiated it, the insured could not recover from the agent the amount of such payment. Held, also, that if an agent of a foreign insurance company makes an insurance in this commonwealth without complying with the provisions of the Gen. Sts. o. 58, the insured cannot by reason of such non-compliance recover the amount of the premium which he paid for the policy. Contract to recover the amount of a draft for fifty-three dol- lars and eighty cents, dated January 1, 1867, and payable in sixty days, with interest, drawn by the defendant on the plaintiiBF, by him accepted and indorsed to the defendant, and by the defendant in- dorsed to James H. Anthony, to whom the plaintiff paid it. The grounds on which the recovery was sought were, that the accept- ance of the draft was obtained from the plaintiff by the defendant by fraud, and without consideration. Writ dated November 25, 1867. At the trial in the superior court, before Devens, J., evi- dence was offered which tended to show that the facts were as fol- lows : "On January 4, 1867, the defendant, who had not given the bond required of agents of foreign insurance companies by the Gen. Sts. c. 58, § 69, solicited the plaintiff to effect an insurance upon his life in the Mutual Life Insurance Company of New York, a foreign insurance company ; and the plaintiff agreed to be so in- 282 SUPREME COURT OF MASSACHUSETTS. Leonard v. Washbnm. sured, signed an application to the company for that purpose, made no stipulation with the defendant as to any conditions in the policy, except that it was to be for the sum of five thousand dollars, and payable to his wife, informed the defendant that he was agent at a tack manufactory in Dighton, and did not inform him that he was engaged in managing or running a steam-engine, and thereupon also accepted the draft for fifty-three dollars and eighty cents, the amount of the first quarter of the annual premium upon such pol- icy, payable in sixty days with interest. The defendant had no authority, under the general instructions of the company to its agents, to receive the premium in this manner, nor until the policy was issued, and without giving the company's receipt therefor, signed by the president, which receipt was afterwards received by the defendant with the policy, but never delivered to the plaintiff. The defendant negotiated the draft on January 17 to Anthony, to whom it was paid by the plaintiff after its maturity ; and, on Feb- ruary 1, the defendant transmitted to the company the amount of the premium, less his commission as agent. The plaintiff received from the defendant by mail, on or about January 20, the policy, dated January 1, issued by the Mutual Life Insurance Company, made in the usual form of life insurance policies, reciting that ' in consideration of the representation made to /them in the application therefor, and of the sum of fifty-three dollars and eighty cents to them duly paid,' and for other considerations therein expressed, said company insured the life of the plaintiff in the amount of five thousand dollars ; and containing one condition among others, that the policy should be void if the assured should be personally en- gaged in managing or running a steam-engine, which was a usual condition in such policies. Within a few days after receiving this policy, and before February 1, the plaintiff went to Taunton to see the defendant, and objected to this condition, and offered to give up the policy, but did not demand back the draft or the premium. The defendant said he would make it all right, and obtain from the company permission for the plaintiff to run a steam-engine ; and did afterwards obtain from the company permission for the plaintiff ' to act occasionally in working a small steam-engine, but upon ex- press condition that, if he should die in consequence of accident resulting from said occupation, the policy should be null and void.' This permission was offered to the plaintiff, but was not satisfactory to him ; and thereupon, in March, before the draft became due, the OCTOBER, 1868. 283 Leonard v. Washburn. plaintiff returned the policy to the defendant, and asked him to give up the draft, which he refused to do. The plaintiff in the course of his business was in the habit of running a small steam- engine about three fourths of the time during four months of the year, but he did not run the engine between January 1 and April 1, 1867 ; and had no objection to make to the policy exce[)t to this condition in refei-ence to running a steam-engine." It appeared by the pleadings that on April 1, 1867, the policy was forfeited by the neglect of the plaintiff to pay further premiums. Upon this evidence the judge ruled that the plaintiff could not maintain his action, and directed a verdict for the defendant, which was returned ; and the plaintiff alleged exceptions. J, Brown, ( 0. A. Reed with him,) for the plaintiff. W. H. Fox, for the defendant. Colt, J. The evidence fails to support the allegation of fraud on the part of the defendant in obtaining from the plaintiff the payment of the first premium upon the policy of insurance issued by the company for which he was agent. The defendant, in con- sideration of the acceptance of a draft drawn on the plaintiff for the premium, agreed as agent to obtain a policy on the plaintiff's life in the Mutual Life Insurance Company of New York. It does not appear that any agreement or representation was made in re- gard to the particular form or conditions of the policy. The usual application was made in writing, and signed by the plaintiff; and the undertaking of the defendant was pei'formed by obtaining a policy in the usual form and with the usual conditions therein for the amount named, and delivering the same to the plaintiff. There was no misrepresentation or concealment on his part. If there was a failure to comply with the provisions of Gen. Sts. c. 58, such failure did not affect the value of the policy issued to the plaintiff. The default of the defendant in this respect, and his neglect to no- tify the plaintiff of it, if he was under any obligation to do so, were manifestly with no fraudulent design towards the plaintiff. By the provisions of the statute, no premium or assessment made on any contract of insurance with a citizen of the state shall be recovered by a foreign insurance company which has not com- plied with the requirements relating to the appointment of agents and returns to the proper department. The contract of insurance is, however, declared to be valid ; and the statute in none of its provisions contemplates or authorizes the recovery back from the agent of a premium actually paid for a valid policy. 284 SUPREME COURT OP MASSACHUSETTS. Pitt V. Berkshire Life Insurance Company. Nor has there been such a failure of consideration in this case as would entitle the plaintiff to recover. The policy delivered was a valid policy, and continued so, as* long as the plaintiff observed the conditions thereof; so that his life was or might have been in- sured thereby from the first of January to the first of April fol- lowing, when it was forfeited by non-payment of premium then due. Taylor v. Lowell, 3 Mass. 342. The fact that the defendant exceeded his authority from the company, in receiving and negotiating the draft, or receiving a premium without giving a receipt therefor signed by the president, is a matter to which the plaintiff cannot object, so long as the com- pany recognized and approved his acts by issuing the policy. The case of Mulrey v. Shawmut Insurance Co. 4 Allen, 116, cited by the plaintiff, was the case of a policy issued by a mutual company, incorporated into which was an express stipulation rendering it in- valid in case the cash premium was not actually paid at the office of the company. Here, at most, was only a failure of the defend- ant to comply with the general instructions of the company, which the case shows to have been waived by issuing the policy. Exceptions overruled. Cathaeinb Pitt, administratrix, vs. Berkshire Life Insueance Company. (100 Mass. 500. Supreme Court, November, 1868.) Premium mjie overdue. — A policy conditioned to be void on failure to pay "any notes or other obligations given for premium," purported to be issued in consideration of a certain sum " in hand paid " and of annual premiums for a like amount. Of the said sum only a part was paid in cash, and for the balance a note was givea The note set forth on its face that, if not paid when due, the policy should be void in accordance with the condi- tions of the policy. 3eM, that the policy was forfeited by failure to pay this note when 'due, and that the amount of this note must be deducted from the net value of the policy in determining the premium of temporary insurance under the St. of 1861, c. 186. Instalment due on note. — A policy terminable by failure " to pay when due any notes or other obligations given for premium," is. determined by failure to pa,y an instalment due on a premium note. CoNTEACT, by the administratrix of Charles Pitt, on a policy of insurance on his life in the sum of f 2,000, issued by the defendants and payable to him at the expiration of twenty years, or, in event of his prior death, to his representatives or assigns. The pohcy was dated January 15, 1867, and was stated to be in consideration of $86.40 to the defendants " in hand paid and of the annual pre- NOVEMBER, 1868. 285 Pitt V. Berkshire Life Insurance Company. mium of a like sum to be paid on or before the 15th of January at noon, in every year during the continuance of this policy," " the last to be due and paid January 15, 1886." It was also declared on the face of the policy that the same was issued on this express condition : " In case the said party shall not pay the said annual premium on or before the several days above mentioned for the payment thereof, or shall fail to pay when due any notes or other obligations given for premium, or shall otherwise fail to comply with all or any of the terms of this contract, then, and hi every such case, the company shall not be liable to the payment of any sum on account of this policy, and it shall cease and terminate ; excepting that in case of the non-payment of the stipulated annual premium, after the payment of three full years' premium, if no other condition of the policy shall' have been violated, the party assured shall be entitled to a paid-up policy, of like tenor and con- ditions, for as many twentieths of the sum herein insured, as he has paid annual premiums : provided notice shall be given to the company, and this policy surrendered, within thirty days of such first non-payment of premium ; otherwise the value of the policy at the time of forfeiture will accrue to the parties concerned, in accordance with ' An act to regulate the forfeiture of policies of life insurance,' enacted by the legislature of Massachusetts in April, A. D. 1861." This act, St. 1861, c. 185, is given in the margin.^ ' " Section 1. No policy of insurance on life, hereafter issued by any com- pany chartered by the authority of this commonwealth, shall be forfeited or be- come void by the non-payment of premium thereon, any further than regards the right of the party insured therein to have it continued in force beyond a certain period, to be determined as follows, to wit ; The net value of the policy, when the premium becomes due and is not paid, shall be ascertained, according to the 'combined experience,' or 'actuaries' ' rate of mortality, with interest at four per centum per annum. After deducting from such net value any indebt- edness to the company, or notes held by the company against the insured, which notes, if given for premium, shall then be cancelled, four fifths of what remains shall be considered as a net single premium of temporary insurance, and the term for which it will insure shall be determined according to the age of the party at the time of the lapse of premium, and the assumptions of mortality and interest aforesaid. " Section 2. If the death of the party occur within the term of temporary insurance covered by the value of the policy, as determined in the previous sec- tion, and if no condition of the insurance other than the payment of premium shall have been violated by the insured, the company shall be bound to pay the amount of the policy the same as if there had been no lapse of premium, any- 2S6 SUPREME COURT OF MASSACHUSETxu. Pitt V. Berkshire Life Insurance Company. Pitt did not pay $86.40 in cash upon the issuing of the pohcy, but paid only f 13.40 in cash, and gave two notes for the balance, both dated January 15, 1867; by the first of these he promised to pay the defendants or order $40 on demand with interest ; and by the second he promised to pay the defendants or order $33, three, six, and nine months after date, in equal instalments of $11, with interest, " this sum," as was stated on the face of the note, " being the balance unpaid of the cash premium of policy No. 4776 issued by said- company, due as above, and this note is given with the full knowledge and intent on my part, that if it is not paid when due without grace, said policy shall become absolutely null and void in consequence thereof, and in accordance with the conditions of said policy and this agreement, without further notice." On April 15, 1867, when the first instalment on the second note became due, payment thereof was demanded but not made, and Pitt died May 22, 1867. The net value of the poHcy on April 15, 1867, was $71.76. The defendants contended on these facts, which were agreed, that the policy was forfeited by the failure of Pitt to pay the instal- ment of this note when due, and judgment was given for them in the superior court ; the plaintiff appealed. 0. A. Meed ^ Cr. M. Reed, for the plaintiff. 1. There has been no forfeiture ; the policy contains an admission by the company that the first year's premium has been paid ; the condition in the policy has no reference to the first year's premium, it relates only to future premiums ; and besides, the giving of the notes and the payment of the cash balance was a payment of the first year's premium. Curtis v. Hubbard, 9 Met. 322. Melledge v. Bos- ton Iron Co. 5 Gush. 158, 170. 2. The note was not due be- cause an instalment was due. Saunders v. McCarthy, 8 Allen, 42. Badger v. Titcomb. 15 Pick. 409. Tucker v. Randall, 2 Mass. 283. Want v. Blunt, 12 East, 183. Rudder v. Price, 1 H. Bl. 547. Sheridan v. Phoenix Assurance Co. EL, Bl. & El. 156. Vinton v. King, 4 Allen, 562, does not reach this case ; the mar- ginal note does not accurately state that case, the doctrine was thing in the policy to the contrary notwithstanding ; provided, however, that notice of the claim and proof of the death shall be submitted to the company within ninety days after the decease : and pronded, also, that the company shall have the right to deduct from the amount insured in the policy the amount at at six per cent, per annum of the premiums that had been forborne at the tima of the death." NOVEMBER, 1868. 287 Pitt «. Berkshire Life Insurance Company. stated too broadly diverso intuitu ; and the non-payment of the in- stalment was such a dishonor of the note as to subject it in a third party's hands to any objections or equities existing against it. Brown v. Davies, 3 T. R. 80. EothscMld v. Oorney, 9 Barn. & C. 388. Sargent v. Southgate, 5 Pick. 312. 3. Considering the notes as memoranda of unpaid premium, the St. of 1861, c. 186, appHes, and the policy was vahd at the time of Pitt's decease. His real indebtedness to the company, at the time of his decease, was $11.00, and as the net value of the policy was $71.50, four fifths of the balance was a net single premium of temporary insurance. The policy specially provides, " that the balance of the year's pre- mium, if any, and all premiums for which credit may have been given and interest or other obligations remaining unpaid," shall be taken from the sum of the insurance. SJ. Merwin, for the defendants, was not called upon. Colt, J. The policy of the plaintiff's intestate was issued and accepted upon the express condition that it should cease and ter- minate, in case he should not pay the annual premium on or before the several days mentioned for the payment thereof, or should fail to pay when due any notes or other obligations given for premium. Two notes were given for the balance of the premium required to be paid upon the issuing of the policy, one payable on demand for forty dollars, and the other for thirty-three dollars, payable in three, six, and nine months, in equal instalments with interest, to the said insurance company or order, to which last note was added a state- ment that it was for the balance unpaid of the cash premium on the policy and was given with the full knowledge and intent that, if not paid when due without grace, said policy should become abso- lutely null and void, in accordance with the conditions therein and this agreement. The policy recited, as consideration therefor, the amount of the cash premium in hand paid, and the annual pre- mium of a like sum to be paid in each year during its continuance. The defence rests upon the failure of the plaintiflTs intestate to pay the first instalment due on the note above described, by which, it is alleged, the liability upon the policy ceased, not having been continued in force by the provisions of the policy or of St. 1861, c. 1 86. And we are of opinion that it must prevail. The rights of the plaintiff must be determined by the terms of the contract to which the assured assented, when such terms do not contravene the principles of, law or public policy. Here they are perfectly plain and intelligible, and no resort is necessary to the known rules 288 SUPREME COURT OF MASSACHUSETTS. Pitt V. Berkshire Life Insurance Company. of interpretation to ascertain their meaning. The stipulations in regard to the payment of premium are of the substance of the con- tract, and were made upon adequate consideration. It is urged that the policy acknowledges the payment of the first year's pre- mium ; that the condition refers only to future premiums, and that the notes in question are, by the decisions of this court, to be re- garded as payment of the balance of the cash premium. But the terms include all notes or obligations given for premium. The note and policy are to be construed together, and the note declares that it is embraced within the conditions of the policy in reference to forfeiture. The acknowledgment of payment in the policy is always open to explanation by proof of the actual facts. The decisions of this court, which declare that the giving of a negotiable promissory note is evidence of payment of a preexisting debt, allow it always to be shown, to defeat the inference, that such was not the inten- tion of the parties. It only in effect changes the burden of proof in such cases. And here the papers abundantly show that it was not the intention that the notes given should be considered pay- ment of the premium unless paid when due. Curtis v. Hubhard, 9 Met. 322, 328. It is further argued that the note in question is a single, entire contract, and was not due, although the first instal- ment was not paid as provided. In Vinton v. King, 4 Allen, 562, it is held that a note payable by instalments is overdue when the first instalment is overdue and unpaid so as to affect a subsequent liolder with the equities between the original parties. In one sense it is not overdue as to the remaining instalments ; but whether, strictly speaking, it is an overdue note or not, it is clearly within the conditions of the policy to be regarded as an overdue obligation given for premium to the extent of the first payment due on the note. Badger v. Titcomh, 15 Pick. 409, 413. By St. 1861, c. 186, the entire forfeiture of life policies for non- payment of premium is provided against, and this policy is expressly made with reference to those provisions. The net value of the policy on the day when the instalment became due is agreed to have been $71.76, an amount which is less than the indebtedness of the assured upon the two premium notes on that day, so that there was nothing to be applied as a single premium of temporary insurance upon his life. Judgment for the defendants. See Robert v. New England Life Insurance Company, post, 634 ; also Provi- dent Life Ins. Co. v. Fennell, ante, 99, holding that acknowledgment of re- ceipt of premium in the policy cannot be controverted. Sed quaire. See Baker V. Union Life Ins. Co. 595. DECEMBER, 1868. 28S Sawyer v. United States Casualty Company. George W. Sawyer vs. United States Casualty Company. (8 Law Keg. (N. S.) 233. Superior Court ofWorcester, December, 1868.) Accident policy. Total disability. — The words " totally disabled from the prosecution of his usual employment," in an accident policj', mean inability to do substantially all kinds of his accustomed labor, to some extent. To recover in such case, the assured must be deprived of the power to do to any extent substantially all the kinds of labor which con- stitute his usual eraplo3Tnent3. For such time he can recover, and no longer. This was an action upon a policy of insurance against injury by accident, containing the following clause : " If the said assured shall sustain any personal injury which shall not be fatal, but which shall absolutely and totally disable him from the prosecution of his usual employment, then, on satisfactory proof of such injury, compensa- tion shall be paid him at the rate of ten dollars per week so long as he shall be totally disabled as aforesaid in consequence of such injury ; provided, however, that, for any single accident, such com- pensation shall not be extended over a period exceeding twenty-six weeks." The plaintiff claimed compensation for the full period, and the defendants denied his right to recover at all. The plaintiff, who was a farmer, was in his barn unloading his wagon of corn in the stalk, and hanging the corn upon the beams. He was standing about fourteen feet from the floor upon a plank, which rested on the rounds of two ladders leaning against the hay piled in bays on each side of the barn floor. While reaching up to arrange the com, one of the ladders slipped on the hay, and the plaintiff' fell to the barn floor, striking his back against the corner of the wagon. For some days he suffered great pain, being con- fined to his bed for three days and to the house for about a week, and was unable to do any work for about a month, though he could ride without inconvenience in an easy carriage. He then and con- stantly afterwards tried to do what he could of the farm work. He could milk a little and do some light work in the barn, but could not at any time that winter carry a pail of milk into the house ; nor water nor take care of his cattle. He testified against the objection of the defendants, that after the twenty-six week.« had expired on March 6, 1868, he was unable to hold the plough or to mow for more than half an hour, and could not pitch hay, though he could rake a little. He could however drive a horse, and do slowly and with difficulty light work which did not require 19 290 SUPERIOR COURT OF WORCESTER. Sawyer v. United States Casualty Company. lifting. From the time of his accident until the beginning of March, 1868, he kept an extra man, chiefly to do work about the house and barn which he testified he previously did himself and would otherwise have done himself. In the latter part of November he, on one occasion, in the absence of his hired man, helped his boy to load a small horse wagon with light boards, but was obliged to sit down to rest once or twice during the loading, and to take nearly three hours in doing one hour's work. During January, he two or three times sat for an hour or two on a horse sled and drove a pair of horses breaking out roads, but all the work he did caused him pain, and, though before his accident he was accustomed to work hard and all day long with his men, he could not, for a period considerably longer than twenty-six weeks after the injury, do half a day's work at any time. Edwin H. Abbott, for plaintiff, cited Sooper v. The Accidental Death Insurance Qompany, 5 Hurl. & Norm. 545, and asked the court to rule that if the plaintiff was wholly disabled from prose- cuting his usual employment, as he usually prosecuted it, and was wholly incapable of doing what he usually did before he was hurt, then he was absolutely and totally disabled, within the meaning of this policy, from the prosecution of his usual employment, and was entitled to recover compensation for the period during which he continued to be so disabled ; and that whether or not the plaintiff could do some small portion of his usual work, was immaterial and did not affect his right to compensation for the time during which he was wholly incapable of doing his ordinary and usual work as he usually did it. Thomas H. Russell, for defendant, asked the court to instruct the jury that if the plaintiff was able to go about his farm ; to ride ; to superintend the work ; to buy and sell ; to drive a pair of horses in team breaking out roads in snow ; and was able to transact gen- erally the business of his farm or mill, (if those were his usual em- ployments,) then he was not totally and absolutely disabled within the meaning of the policy. Reed, J., declined to give either instruction in the terms prayed for, and charged the jury that, if the plaintiff has met with such an accident as is described in the policy, he is entitled to recover, at the rate agreed on in the poUcy, for such time as by reason of such accident he is rendered wholly unable to do his accustomed labor ; that is,, to do substantially all kinds of his accustomed labor to some DECEMBER, 1868. 291 Sawyer v. United States Casualty Company. extent. When you find on an examination of the evidence that the plaintiff was able to do substantially all kinds of his accustomed work, though with less facility and to a less extent than before his injury, then his right to recover ceases. The mere fact that a man cannot do a whole day's work, or that by a day's work he cannot accomplish so much as before the accident, is not sufficient to en- title him to recover ; but he must satisfy you that for a time, by reason of his accident, he is deprived of the power to do to any extent substantially all the kinds of labor which constitute his usual employments. For such time he can recover, and no longer. For instance, if a farmer accustomed to perform all the kinds of labor usually done by farmers should meet with such an accident, and the result should be that he was left able only to milk his cows, but unable to do the other usual farm work ; while that state of things continued he would be entitled to recover. So in case of a merchant ; if his accident confined him to his house, although he might thus be able to make out his bills or post his books, yet if he were unable to do the other work ordinarily done by merchants of his class, and such work as he was accustomed before to do, for such time he would be entitled to recover. The phrase substantially all kinds of labor has been used in these instructions. By that such a case as this is intended to be covered : If you find that at a certain time the plaintiff was able to do all such work to some extent as he ordinarily was accustomed to do, then his right to recover ceases, although you may find he was still un- able to perform some kinds of extraordinary labor which before the accident he sometimes did. Thus, suppose a man occasionally did such a piece of work as digging a well or laying a stone wall, this not being his usual busi- ness ; when you find that he could to some extent do all the usual work to which he was accustomed, his right to recover ceases, although you may find him unable to dig a well or lay a wall. The jury found for the plaintiif ; and no appeal has been taken. Note. — Hooper v. Accidental Death Ins. Co. 5 H. & N. 545, (I860,) referred to by counsel, was an action upon a policy which contained a proviso that in case the accident " shall cause any bodily injtiry of so serious a nature as wholly to disable him from following his usual business, occupation, or pursuits," the company were liable to pay a certain sum during the continuance of the disa- bility. The insured, who was solicitor and registrar of a county court, sprained his 292 SUPREME COURT OF MASSACHUSETTS. Faunoe v. State Mutual Life Assurance Company. ankle severely, and was confined to his bed-room for some weeks, being unable to get down stairs. He was prevented from passing his accounts as registrar, and from attending at various places at wlaich he was required to complete pur- chases for his clients. Held, that inasmuch as the insured was so disabled as to be incapable of following his usual occupation, business, or pursuits, he was " wholly disabled from following his usual occupation, business, or pursuits," within the meaning of the policy. Rebecca W. Faunce vs. State Mutual Life Assurance Company. (101 Mass. 279. Supreme Court, March, ]869.) Parol evidence. Consummation of contract. — In defence against an action on a policy of insurance expressed to have been " executed and delivered," but in fact never delivered, parol evidence is admissible that it was agreed between the parties to the instrument that it should issue only as a substitute for a previous policy to be surrendered, which never was surrendered, but enforced and paid. Conteact on a policy of insurance upon the life of the plaintiff's husband, Stephen Faunce, who died December 23, 1866 ; ex- pressed to have been " executed and delivered " by the defendants September 1, 1866, "for the use of" the plaintiff. Trial, without a jury, before Colt, J., who, after admitting certain parol evidence against the objection of the plaintiff, gave judgment for the defend- ants, and reported the case for the revision of the full court. The substance of the report is stated in the opinion. M. Gr. Sutching, for the plaintiff. £. F. Thomas, for the defendants, was not called upon. Hoar, J. This case is very simple. It is an action on a policy of life insurance. The plaintiff has no such policy. She under- took to show that the defendants agreed to issue such a policy, and that the terms on which it was to be issued were fully complied with ; that the policy was written and executed, and thereby be- came a valid contract ; and therefore, though the paper was not delivered, and remained in the hands of the defendants or their agents, that it is her property, and will support her action. To meet this case, the defendants proved by parol that it was agreed between the parties that the policy should issue, not in addition to, but as a substitute for, a policy previously made, which was to be surrendered; that the earlier policy was not surrendered ; but has been enforced and paid. This is a perfect defence to the action. The plaintiff contends that the application and policy to MARCH, 1869. 293 McAllister i). New England Mutual Life Insurance Company. gether constitute the contract ; and that it is not competent to show by parol any variance from the terms of the contraict contained in the writing. But this doctrine has no application to the case. The writing remained under the control of the defendants. There was no delivery of it, as a complete and perfected agreement. And if it were true that, without delivery, a complete execution of all the terms agreed on to constitute the contract would be sufficient to make it binding, it is first to be determined whether all these terms were complied with. This may be shown by parol testimony, because the evidence is not to vary the contract, but to prove whether any contract was made. No written contract passed from one party to the other ; and the point in controversy is, whether the parties agreed that a certain paper, without more, should be the contract. This must, of course, be proved by parol. The defendants voted to issue the policy ; but they did so upon the agreement that the former policy was to be surrendered. This condition was not embraced in their vote, but it was understood and agreed to by both parties, and the policy retained until the condition should be performed. No vote or assent of the defend- ants to the contract was communicated to the other party, except with this condition. The plaintiff has not a delivered instrument, the evidence of a complete agreement, not to be qualified or varied in its legal effect by parol testimony ; and it does not appear that the parties have ever agreed that the written paper should become a contract, ex- cept upon a condition which has not been performed. Exceptions overruled. As to when the contract is consummated, see Sheldon v. Conn. Mut. Life Ins. Co. ante, 27, and cases cited. Margaret McAllister, administratrix, vs. New England Mutual Life Insurance Company. (101 Mass. 558. Supreme Court, March, 1869.) Payment of premium note. — A policy of life insurance, expressed to be made in considera- tion of a premium already paid and of future annual payments; providing that, in case any premium due on the policy should not be paid when due, the policy should be for- feited; declaring that the policy, and any sums that should become due thereon from the insurers, were pledged to them, to secure the payment of any premium on which credit should have been given, or any note or security therefor, such pledge in no respect to affect the provisions respecting forfeiture ; and further declaring that the policy should 294 SUPREME COURT OF MASSACHUSETTS. McAllister v. New England Mutual Life Insurance Company. not take effect until the premium was paid; such a policy was made and delivered to the assured by the insurers, who took from him for the first premium a certain sum in cash, and his two promissory notes, one payable in six months, the other in five years. This latter note contained a provision that the policy should be subject to forfeiture in case of non-payment of interest and principal of this note, in compliance with the terms thereof. When the first note, which contained no such provision, became due, it was not paid. Held, that the policy had taken effect; that the clause as to forfeiture for non-payment of premiums referred to premiums subsequent to the first ; and the policy was not avoided by failure to pay the note. Abandonment — The holder of a policy of life insurance refused to pay a premium note when due, and declared that " he would not have anything more to do with the insurers and abandoned the whole thing;" but he retained the policy, and the insurers retained the note ; nor did it appear that they assented to the abandonment. Beld, that the policy remained in force. CoNTEACT by the administratrix of the estate of Samuel McAl- lister, deceased, on a policy of insurance upon his life, for $5,000, issued to him by the defendants ; on an agreed statement of facts of which the material part was as follows : The defendants made and delivered to Samuel McAllister the policy sued on, which was dated April 11, 1866, was numbered 21,104, and purported to be made " in consideration of the pre- mium of fl20.50 to said company paid by Samuel McAllister, being the assured in this policy, and of a like sum to be paid to them by said assured on or before the 11th day of April in every year during the continuance of this policy." The policy provided : " In case any premium due upon this policy shall not be paid at the day when payable, the policy shall thereupon become forfeited and void," except that it should continue as a policy for the tem- porary insurance during a limited period of a certain amount cal- culated on the premium already paid ; " this policy and any sums that shall become due thereon from said company are pledged and hypothecated to said company, and they have a lien thereon to secure the payment of any premium on which credit may be given, and of any note or security therefor,-but this pledge and hypothe- cation shall in no respect affect the provisions respecting the for- feiture of this policy ; this policy does not take effect until the premium is paid." Samuel McAllister died March 7, 1867 ; notice and proof of his death were duly given to the defendants ; and the plaintiff was appointed administratrix of his estate. If it was competent and material, which the plaintiff denied, it was agreed that, when the defendants delivered the policy to the assured, they took for the first annual premium the sum of 130.12 in cash, and two promissory notes. By the first note, which was MARCH, 1869. 295 McAllister v. New England Mutual Life Insurance Company. dated April 16, 1866, the assured, for value received, promised to pay to the defendants or order $30.13, " in six months, with in- terest, being in part of premium on policy 21,104 " of the defend- ants. By the second note, which was dated April 11, 1866, the assured, for value received, promised to pay to the defendants or order $60.25 and interest ; " the interest to be paid annually, and the whole or any part of the principal to be paid within ninety days from a demand thereof in writing, after the expiration of five years from this date, the said amount being for part of premium on pol- icy No. 21,104 of said company, on the life of" the assured, " which policy, and all amounts payable thereon, for returns of premiums and distribution, or loss, are hereby pledged and hypoth- ecated to said company for the payment of this note ; said policy being agreed to be subject to forfeiture, and to become void, in case of non-payment of interest and principal of this note, in com- pliance with the terms thereof." Neither of these notes were paid by the assured. Under the provisions of the policy and of the St. of 1861, c. 186, the cash payment was sufficient to continue the policy in force for temporary insurance up to November 6, 1866, and no longer. If, on the above facts, the plaintiff could not recover, then judg- ment was to be entered for the defendants ; but if on said facts the plaintiff was entitled to recover, then judgment was to be entered for her for the amount of the policy and interest, unless it was competent and material for the defendants to prove the following facts, and unless said facts would, if true, constitute a defence to the action, namely, " that, when the note on six months became due, the insurance agent, through whom the policy was effected, called upon the assured and asked him to pay it ; that the assured then said, ' he did not know whether he would pay the note or not ; ' that the agent called a second time about a week afterwards, and the assured then said ' he had no money ; ' that the agent called a third time, four or five days later, when the assured said ' he should not pay the note,' and spoke of" a policy to one Camp- bell which the defendants had refused to pay, " and added that ' he supposed they would not pay on his, and that he would not pay the note, would not have anything more to do with the company, and abandoned the whole thing.' " The defendants retained the notes, and the assured the poHcy. If the court should be of opinion that proof of said facts would be a defence to the action, then the 296 SUPREME COURT OF MASSACHUSETTS. McAllister v. New England Mutual Life Insurance Company. case was to be sent to a jury for the determination of this question only. -2. C. SutcMns, for the plaintiff. D. Foster ^ Gr. W. Baldwin, for the defendants. Geay, J. The policy upon which this action is brought is ex- pressed to be made in consideration of a premium already paid, and of a like sum to be paid annually during. its continuance ; and " does not take effect until the premium is paid." But it is agreed by the parties, in the case stated, that the defendants made and delivered the policy to the assured, and at the time of the delivery took for the first premium a certain sum in cash, and two notes of the assured, one payable in six months, and the other on demand after five years. Whatever were the powers of the directors, the corporation itself might certainly take notes for part of the pre- mium, instead of insisting on immediate payment of the whole. Hodsdon v. Guardian Insurance Co. 97 Mass. 144.^ The policy thus took effect as a binding contract, and the question is, whether it was terminated before the death of the assured. The defendants rely upon that provision of the policy which de- clares that, " in case any premium due upon the policy shall not be paid at the day when psiyable, the policy shall thereupon be- come forfeited and void," except for a certain period which had expired before the death of the assured in this case. But the court is of opinion that this clause, which is inserted for the benefit of the insurers, and to be construed most strongly against them, and which merely provides that the policy " shall become forfeited and void," in case a premium " shall not be paid at the day when payable," can only apply to a policy which has once taken effect, and to non-payment of a premium payable after that time, and can- not be held to refer to that premium which the policy contemplates and requires to be paid before the contract of insurance has any binding force. This policy does not provide that it shall be avoided or forfeited upon the failure to pay any note or obligation given for a premium, and differs in that respect from the cases of Pitt v. Berkshire Insur- ance Co. 100 Mass. 500,2 ^^^ Robert v. New England Insurance Co. Disney, 355,^ cited for the defendants. The subsequent stipulation, by which the policy, and any sums that shall become due thereon from the company, are pledged and 1 ^nte, 218. 2 Ante, 284. 3 Post, 634. MARCH, 1869. 297 Stevens ». Warren. hypothecated to them to secure the payment of any premium on 'which credit may be given, and of any note or security therefor, expressly declares that " this pledge and hypothecation shall in no respect affect the provisions respecting the forfeiture of the policy," and cannot therefore enlarge those provisions. The diiference also in the form of the two notes taken by the defendants for part of the premium — that for the smallest amount and payable in the shortest time omitting the provision, which is carefully inserted in tiie other, of " said policy being agreed to be subject to forfeiture and to become void in case of non-payment of interest and principal of this note in compliance with the terms thereof" — accords with the construction that non-payment of the first note was not intended to have the effect of avoiding the policy. The refusal of the assured to pay that note after it had become due, accompanied by the statement that " he would not have any- thing more to do with the company, and abandoned the whole thing," does not appear to have been assented to by the company ; for the company continued to hold 'the notes, and the assured to hold the policy. The defendants, having admitted the death of the assured and due notice and proof thereof, and having failed to show that the policy was forfeited, cancelled, or in any way avoided or del^r- mined before his death, are liable to his administratrix in this action. Judgment for the plaintiff . Note. — A policy contained the following clause : " The insurance in this ap- plication is to take efi'ect when approved by ... . the general agent." Held, that the contract was binding until a return of the premium note and a can- cellation of the policy. JEtna Ins. Co. v. Webster, 6 Wall. 129. See Woodjin v. Ashville Mut. Ins. Co. post, 626 ; Bnuton v. Amer. Mut. Life Ins. Co. ante, 51. William Stevens, administrator, vs. Saeah A. Warren, administratrix, & another. (101 Mass. 564. Supreme Court, March, 1869.) Aiiignment. — An assignment, without the assent of the insurers, to one who has no interest in the life of the assured, of a policy of insurance upon the life of the assignor, which pro- vides that any assignment thereof without the assent of the insurers shall be void, passes no interest, legal or equitable. Bill in equity filed by the administrator of George L. D. Barton, against the administratrix of Dewey K. Warren, and the 298 SUPREME COURT OF MASSACHUSETTS. • Stevens v. Warren. next of kin of said Barton, alleging that the plaintiff had in his hands the proceeds of a policy of insurance issued to his intestate on his life ; that the defendant Warren claimed them by virtue of an assignment of the policy made to her intestate by Barton ; and that the next of kin of Barton claimed them as assets of his estate ; and praying that the defendants might interplead. The case is stated in the opinion of the court. S. W. Paine ^ B. T). Smith, for Warren's administratrix. G. W. Baldwin, for the next of kin of Barton. Wells, J. The plaintiff, as administrator of Barton, holds the proceeds of a policy of insurance upon the life of his intestate. The fund is assets in his hands for the benefit of one of the de- fendants as next of kin, after payment of debts, unless the other defendant is entitled to receive it by virtue of an assignment of the policy in the lifetime of the assured. It is not properly a case for interpleader. But the plaintiff sus- tains a tvirofold relation to the fund. If the claim of the defendant Warren can be maintained, either at law or in equity, it is not like an ordinary demand against the estate which will be barred at the end of two years, if not sooner prosecuted. It would be against the plaintiff personally, and not as administrator. He is not only liable to be harassed by conflicting claims ; but exposed to the risk of being required to settle his accounts, and distribute or pay over the fund as administrator, before his liability to the other claimant is brought to a determination at law. The settlement of the es- tate is liable to be delayed by reason of a dispute affecting a con- siderable portion of the supposed assets. In such case the admin- istrator may properly ask the direction and protection of the court. Bimmock v. Bixly, 20 Pick. 368. Treadwell v. Cordis, 5 Gray, 341. The only question to be determined in regard to the rights of the parties is, whether an assignment of the policy, by the assured in his lifetime, without the assent of the insurance company, conveyed any right, in law or in equity, to the proceeds when due. The court are all of opinion that it did not. In the first place, it is contrary to the express terms of the pol- icy itself, by which it is provided and declared that any such as- signment shall be void. In the second place, it is contrary to the general policy of the law respecting insurance ; in that it may lead to gambling or spec- ulating contracts upon the chances of human life. MARCH, 1869. 299 Stevens v. Warren. The general rule, recognized by the courts, has been, that no one can have an insurance upon the life of another, unless he has an interest in the continuance of that life. Loomis v. Eagle In- surance Co. 6 Gray, 396.^ Lord v. Ball, 12 Mass. 115.^ Dewey K. Warren had no such interest, and could not legally have pro- .cured insurance upon the life of Barton. We understand the an- swer to deny that the policy was held by Warren as creditor and for his security ; and to assert an absolute right by purchase. The rule of law against gambling policies would be completely evaded, if the court were to give to such transfers the effect of equitable assignments, to be sustained and enforced against the representa- tives of the assured. When the contract between the assured and the insurer is " ex- pressed to be for the benefit of" another, or is made payable to another than the representatives of the assured, it may be sus- tained accordingly. Gen. Sts. c. 58, § 62. Oampbell v. New England Insurance Co. 98 Mass. 381.^ The same would probably be held in case of an assignment with the assent of the insurers. But if the assignee has no interest in the life of the subject of in- surance which would sustain a policy to himself, the assignment would take effect only as a designation, by mutual agreement of the contracting parties, of the person who should be entitled to re- ceive the proceeds, when due, instead of the personal representa- tives of the assured. And if it should appear that the arrange- ment was a cover for a speculating risk, contravening the general policy of the law, it would not be sustained. The purpose of the clause in the policy, forbidding assignments without the assent of the company, is undoubtedly to guard against the increased risks of speculating insurance. The insurers are en- titled to the full benefit of such a provision, as a matter of con- tract ; and, as the policy of the law accords with its purpose, the court will not regard with favor any rights sought to be acquired in contravention of the provision. The administrator will therefore hold the proceeds of the policy as assets of the estate of his intestate, discharged of any claim thereto under the assignment of the policy to Dewey K. Warren. Decree accordingly. Note. — Had the office assented to the assignment there can be no doubt that it would have been valid, -without reference to the question of interest in the assignee. See St. John v. American Mutual Life Ins. Co. post, 359, 372. 1 Ante, 175. « Ante, 154. 3 Ante, 229. MISSOURI. Harper's Administrator, plaintiff in error, vs. The Phcenix Insurance Company, defendant in error. (18 Mo. 109. Supreme Court, March, 1853.) Death in known violation of law. — In an action upon a life insurance policy conditioned to be void if the assured die in the known violation of law. Held, that to have that effect the death must have been under circumstances which would have made the slayer ex- cusable. Killing in self-defence. — What constitutes a killing in self-defence is matter of law. The case is stated in the opinion of the court. Crlover ^ Richardson and S, M. Breckenridge, for plaintiff in error. The question is, did Harper die in the actual violation of law ? The evidence shows that he did not. But if Coryell's guilt or in- nocence is in question, the evidence shows that he was guilty of felonious homicide. Roscoe's Crim. Ev. Phil. ed. 1840, side pages, 640, 670^ [7th Lond. ed. 743.J 1 East, P. C. 239. 1 Hale, P. 0. 457. R. C. 1845, p. 344. 6 Mo. 241. E. ^ B. Bates and T. B. Hudson, for defendant in error. 1. The evidence supports the finding of the court below, and the finding the judgment. This court will not therefore reverse. G-ivin V. Oody, 15 Mo. 277, 278. Mne v. Bogers, Ibid. 320. 2. The policy is avoided if Harper's death was the direct conse- quence of his having violated the law, in assaulting Coryell, what- ever may have been the latter's guilt. Scott, J. This was an action on a life policy. One of the con- ditions of the policy was, that should Harper die in the known vio- lation of a law of this state, then it should be void. The case was submitted to the court without a jury, and after hearing a great deal of evidence in relation to the manner by which Harper came to his death, who was killed in a fight begun on the street, and which was afterward continued in a store-house, where Harper was shot with a bullet from a pistol, the court found the facts to be : " That Harper, by opprobrious and insulting language, provoked a MARCH, 1854. 301 Harper «. Phoenix Insurance Company. verbal altercation with Coryell, and that during said altercation, said Harper drew a pistol and attempted to shoot said Coryell ; that therefore, Coryell, in self-defence, shot said Harper, whereby said Harper died, in the known violation of a law of this state." 1. The evidence preserved in the record shows that the finding of the court is defective in not stating the circumstances immedi- ately preceding the death of Harper. If he was slain under a state of facts that would make his death manslaughter, we are not pre- pared to say that the policy would thereby be avoided. To have that effect his death must have been under circumstances that would make the slayer excusable. 2. The court finds that the killing was in self-defence. That may be so ; but what constitutes a killing in self-defence is a question of law. The case found is clearly one of self-defence. But there are circumstances detailed by the witnesses which raise a question, whether the killing was in self-defence or criminal. These circumstances should be found and stated with precision, in order to determine that question. This omission in the finding renders it impossible for this court to declare whether the policy was avoided by a breach of the condition. Rtland, J., concurring. The judgment will he reversed, and the cause remanded. Gamble, J., not sitting. See the following case and note suh fin. Hakper's Administratoe, plaintiff in error, vs. The Phcenix Insurance Company, defendant in error. (19 Mo. 506. Supreme Court, March, 1854.) Death in hmwn violation of law. — In an action upon a life insurance policy conditioned to be void if the assured " shall die in consequence of a duel, or by the hands of justice, or in the hnoiim violation of any law of this state," Held, that upon the maxim noscitur a so- ciis, the last clause of the condition must be construed to extend only to instances in which the party died in the consummation of a felony; and that the fact that the assured, at the time of the killing, had abandoned the conflict, retreated as far as possible, and endeavored to screen himself, though holding a stick at the time he was slain, precluded the idea of a felony on the part of the assured. The case is stated in the opinion of the court. S. M. Breckenridge, QGrlover ^ Richardson with him,) for plain- tiffin error. 302 SUPREME COURT OF MISSOURI. Harper e. Phoenix Insurance Company. Barton Bates ^ T. B. ffudson, for defendant in error. Scott, J. Edmund Harper, on the 17th of December, 1849, took from the Phoenix Insurance Company a policy of insurance on his life, for the term of five years, for three thousand dollars. The policy was subject to the following conditions : " That if the said Harper shall die in consequence of a duel, or by the hands of jus- tice, or in the known violation of any law of this state, then, in such case, the policy shall be void." This is an action on the policy by the plaintiff, Woodyard, who is the administrator of Harper. ' ' The answer sets up the defence that Harper died in the known violation of a law of this state, in committing an assault upon one Coryell, whereby the policy was avoided ; that Harper, just before his death, assaulted Coryell with a pistol, and attempted to shoot him, who, in resisting said attempt, and in defence of his life, shot and immediately killed Harper. The trial of the cause was submitted to the court without a jury, and the facts were agreed as follows : " On the 6th day of Febru- ary, 1850, and in the year within the time for which the life of said Edmund Harper was insured, one Coryell was talking to a man named Wilson, standing about forty paces from B. Harper's store, where the said Edmund Harper, the deceased, then was. The deceased spoke to the said Wilson and asked him if he knew to whom he was speaking, and admonished him to keep his hand on his pocket. Coryell then approached the deceased, and in- quired if that insult was intended for him. The deceased replied that it was. The parties quarrelled ; the deceased drew a pistol with a single barrel and snapped it at Coryell, who thereupon drew a revolver and advanced upon the deceased, standing on the sill of B. Harper's store door, who threw his pistol, which had missed fire, and struck Coryell. The deceased then stepped into the store of B. Harper, and said Coryell standing in the door of said store, with his revolver, shot at and missed said deceased, who was inside the store, and eight or ten feet from the door. The deceased then re- treated precipitately behind an offset formed by a stairway, six or eight feet, and picked up a stick of wood, and raised it in a threat- ening position over, his head, but did not advance upon said Coryell, nor attempt to use said stick in any other manner. Coryell then fired again with his revolver, and shot the deceased through his body, of which he died in a few minutes. The whole difficulty was one continuous quarrel." MARCH, 1854. 303 Harper i>. Phoenix Insurance Company, Upon these facts the court found for the defendant, whereupon the plaintiff sued out this suit of error. 1. In the construction of the contract which has given rise to this controversy, we are not authorized to be influenced by any considerations affecting the preservation of the peace and order of society, or of the morals of the party insured. Whilst the law will not countenance contracts against its policy, it does not look for a support to itself in the stipulations of men. In life policies the in- surer has a guaranty against increasing the risk insured, by that love of life which nature has implanted in every creature. In such policies, unless it is otherwise stipulated, the insurer takes the sub- ject insured with his flesh, blood, and passions. The dangers to which the lives of men are exposed from sudden ebullitions of feel- ing are a lawful matter of insurance. ^ When this cause was formerly here, the idea intended to be conveyed in the opinion given was that a person could not be said to have died in the known violation of a law of this state, when a crime attached to the individual by whom he was slain. It was not supposed that therefore it followed, that in all cases, when the killing was without crime, that the person slain died in the known violation of the law. We see no reason to change the opinion then hazarded. Although conditions in policies, similar to that now under consideration, are not unusual, we have not been enabled to find any case in which its interpretation has come up for adjudica- tion. We must then, as in all other cases involving the construc- tion of contracts, look to the intent of the parties, as gathered from the instrument embodying their minds. It is obvious that, in giving the words of the condition a literal meaning, cases will be embraced which no one will maintain were in the contemplation of the parties. If the person whose life is insured uses offensive lan- guage to one whilst they are engaged in an unlawful game of chance, which language is concerning the game, and he is shot down for the provocation, it would not be maintained that he died in the known violation of a law of the land, within the meaning of the contract. So, if he is riding a race in a pubhc highway, which is forbidden, and his horse falls, and he is thrown, and his neck broken, he does not die in the known violation of a law of the land, within the meaning of the terms of the condition. So, also, in a quarrel, if he assails another with his open hand^ and is thereupon instantly shot down, he does not die in the known violation of a 304 SUPREME COURT OF MISSOURI. Harper v. Phcenix Insurance Company. law, within the intent of the policy. Many similar instances might be put, which, it is clear, were not within the meaning of the par- ties, and if they were, the contract would be much narrowed in its operation. If, then, the literal sense of the words of the policy leads to conclusions which are inadmissible, we are necessarily driven to some other mode, in order to ascertain the meaning of the parties. In the interpretation of contracts of insurance, the maxim noscitur a sociis obtains. When a clause stands with others, its sense may be gathered from those which immediately precede and follow it. The clause in the policy which immediately goes before that under consideration, is, " if the party shall die by the liands of justice." Now do not these words clearly indicate the idea in the minds of the parties at the time ? Do they not show that it was a justifiable killing ? There are other modes of killing justifiable, than by the hands of justice. Dying by the hands of justice means dying by the execution of the sentence of the law. The fourth section of the second article of the act concerning crimes and punishments enumerates many instances of justifiable homicide. These are, in resisting any attempt to murder, or to commrt any felony on. the person or in a dwelling-house ; in a lawful defence of a person, when there is reasonable cause to apprehend a design to commit a felony ; when necessarily committed, in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keep- ing or preserving the peace. Here are abundant instances in which the words of the condition can have play, without resorting to a latitude of construction which so extends its sense as to embrace cases which were never in the contemplation of the parties. As there was but one mode of justifiable killing expressed, it was necessary to use general words to include all other modes of such killing, as they were equally within the meaning of the contract. The other clause in the condition is that, if the party shall die in consequence of a duel. If a man falls in a duel, his slayer is guilty of murder. A duel is a deliberate act, and the parties voluntarily, in violation of law, expose themselves to death. The kindred clauses of the condition thus show that a dying in consequence of a felony, then in the very act or course of being committed by the insured, and a dying in consequence of a felony previously com- mitted b}'' him, were in the contemplation of the parties. Now it would seem that, upon the acknowledged rule of construction, nos- MARCH, 1854. 305 Harper v. Phoenix Insurance Company. citur a sociis, that the last clause hi the condition, being left in doubt as to its meaning, should be construed only to extend to in- stances in which the party died in the commission of a felony. It has been shown that a literal interpretation of this clause would embrace cases not within the intention of the parties ; now the words of the condition are the words, not of the assured, but of the insurers, introduced by themselves for the purpose of their own exemption and protection from liability ; both in reason and justice, therefore, no less than upon acknowledged principles of legal con- struction, they are to be taken most strongly against those that speak the words, and most favorably for the other party ; for it is no more than justice, that if the words are ambiguous, he whose meaning they are intended to express, and not the other party, should suffer by the ambiguity. 5 M. & G.^ The facts of this case clearly show that the person slaying Har- per was guilty of a crime. There is no proof of the fact set up as a bar that Coryell slew Harper in self-defence. Harper had aban- doned the conflict, retreated as far as possible, and endeavored to screen himself from the attack of his assailant. His having a stick of wood in his hand at the time he was slain, did not, in the least, extenuate the guilt of Coryell. Under the circumstances Harper would have been justified had he slain Coryell. This is made so by our statute. He would have been excused by the common law. If A, upon a sudden quarrel, assaults B first, and upon B's return- ing the assault, A really and bona fide flees,, and being driven to the wall, turns again upon B and kills him, this is se defendendo. 1 Hale, 480. Foster, 273. By the twelfth section of the second article of the act concerning crimes and punishments, it is enacted that every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree. Now if one dies under circumstances which would justify him in slaying his adversary, and when the person causing his death is, thereby, guilty of a felony, is it not a gross perversion of language to say that the person died in the known violation of a law of the land? ' See note sub Jin. 20 806 SUPREME COURT OF MISSOURI. McKee v. Phcenix Insurance Company. RyLAND, J., concurring. The judgment will be reversed, and a judgment entered here on the facts found. Gamble, J., not sitting. Note. — See Cluff v. Mutual Benefit Life Ins. Co., ante, 208, 265, and cases jited by counsel ; also, Overton v. St. Louis Mutual Life Ins. Co. post, 313. Borradaile v. Hunter, 5 Man. & Gr. 639, (1843,) was an action upon a life policy, conditioned, among oth^ things, to be void if the insured should die by his own hands. He drowned himself during a fit of insanity. The question was, whether the condition of the policy was broken. The court held, Tindal, C. J., dissenting, that the policy was avoided, rejecting the idea that the condition implied any criminality on the part of the insured. The chief justice, on the contrary, was of the opinion that, upon the maxim noscitur a sociis, the criminality of the act must be established, basing his argument on the clauses immediately following the one in question, which were precisely the same as those in the above case. But this was answered by Erskine, J., pointing out other clauses immediately preceding and subsequent, which involved no crim- inality of intention. In The Amicable Society v. Bolland, 4 Bligh, N. S. 194, (1830,) S. C. 2 Dow & Clark, 1, the court held that the commission of a capital felony, ipso facia, avoided the policy, though it contained no condition to that effect, on the ground that it would, if valid, be an insurance, in effect, against the event of the com- mission of a capital felony. See Hartman v. Keystone Ins. Co. post, 649 ; Dean V. American, S;^c. Ins. Co. ante, 195 ; St. Louis Mut. Life Ins. Co. v. Graves, post, 736. McKee, plaintiff in error, vs. The Phcenix Insurance Com- pany, defendant in error. (28 Mo. 383. Supreme Court, March, 1859.) Divorce,. Refusal of pi'emiwm. Recovery. — A insured the life of her husband, and after making several payments, obtained a divorce from him. After several other payments were made the insurers refused to receive a semi-anhual instalment, tendered when due. Hdd, that A had a right thereupon to treat the policy as at an end, and to recover all the money she had paid under it. Demurrer to the following petition : " Plaintiff states that the defendant is indebted to her in the sum of #548 for money had and received to and for the use of said plaintiff, as by the following account will appear : " [Here is given a list of payments of premiums, from May 12, 1849, to November 12, 1855, amounting to $548,] " all of which will also appear by reference to the indorsements on a certain policy of insurance which will be herewith filed. Also in the sum of fl,452 for damages on account of a breach of contract by the said defendant, the particu MAKCH, 1859. 307 McKee v. Phoenix Insurance Company. lars of which are as follows: On the 12th day of May, 1849, plaintiff was the wife of Hiram McKee, by whom she had four children, then and now living. She determined, with her own means, procured by her own labor and economy, to avail herself of the benefits held out by the defendant, and insured the life of her husband. A contract was made with said defendant to that effect on the terms and conditions contained in the policy aforesaid. Afterwards her husband went to California, whereby she was re- quired by said defendant to pay an additional sum of fifty dollars, which she paid, as shown by exhibit B, which will be herewith filed, and which is included in the foregoing account. Afterwards, on account of her husband remaining in California and abandon- ing her, she applied for and obtained a divorce, to wit, in the month of October, 1854, and after said time continued to pay the semi-annual instalments required by said policy, which the defend- ant continued to receive till the 12th of May, 1856, at which time plaintiff offered to pay said instalment then due, being thirty-five dollars and fifty cents, and tendered the same within the time re- quired by said policy, which they refused to receive ; and have thereby in other respects broken their aforesaid contract with the plaintiff. Whereby the plaintiff is entitled to recover said dam- ages so as aforesaid claimed. Plaintiff prays judgment for said sum of f548 and interest, and for said damages of f 1,452." The policy filed with the petition insured in the Phoenix Insur- rance Company, the life of " Hiram McKee, of the city of St. Louis, in the county of St. Louis, State of Missouri, for the sole use of the said Nancy Pettit McKee, in the amount of two thousand dol- lars, for the term of his natural life." The grounds of the demurrer were : 1. By the divorce, plaintiff ceased to' have any insurable interest in the life of her husband. 2. The payments were voluntarily made. Morehead, for plaintiff in error. S. T. ^ A. D. Grlover, for defendant in error. They cited An- gell on Life Ins. [pp.] 296, 323. Scott, J. On what ground did the company claim to hold the premiums paid after the divorce, even admitting that the divorce determines the contract ? Will they pretend to hold them on the ground that they were ignorant of the fact that a divorce had been obtained ? If they were ignorant of the fact, would that entitle 308 SUPREME COURT OF MISSOURI. McKee v. Phoenix Insurance Company. them against all conscience to retain this unfortunate woman's money ? The clause in the contract, that " in every case where this policy shall cease or become null or void, all previous payments made thereon shall be forfeited to the said company," had nothing to do with these payments ; nor do we presume it will have any application when the policy ceases by the wrongful act of the com- pany. If the defendant (the company) wrongfully determined the con- tract by refusing to receive a premium when it was due, then the plaintiff had a right to treat the policy as at an end, and to recover all the money she had paid under it. We will not undertake to say, from the pleadings in the caiise, as they appear to us, that the wife, by suing for and obtaining a di- vorce from her husband, ceased to have such an interest in his life as would render an assurance of it by her illegal. There seems to be a difference of opinion among jurists as to the legality of life insurances, where the party insuring has no interest whatever de- pending on the life of the person insured. Phillips on Ins. p. 131. Angell on Fire and Life Insurance, 307. There is nothing in the contract, as stated in the petition, which shows it to be a wagering one, or in any wise contrary to public policy. We see no danger to the interests of the community in sanctioning this policy. Why should not a mother, who has four children by a man from whom she has been divorced, be permitted to insure the life of that father to whom her children may look for support ? If the care and cus- tody of the children have by the decree of a divorce been in- trusted to the mother, that will not extinguish the obligation of the father to provide for them. It is nevertheless his duty, though di- vorced and the care of the children taken from him, to support them. That natural obligation, by his own act, cannot be impaired or destroyed. There may be a provision decreed the wife for her support to be paid by the husband. This would in effect make her the creditor of her husband, and being so, she would, without controversy, have a right to insure his life. The question of the measure of damages for a breach of the contract to insure the life of the husband, he being still alive, has not been argued, and we express no opinion in relation to it. Cer- tainly the mere return of the premiums with interest would not be the standard in all cases. In many it would be very unjust, espe- MARCH, 1862. 309 Eeicliard v. Manhattan Life Insurance Company. cially after the policy had continued for years, and the period of existence had consequently been shortened. If the person whose hfe is insured, though alive, should be laboring under a disease that must speedily result in his dissolution, the insurer would not be permitted to escape the payment of the amount for which the life was assured, by putting an end to the contract of insurance. Reversed and remanded; Napton, J., concurring. Richard- son, J., not sitting. Note. — The wife has an insurable interest in the life of her husband. See note to Lord v. Doll, ante, 158 ; and if there is an interest at the time the insurance was effected, the fact that it subsequently ceased will not invalidate the policy. Dolby v. India, S^c. Life Ins. Co. 15 Com. Bench, 365. WiLHELMiNE Reichard, respondent, vs. The Manhattan Life Insueance Company, appellant. (31 Mo. 518. Supreme Court, March, 1862.) Agreement not to sue except in the state in which the insurance company is heated, is void, both as against public policy and the St. of Dec. 8, 1855, R. C. p. 884. Death from use of intoxicating drink. — If the insured was, at the time of issuing the pol- icy, and at the time of renewing the same, temperate and in good health, the fact that he died from the excessive use of intoxicating drink is immaterial. The case is stated in the opinion of the court. Knox ^ Kellogg, for appellant. Mart ^ McGribhon, for respondent. The material question was whether the assured was sober and temperate at the time the risk was to take effect, or was revived. The jury found that issue for the plaintiff; and the instructions given covering that point, it was not error to refuse to repeat them. Williams v. Van Meter, 8 Mo. 339. Pond v. Wyman, 15 Mo. 175. Carrol v. Paul, 19 Mo. 102. Surst v. Robinson, 8 Mo. 82. Huntsman v. Rutherford, 13 Mo. 465. G-amache v. Piquinot, 17 Mo. 310. Young v.- White, 18 Mo. 93. The waiver of the right to sue elsewhere except in New York was void. Story on Cont. 545. Chitty on Cont. 674. Bat, J. This was an action to recover the sum of two thou- aand dollars, with interest, insured by defendant upon the lives of Frederick Reichard and Wilhelmine, his wife, for the sole use of the survivor. The policy bears date July 1st, 1856, and required that the premium should be paid annually on or before the 26th of 310 SUPREME COURT OF MISSOURI. Reichard v. Manhattan Life Insurance Company. June in every year, otherwise said policy to cease and terminate. The policy became forfeited by the non-payment of the premium, but was renewed on the 16th of July, 1857. Frederick Reichard died January 27, 1858. It is provided in the policy, and declared to be the true intent and meaning thereof, that if the declaration made by the said Frederick and Wilhelmine, bearing date the 16th and 18th days of June, 1856, shall be found in any respect untrue, then and in such case said policy shall become null and void. In the statement referred to, the insured represented that they were sober and temperate, and in good health. It was also stipulated between the parties that the insured waives all right to bring an action under said policy, except in the courts of the State of New York. The answer of defendant denies the right of plaintiff to sue in the courts of Missouri. It sets up as a further defence, that said Frederick Reichard was not a sober and temperate man when said policy was issued, and when the same was revived, nor was he in good health when said policy was revived. Upon the trial below, defendant's counsel claimed the right to open and conclude, upon the ground that the answer set up affirraativiB matter to defeat the action ; and the refusal of the court to so per- mit him is assigned here as error. There can be no doubt but that the general practice in this country is to permit the party holding the affirmative, and upon whom rests the burden of proof, to open and conclude the argument to the jury, but it is a matter of prac- tice resting in the discretion of the court ; and this court has held, in Wade v. Scott, 7 Mo. 509, and in Tiheau v. Tibeau, 22 Mo. 77, that it will not reverse a judgment upon that ground, unless it is manifest that such refusal has produced a wrong to the party. In this case, we are not advised that the defendant suffered any injury by the ruling of the court in that respect. The next error is that the court refused to instruct the jury thW if they found from the evidence that when application was made for the policy of insurance the applicants waived all right to bring any action for any claim whatever arising under said policy, except in the courts of the State of New York, then the plaintiff cannot recover. We think the court very properly refused this instruction, not only upon the ground that the agreement to waive the right to sue in our courts is void, as against public policy, but because it is in direct contravention of a statute of this state passed for the goveili- MARCH, 1862. 311 Eeichard t). Manhattan Life Insurance Company. ment and regulation of agencies of foreign insurance companies, approved December 8, 1855. The first section of the act requires that every person acting as an agent of an insurance company not incorporated by the laws of this state, shall, before entering upon his duties, perform certain acts, among which is the following : " He shall file with the clerk of the county court of the county in which he proposes to do business, a resolution of the board of directors of such company, duly authenticated by the secretary thereof, under seal of such company, authorizing any person having a claim against such company, growing out of a contract of insur- ance in this state with the agent or agents thereof, doing business in this state, to sue such company for the same in any court of this state having competent jurisdiction; and further authorizing the service of process on said agent or agents, by personal service, or by leaving a copy thereof at his last place of abode, to be binding on said company to abide the issue of said suit, and that such ser- vice shall authorize a judgment in such suit against such company in the manner and with like effect as a judgment is taken against an individual in such court when having full jurisdiction over him." The object of this enactment is very apparent. Prior to its pas- sage our courts had no control over these foreign companies, who felt licensed to defraud our citizens out of their just dues whenever they felt so disposed. In many instances the owners of property insured submitted to ruinous compromises rather than undergo the vexation, expense, and uncertainty of litigating with a powerful corporation in the courts of a distant state. The legislature, there-' fore, very wisely determined that they should not do business in this state unless under certain restrictions imposed for the public good. The right of claiming to sue in our courts is one of the con- cessions made by these companies for the privilege of being per- mitted to establish agencies here. The agreement of the parties, then, in this case, is not only to divest our courts of their jurisdic- tion, but to relieve the defendant of an obligation, not imposed by the insured, but by a law of the state. We are clearly of opinion that such an agreement is null and void. The last ground of error is the refusal of the court to give cer- tain instructions asked for by defendant. The court, at the in- stance of defendant, gave the following instructions : "If the jury find from the evidence that the said Frederick Reicliard was not sober and temperate when the policy sued on was issued, they will find for the defendant. 312 SUPREME COURT OF MISSOURI. Eeichard v. Manhattan Life Insurance Company. " If the jury find that Frederick Reichard was not of sober and' temperate habits on the 16th day of July, 1857, when said policy was renewed, they will find for the defendant. " If the jury find from the evidence that at the time the policy sued on was renewed the said Frederick Reichard was of intem- perate habits, and that this fact was not communicated by the as- sured to the defendant, then thej)laintifF cannot recover. " If the jury find from the evidence, either that the said Fred- erick Reichard was not, at the time of issuing the policy, a tem- perate man, or was not a sober and temperate man when the policy sued on was renewed, the jury will find for the defendant, unless they further find that said defendant had notice that said Reichard's habits were not sober and temperate at these times. " If the jury find from the evidence that said Reichard was not in good health on the 16th of July, 1857, when the policy sued on was revived, then the plaintiff cannot recover in this case." The defendant then asked the court to give the following in- structions, which were refused : " If the jury find from the evidence that Frederick Reichard's death was occasioned by the intemperate use of intoxicating drinks, then the plaintiff cannot recover. " If the jury find from the evidence that Frederick Reichard's death was hastened by the intemperate use of intoxicating drinks, the plaintiff cannot recover. " If the jury find from the evidence that Frederick Reichard died in consequence of the excessive use of intoxicating drinks, then the plaintiff cannot recover." The instructions refused do not, in our opinion, embody the law of the case. They refer to no definite period of time. It is im- material whether Reichard's death was occasioned by intemperance or not. If he was at the time of issuing the policy, and at the time of the renewal thereof, temperate and in good health, then it can- not be said that he made false representations to the company, without which the risk would not have been taken. The risk was taken upon the statement made at the time of issuing the policy, and had no reference to any future change in the habits of the insured. If Reichard became intemperate subsequent to the issuing and renewal of the policy, and this fact could be set up in bar to a recovery, we see no reason why intemperance in eating, the undue exposure of the person to the inclemency of the weather, or any OCTOBER, 1866. 313 Overton v. St. Louis Mutual Life Insurance Company. Other act tending to shorten life, might not with equal propriety be pleaded in bar. The instructions given left it to the jury to say whether, at the time of the issuing and renewal of the policy, Reichard was in good health and of sober and temperate habits. It was a question of fact, and the jury having passed upon it, we see no reason to dis- turb their verdict. The other judges concurring, The Judgment is affirmed. Note. — If there is no concealment or misrepresentation, and no condition of forfeiture covering the subsequent fact set up in defence by the office, the after conduct of the assured cannot vitiate the policy. This is true even of suicide and the destruction of the insurable interest. Horn v. Anglo-Australian, ^c. Life Ins. Co. 7 Jur. (N. S.) 673. Dalhy v. India, Ifc. Life Ins. Co. 15 Com. B. 365. See note to Lord v. Dall, ante, 158. ViEGiNiA C. OvEETOiir, respondent, vs. The St. Louis Mutual Life Insurance Company, appellant. (39 Mo. 122. Supreme Court, October, 1866.) Heath in known violation of law. — In an action upon a life policy conditioned to be void in case the assured die in the known violation of law, Seld, that if the insured came to his death from a pistol shot in a rencontre between him and W., in which rencontre pistols were fired by both parties, and the insured fired his pistol in lawful defence of his person, when there was reasonable cause for him to apprehend a design on the part of said W. to do him a great personal injury, and also to apprehend immediate danger of such design being accomplished, then the insured did not come to his death in the known violation of law. The case is stated in the opinion of the court. Krum ^ Decker, for appellant, cited 1 Hale, 480 ; Foster, 273, cited in Harper v. Phoenix Ins. Qo. 19 Mo. 512 ; [ante, 301 ;] State v. areen, 37 Mo. 467 ; 1 Russell Cr. 527 ; R. C. 1855, pp. 559, 560. Q. D. Brake, for respondent, cited Harper v. Phoenix Ins. Co. 19 Mo. 511, [ante, 301.] Wagnek, J. This was an action to recover the amount of a policy of insurance issued by the appellant on the life of Dudley H. Overton, late husband of the respondent. The policy con- tained this clause, " that in case the said Dudley H. Overton should die in the known violation of any law of this state, or of the United States, or of any government where he may be, this policy shall be void, null, and of no effect." The sole question in controversy is as to whether Overton came to his death under circumstances which worked a forfeiture of the policy on his life within the provisions of the foregoing clause. The evidence shows that Overton came to his death by a wound 314 SUPREME COURT OF MISSOURI. Overton v. St. Louis Mutual Life Insurance Company. received from a pistol ball fired by one John S. Williams, in a per- sonal rencontre which took place between them at Fulton, Missouri, on the 14th of February, 1862. The evidence is conflicting and contradictory as to which of the parties commenced the rencontre that resulted in Overton's death, though the preponderance is that Williams drew and cocked his pistol before Overton fired. The trial was before the court, a jury being waived, and at the instance of the respondent the court declared the law to be that " if the de- ceased, Dudley H. Overton, came to his death from a wound re- ceived by him in a rencontre between him and John S. Williams, in which rencontre pistols loaded with powder and ball were fired by each party at the other ; and if the said Overton's firing of his pis- tol was done in lawful defence of his person, when there was rea- sonable cause for him to apprehend a design on the part of said Williams to do him a great personal injury, and also to apprehend immediate danger of such design being accomplished, then said Overton did not come to his death in known violation of the laws of the land, and the plaintifiF is entitled to recover." The court refused instructions asked for appellant, and then found for the respondent. The instruction given for the respondent, though open to criti- cism, is substantially correct, and asserts the principle that to ex- onerate Overton from criminal agency, or to preclude a forfeiture of the policy, it must be shown by the evidence that when he fired his pistol he had reasonable cause to apprehend a design on the part of Williams to do him a great personal injury, and also that he apprehended immediate danger of such design being accom- plished. A killing under such circumstances, under the statute of this state, would be justifiable homicide, and not a violation of the law within the meaning of the policy. It was the province of the court to weigh the evidence, and having found for the respondent, acting under a view of the law wholly unexceptionable, we have no right or authority to interfere. The facts in this case are very similar to those in Harper's admW v. Phoenix Ins Co. 19 Mo. 506,^ and the principles identically the same ; and the reasoning in the opinion of that case applies with equal force in this case. The court below, therefore, committed no error according to the law as heretofore laid down by this court, and its Judgment must be affirmed. The other judges concur. ' See this case, ante, 301, and note. OCTOBER, 1867. 315 Loos V. Johd Hancock Mutual Life Insurance Company. Eltse Loos, by Cecils Loos, her guardian, appellant, vs. The John Hancock Mutual Life Insurance Company, respondent. (41 Missouri, 538. Supreme Court, October, 1867.) Payable to" heirs (yr representatives." — In an action upon a life policy payable to the " heirs or representatives" of the assured, the ordinarj' meaning is that it is payable to his executors or administrators; but if the language used is such as to imply that the in- tention of the assured was to make the insurance payable to his family, this intention will prevail. The policy is not set out in the original report ; but the provision in controversy is stated in the opinion of the court. J. A. JBeal, for appellant.^ The policy does not provide for the money to be paid to Loos' executors, administrators, or assigns. The. usual words used in policies are these particular ones, where the sum insured goes to the estate on death of the assured. Wyman v. Wyman, 26 W. Y. (12 Smith,) 253. The word " heir " is taken to be the person who will by law of the state inherit. 1 Zabr. 347. Where a policy was effected by a party for the benefit of his widow, and it was simply charged in the suit to be for her benefit, without in so many words specifying in the policy to be for her benefit, the widow is the party to sue even though there is an ex- ecutor. Myers v. Keystone Life Ins. Qo. 27 Penn. State, 268, {post, 668.] Upon the happening of a certain contingency such as death, the sum expressed to be payable to heirs is due to them and not to an administrator. 28 Eng. L. & Eq. 312. Kent says that a person may insure his life for the benefit of another in whom he is interested, but in that case the policy must be assigned. In the case of insurance for heirs it is not necessary to assign the policy to his heirs, as on his death it naturally goes to them. 3 Kent, 368, [Uth ed. 462 and note.] Wyman v. Wyman, 12 Smith, 253, the words in a policy were ■' pay to his executors, administrators, and assigns ; " in the case of Loos, before the court, the words are " heirs or representatives." Courts often construe the word " representative " to mean heirs or consanguinity. 2 Wm's Ex'rs, 973. See statutes for heirs, &c. construed, .3 Bro. C. C. 224, 225 ; 2 Wm's Ex'rs, 950, 951. 1 Several citations in this brief have been strickea out as incorrect. They may be found in 41 Mo. 538. 316 SUPREME COURT OF MISSOURI. Loos V. John Hancock Mutual Life Insuranc« Company. A testator directed the residue of his personal estate after the death of his widow to go to and be distributed among his legal rep- resentatives. Held to mean his next of kin according to the statute of distributions. So in Loos' case the word " representatives " in connection with " heirs " means next of kin. Booth v. Vicars, 1 Collyer, 7. Twining v. Powell, 2 Ibid. 262. 3 Vesey, 146. 2 Wm's Ex'rs, 933, 970-972. See pp. 12, 13 App. to Ang. Life Ins. If it appear that a covenant was made for the benefit of a party, he can sue in his own name. It is not necessary that his name should be used in express terms ; he may be pointed out and desig- nated in the instrument by tlie name of heirs. Chaplin v. Canada, 8 Conn. 286. Fellows v. G-ilman, 4 Wend. 414, 419. Harding ^ Crane, for respondent. The respondent claims that under the facts the appellant could not sue ; that the demand against the respondent is a chose in ac- tion, which can be collected only by the executor or administrator of Louis Loos ; that when so collected the fund will become assets in the hands of such executor or administrator, subject to debts of the deceased ; and that payment by respondent to appellant would not discharge it from liability to the executor or administrator. Wm's Ex'rs, 1st ed. 508, 509, or p. 664 of 3d ed. It is not contended that Louis Loos might not have insured his life for the benefit of his child, or of his wife, or other persons hav- ing an insurable interest, exclusive of any claims by his executors or administrators ; but it is contended that he did not do so in this instance. See act of March 19, 1866, (Sess. Acts 1865-6, p. 59, § 43, incorporated in G. S. 1865, p. 362, § 43,) as to who has an insurable interest outside of creditors, &c. Louis Loos insured for his own benefit. If he had lived fifteen years from the date of the policy he could have collected the sum' insured on himself, or after the delivery of the policy he could have assigned it to whom he pleased. Wagner, J. This was an action brought by the plaintiff on a policy of insurance. It seems from the petition that Louis Loos had his life insured in the office of the defendant, by a policy dated April 4, 1866, in the sum of five thousand dollars, for the term of fifteen years. It was provided by the policy that the sum insured should be payable to said Loos, if he should be living at the expiration of the said term of fifteen years, or, in case of his prior decease, " to his heirs OCTOBER, 1867. 317 Loos V. John Hancock Mutual Life Insurance Company. or representatives." Loos died September 16, 1866, and his daughter Ehza brings this suit, as sole heir, to recover the amount of the policy. A demurrer was filed and sustained to the petition, because the plaintiff had no right to sue. Whether the action accrued to the plaintiff, or should properly have been brought by the executor or administrator of Loos, must depend upon the meaning to be affixed to the word " representa- tives." Legal representatives and personal representatives, in the general or professional sense, mean simply executors or adminis- trators. Although this is the primary legal meaning, they are often construed differently, if it is clear that the intention was to vest the estate in a different class of persons. That they mean executors and administrators will ordinarily be taken as true where nothing is shown to raise a counter presumption, but the meaning is not so inflexibly attached as to prevail in all cases when it is manifest that another disposition was intended. The intention must control, and that intention is to be gathered by a view of the context, subject matter, and the purpose to be attained. The words have therefore been held to mean next of kin when the circum- stances of the case made it apparent that such a construction would efiectuate the object had in view. The language used by the as- sured would seem to indicate that it was his intention, in case of his untimely decease, to make some provision for the surviving members of his family, and not that the money arising from the policy should go to his executors or administrators, to be adminis- tered on as ordinary assets. Policies for a term of life insurance of this description are of frequent occurrence, and where it is meant that the money result- ing from the policy shall descend and be used as common assets, the invariable language is " to pay to the said assured, his execu- tors, administrators, or assigns." The changing of the language and using terms of different expression clearly import that the Tnoney was intended for the benefit of his heirs, or next of kin, and that it was not to be administered on as assets by the executor or administrator. The plaintiff is the only child and sole heir, and she is entitled to the money ; the word "representatives," used in the pohcy in conjunction with heirs, cannot divest her title or di- vert the money to another source. Reversed and remanded. The other judges concur. Note. — But see Wason v. Colburn, ante, 278, construing the expression " heirs or representatives " in its ordinary legal meaning. 318 SUPREME COURT OF MISSOURI. State V. King. State, ex rel, Missouri Mutual Life Insurance Company, petitioner, vs. Wtllis King, Superintendent of the Insurance Department of Missouri, respondent. (44 Missouri, 283. Supreme Court, July, 1869.) Securities. Location of real estate. — Under the law relating to insurance the notes and bonds required to be deposited with the superintendent must be secured on unincum- bered real estate situated within the limits of Missouri. Petition for mandamus. The case is stated in the opinion of the court. Ewing ^ Holliday and Moss ^ Sherzer, for relator. Hitchcock ^ Luhhe, for respondent. Wagnee, J. The relator, a corporation organized under the laws of this state, in compliance with an act for the incorporation and regulation of life assurance companies, approved March 10, 1869, tendered to the respondent, who is superintendent of the insurance department, flOO,000, in notes secured by deeds of trust on unincumbered real estate worth at least double the amount loaned. Included in this amount was a note of one Rufus Ford for $6,750, secured by a deed of trust on unincumbered real estate situated in the State of Illinois. The respondent refused to receive the security of Ford, and refused to give the proper certifi- cate of deposit, and a certificate authorizing the relator to transact business, for the reason, solely, that the real estate was situated in Illinois, and that, under the law, he had no authority to receive notes or bonds that were secured , by deeds of trust on real estate lying elsewhere than in the State of Missouri. This is the only question presented, viz. : whether under the law relating to insur- ance the notes and bonds to be deposited with the superintendent must be secured on unincumbered real estate situated within our own territorial limits ; or whether tlie property, providing that it is unincumbered, may be situated elsewhere. The law on which this contest arises is the nineteenth section of the act for the incoi-poration and regulation of life assurance com- panies. Sess. Acts 1869, p. 32. Among other things, that sec- tion provides that " no joint stock or stock and mutual company formed under the provisions of this act, or of any general or special law of this state, for any purpose mentioned in the first section of this act, shall commence or hereafter continue to do business or JULY, 1869. 319 state V. King. issue policies unless upon an actual capital of at least $100,000 ; nor shall any such company commence or hereafter continue to do any business unless the full amount of capital stock named in its charter or articles of association shall have been in good faith sub- scribed, nor until such company shall have at least $100,000 of its capital paid in and invested in stocks or bonds of the State of Mis- souri, or in treasury notes or stocks of the United States, or in notes or bonds secured by mortgages or deeds of trust on unincumbered real estate worth at least double the amount loaned thereon," &c. It must be conceded that the law is indefinite as to any designa- tion in regard to where the land shall be situated. The only posi- tive requirement is that the real estate shall be unincumbered, and worth at least double the amount loaned thereon. But what was the intention of the law- makers? It is generally true that where words used in a statute are clear and unambiguous there is no room left for construction ; but when it is plainly perceivable that a par- ticular intention, though not precisely expressed, must have been in the mind of the legislator, that intention will be enforced and carried out, and made to control the strict letter. The very frame- work of the insurance law, and the object in passing it, was to afford ample protection and indemnity to the policy holders. One of the means of securing this protection was by depositing notes or bonds on unincumbered real estate. The duty necessarily de- volves on the superintendent of judging of the sufficiency of these securities. It was reasonably supposed that the superintendent would have a tolerably accurate opinion as to the value of lands in Missouri, or at least the means would be accessible to enable him to form a judgment. But by what means could he form any idea as to value if the lands are situated in another jurisdiction ? Where they happen to lie in immediate proximity to this state there might be no difficulty ; but if it is admitted that they may be situated elsewhere, no limits can be prescribed or imposed. Upon the pres- entation of the notes or bonds, with the evidence that they are secured upon unincumbered real estate, the superintendent would be bound to receive them and issue appropriate certificates. The lands might even lie in a foreign dominion ; for, if there is no authority to restrict them to Missouri, there is an equal absence of authority for saying that they shall be embraced in the territories of the United States. But even admit that the real estate must be situated within the boundaries of the general government, the case 320 SUPREME COURT OF MISSOURI. Slate V. King. would still be no better. Notes or bonds might be presented, se- cured by mortgages or deeds of trust on lands situated on the ex- treme slopes of the Pacific, or in Utah, Colorado, or Florida. By what means could the superintendent judge of their sufficiency ? He has no power to employ agents or attoi'neys to investigate the matter, and it would be impracticable if he had. The liability to deception, fraud, and imposition would be great ; and the very purpose which led to the enactment of the law, namely, to supply a solid and substantial basis to which policy holders could look for indemnity and security, would be evaded and defeated. My opinion is that it was the intention of the act that the security should be founded on unincumbered real estate situated in Mis- souri. This construction seems to derive aid from the thirty-fourth and thirty-fifth sections of the same act, where provision is made in regard to the deposit of securities by foreign insurance companies in the states where they are chartered. In such cases the com- panies doing business here, before they are authorized to transact business, must file with the superintendent of the insurance depart- ment of this state the certificate of the commissioner or superin- tendent, or chief financial officer in the state where the deposit is made, stating that he holds in trust and on deposit, for the benefit of all the policy holders of such company, the notes, stocks, and securities required ; and stating the kind of such notes, stocks, and securities, and the amount of each, and that he is satisfied they are worth f 100,000. These provisions show that it was intended in all cases that the commissioners or superintendents should have knowledge not only of the amount but of the solvency of the securi- ties. But the superintendent cannot obtain this knowledge ; and his office is rendered inefficient unless the law be so construed as to bring the means of investigation within his jurisdiction. The writ to compel respondent to receive the note of Ford, and to issue the certificates, should be denied. The other judges concur. JANUARY, 1870. 321 Brown v. Eailway Passenger Assurance Company. Maetha G. Brown, administratrix of Geo. W. Brown, defend- ant in error, vs. Railway Passenger Assurance Company, plaintiff in error. (45 Mo. 221. Supreme Court, January, 1870.) Accident policy. Agency. — Where tickets insuring against accident are made out and signed at the coinpan3''s principal office, and transmitted to their various agencies to be sold in- differently to all who apply for them, the agent's clerk may sell them. *' Travellers^ risk " and " general accident " tickets. — In an action upon an accident policy which provides that the death must be " caused by an accident while travelling by public or private conveyance for the transportation of passengers," it appeared that the insured was killed while acting as an engineer on a railroad. It further appeared that the com- pany's agent was aware of this fact at the time the ticket of insurance was purchased; and that he had received no instructions not to insure railroad employees until after the death of the insured. The company sold two classes of tickets; one known as the " travellers' risk," and the other as the " general accident." The price of the last was the higher; and the insured purchased one of this class. Beld, that this class of tickets insured against all accidents, without regard to the capacity in which the assured was acting, and that the company were liable. Damages. — Under the Missouri statutes the jury may give damages against an msurance company for vexatious refusal to pay the amount of insurance if they are satisfied there was such refusal. Interest. — The Missouri statute allows interest at the rate of six per cent, per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on writ- ten contracts; and it was not error for the court below to instruct the jury to allow inter- est on an accident policy from the time of notice of loss. The case is stated in the opinion of the court. Edwards ^ Son, for plaintiff in error. 1. There is no proof that Brown was a passenger at the time he was killed, or that he was travelling on any conveyance of the kind described in the petition. 2. The question of vexatious refusal to pay is a question of fact ; and it was error in the court to instruct the jury that they had power to allow the plaintiff damages not exceeding ten per cent., in the absence of proof that the refusal to pay was vexatious. 23 Mo. 620-522. 36 Mo. 621. Gen. Stat. 1866, ch. 90, § 1. 3. Miller, the agent of the defendant, had no right to delegate his authority to sell tickets to Church. Defendant is not liable for any ticket sold by Church, or any one else deriving his authority to sell from Miller. Story on Agency, § 13. Bac. Abr. title " Authority," letter D, vol. 1. 2 Kent, 633. 4. Unless Brown was a passenger on a conveyance, public or private, provided for the transportation of passengers, at the time he was killed, his policy did not cover the risk, and the defendant is not liable. 36 Mo. 435. 3 Kent's Com. 312, 318. 322 SUPREME COURT OF MISSOURI. Brown v. Railway Passenger Assurance Company. Ewing ^ Smith, for defendant in error. 1. Church was a sub-agent of defendant, employed by the agent, Miller, to transact and perform an act for the defendant that re- quired no personal skill or discretion, and an act which, by impli- cation and the ordinary course of business, the agent was justified and authorized to employ a sub-agent to perform. Story on Agency, §§ 14, 201, 217, 391, 393, and authorities cited. 1 Pars, on Cont. 82, latter part note p. Mason v. Joseph, 1 Smith, [Eng.] 406. Powell V. Twttle, 3 Comst. 396. Williams v. Woods, 16 Md. 220. 2. The sale of the policy was the act of the agent Miller, and for which he was directly liable to his principal, the defendant. Story on Agency, §§ 160, 161, and authorities cited. By the stat- ute. Church was, to all intents and purposes, the agent of defend- ant. Gen. Stat. 1865, p. 403, § 5. 3. A locomotive engine which transports a train of passenger coaches or cars, is eminently a " conveyance used for the transpor- tation of passengers." As well might it be said that the keel of a steamer was not a conveyance for the transportation of passengers, and that a passenger who was in the hold of a boat when the acci- dent occurred, could not recover his insurance. 4. Brown's ticket was a " general accident ticket," for which he paid the highest price. Wagner, J. Although several questions have been discussed in the argument of this case, there is really but one requiring any particular consideration. The action was to recover the sum of $5,000, the amount of a policy issued by the defendant, insuring the plaintiffs intestate against death by accident for the period of thirty days. The ticket covering the insurance policy was in these words : " The Railway Passenger Assurance Company of Hartford, Conn., will pay the owner of this ticket twenty-five dollars per week in case of personal injury causing total disability, for a period not ex- ceeding twenty-six weeks, or the sum of five thousand dollars to his legal representatives, in the event of his death, from personal injury, ensuing within three months from the happening thereof, when caused by any accident while travelling by public or private conveyance, provided for the transportation of passengers in the United States or British North American possessions, it being un- derstood that this policy covers no description of war risk." JANUARY, 1870. 323 Brown v. Railway Passenger Assurance Company. Miller was the agent of the defendants for the sale of tickets ; and the ticket was purchased by Brown, the deceased, of Church, the clerk of Miller, who transacted his business and sold most of the tickets. Brown, at the time of purchasing the ticket, was an engineer on the Pacific Railroad, engaged in running trains west of Jefferson City, and, in a short time after the purchase of the ticket, and within the time covered by the policy, he was killed, when so engaged, by an accident occurring on the road. It is in evidence that, when the ticket was sold, defendant's agent knew that Brown was an engineer ; and Miller testifies that he had no instruction not to sell to employees of the railroad till after Brown's death. It is also shown by the evidence that the company had, and soldj two classes of tickets. The one was known as the " travellers' risk," the other was the " general accident." The latter was the highest price. The ticket sold Brown was the " general accident," for which he paid the highest price. Upon these facts plaintiff had judgment in both courts below. The first ground insisted on by the counsel for the plaintiff in error is that the contract and sale was void, because Miller was the agent of the company, and he had no authority or right to dele- gate the power to Church to sell ; that Church was not known to the defendant, and it was, consequently, not bound by his acts. It is without doubt a settled principle in the law of agency that where an authority is conferred requiring skill or discretion on the part of an agent, and no power of substitution is given, there the agent must act in person, and the principal would not be bound by any act of a sub-agent. But it is not perceived that the doctrine has any application to this case. These tickets insuring against acci- dents are made out and signed at the company's principal office, and transmitted to their various agencies, to be sold indifferent!}' to all who apply for them. The agent does nothing more than deliver them to the applicant and receive pay for them. The person buy- ing them takes them subject to the printed conditions, and, if he violates the conditions, he incurs the hazard of losing all the bene- fits. As well might it be said that if certain articles of merchan- dise were deposited with a merchant for sale, the merchant's clerks would be incompetent to sell. It would indeed be monstrous to allow these insurance companies to go on and sell tickets and re- ceive all the profits accruing therefrom, and then, when an accident occurred, to shield themselves from liability upon such a pretext. 324 SUPREME COURT OF MISSOURI. Brown v. Eailway Passenger Assurance Company. But the main point in the case is whether the plaintiff's intestate, Brown, was killed by an accident which is covered by the policy. The clause insuring him provides that the death must be " caused by an accident while travelling by public or private conveyance provided for the transportation of passengers." It is strongly contended that a locomotive or engine is not a. con- veyance provided for the transportation of passengers. This is certainly true, and if the ticket applies solely and exclusively to passengers or travellers, the position that the company is not liable cannot be controverted. A passenger would have no right to go upon an engine, and if he was so indiscreet as to venture on such a place, and injury ensued, he would not be protected. But this ticket was designed to include and cover something more than the ordinary risk incurred by the passenger or traveller. The loco- motive is a necessary part of the conveyance. The ticket was a general accident, as contradistinguished from a mere passenger or travelling ticket. The premium on one is double what it is on the other. When the ticket was sold it was known that Brown was an engineer, and the conclusion is unquestioned that he believed that he was insured while pui'suing his employment or occupation. The company so thought, for it gave no instructions against insuring railroad employees till after the disastrous accident happened. Dr. Paley, in commenting on the rule in relation to the con- struction and performance of contracts, says : " Where the terms of a promise admit of more senses tlian one, the promise is to be per- formed in that sense in which the promisor apprehended at the time the promisee received it." Paley's Moral and Polit. Phil. 104. The consequence of the application of this rule to a con- tract of insurance containing mutual stipulations is that each stipu- lation is to be construed favorably to the party entitled to claim its benefit, since it is always a reasonable presumption not only that it was understood by him in its largest sense, but that this was the sense in which the opposite party meant he should receive it. Mr. Duer, in his admirable treatise on marine insurance, in speaking of the interpretation that should be given to policies, (and I know of no reason why the same rule should not be applied here,) says : " As a contract of indemnity to the assured, the policy is to be liberally construed in his favor, not only because this mode of construction is most conducive to the interests of commerce, but because, for the reasons that have been stated, it is probably most JANUARY, 1870. 325 Brown v. Sailwiiy Passenger Assurance Company. consonant to the interests of the parties. It is certain that the assured desires as ample an indemnity as he can obtain, and it is probable that the insurer means that he shall understand the in- demnity givea to be as extensive as its terms, upon any fair inter- pretation, import." Duer on Ins. 161. As Brown was not insured as a passenger and traveller, but against all accidents, without regard to the capacity in which he was acting, the reasonable inference is that the ticket was intended to cover the risk and accident by which he met his death. If it be conceded that the meaning of the ticket is doubtful or ambiguous, still the question must be decided for the plaintiflF, as the promisor would not fail to apprehend that the promisee labored under the impression that he was idemnified, and where such is the case, the construction must be most favorable to the insured. Two further objections are argued against the judgment : first, that the court instructed the jury to give damages for vexatious delay in not paying the amount of the policy ; and second, that it allowed them to give interest at the rate of six per cent, on the amount due from the time defendant was notified of the death of Brown. As to the first objection, the statute in force, and applica- ble to this case, provides that in any action against any insurance company, if the jury believe that such company has vexatiously refused to pay the loss, they may allow damages not exceeding ten per centum on the amount of the loss, and the court shall enter judgment for the aggregate sum found in the verdict. The whole question of vexatious refusal or delay is a matter of fact to be de- termined by the jury. They must make up their verdict on this issue by a general survey of all the facts and circumstances in the case ; and if, upon a full consideration, they conclude that the re- fusal was unjustifiable and vexatious, the law authorizes them to assess the damages. The statute will not ^drnit of the construction contended for by the counsel foi*the plaintiff in error, that before damages are allowed it must be explicitly proved by the plaintiff that the delay or refusal was vexatious. I am of the opinion that the court committed no error in giving the instruction in relation to interest. The statute declares that creditors shall be allowed to receive interest at the rate of six per cent, per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts. 1 Wag- ner's Stat. 782, § 1. 326 SUPREME COURT OF MISSOURI. Brown v. Railway Passenger Assurance Company. The ticket was a contract between the parties, whereby the de- fendant promised to pay to plaintiff's intestate a certain amount upon the happening of a contingency. When the contingency oc- curred, the obligation was binding and absolute, and the sum pres- ently due. The rights of the parties were then fixed, and it was the duty of the defendant to pay on notification of the death of Brown ; and on its refusal to comply, interest was thenceforth pay- able. In addition to this law, the statute above referred to, in regard to the assessment of damages, makes express provision for the recovery of interest. I see no error in the proceedings, and I advise an aiHrmance of the judgment. Judgment affirmed ; the other judges concurring. NEW JEESEi The Tkenton Mutual Life and Fire Insurance Company vs. John Johnson. (4 Zabriskie, 576. Supreme Court, November, 1854.) Burden of proof . — In an action upon a life policy where the plaintiff produced evidence of the truth of the statements of the declaration and those accompanying the policy re- specting the health of the assured at the time of effecting assurance ; and the defendants by pleas averred that the assured was not a sound or insurable life, held, that the burden of proof was upon the defendants to establish the truth of these pleas. Insurable interest. — It is not necessary in New Jersey for the plaintiff to prove an insura- ble interest in the life insured. But if any interest were necessary, it need not be such as to constitute any direct claim upon the insured ; it is sutRcient if any indirect advantage may result from the life. The case is stated in the opinion of the court. Lupp ^ W. L. Dayton, for plaintiffs in error. 1. The court erred in rejecting Sheppard's testimony. Hearing was admissible as to this matter. Besides, " have you heard ? " might mean " have you heard the insured himself say so ? " 2. It -was error to charge that the burden' of proof as to Van Middlesworth's health was on defendants. The averments in the declaration on this point were material, and it was plaintiff's duty to prove them. It was not a question of fraud ; the statements marked " A " were in the nature of warranties. 3. It was plaintiff's duty to prove an insurable interest in the life of Van Middlesworth. A life insurance, like any other insur- ance, is a contract of indemnity only. This was a wagering pol- icy and bad. 3 Kent, 276. 2 Smith's Leading Cases, 292. aodsall v. Boldero, 9 East, 72. 2 Mass. 1. 8 Pick. 446. 10 East, 344. 1 Marshall Juris. 104, 130, 133. J3[. V. Speer ^ Zabriskie, for defendant in error. 1. Sheppard's testimony would have been hearsay, and inadmis- sible. 2. The burden of proof respecting the health of the assured was upon defendants. The averments in the declaration were not material, and it was not necessary to prove them. 4 Halsted, 188. 328 SUPREME COURT OF NEW JERSEY. Trenton Mutual Life and Fire Insurance Companj* «. Johnson. 3. This was a valued policy, and no interest was required to be proved. An action can be maintained on a wager. The case in 9 East, 72, turned upon the English statute. 8 Term, 13. 2 Johns. Cases, 333. 3 Ibid. 39. 3 Caines, 141. 6 Cow. 318. 3 Term, 693. 4 Johns. 426. 7 Ibid. 434. 2 East, 544. 10 Johns. 406. Ryan & Moody, 213. Chitty Con. 394. 1 Phil. Ins. § 5, n. 3 Taunt. 513. Doug. 301. 2 Phil. Ins. §§ 1178, 1183, 1187, 1217. 15 Mass. 341. 2 Greenleaf Ev. § 409. 1 Phil. Ins. § 356. 2 Burr. 1171. There was suiHcient interest. Not necessary that it should be direct. 2 Greenleaf Ev. § 409. 2 New. 303. Park. Ins. 402, 403, 407, 463. 2 East, 549. 3 Day, 108. 12 Mass. 115. 3 Sumner, 142. 3 Greenleaf R. 44. 1 Johns. R. 333. 1 Sum- ner, 401. Elmer, J. This was an action of assumpsit upon a policy of insurance on the life of one John W. Van Middlesworth, appended to which was a statement of particulars marked A, containing, among other things, a statement that he had not been afflicted since his childhood with ruptures, fits, dropsy, &c., and that he had not been afflicted during the last seven years with any severe or con- stitutional disease ; and there was an express declaration signed by the insured, that the said statement was correct, and an agreement that if any untrue or fraudulent allegation was contained therein, then all moneys paid to the company on account of the insurer should be forfeited. The declaration set forth the particulars of this statement, and averred that they were in all respects true. Besides the general issue, the defendants pleaded, secondly, that the statement of particulars was not correct, in that the assured had been afflicted with fits since his childhood, and also during the seven years immediately preceding the making of the policy, with one or more constitutional diseases ; and thirdly, that plaintiff caused the present and general health of the said insured to be de- scribed in the said statement otherwise than it really was, and by means thereof fraudulently induced the defendants to issue the pol- icy. The plaintifi" replied that the statements were true, and that the general health of the insured was not in said statement de- scribed otherwise than it really was. The first error relied upon for the reversal of the judgment was, that the court erred in overruling a question put to Charles L. Sheppard, a witness for the defendants below, namely, Whether he had not heard of Van Middlesworth's having fits before his leav- NOVEMBER, 1854. 329 Trenton Mutual Life and Fire Insurance Company ». Johnson. ing for California. If he had heard so, it would have been only hearsay evidence, and therefore inadmissible. Nor do I see that there was anything in the fact that another witness had been asked and answered the same question, to vary this rule. If it was meant, as was insisted, to inquire whether he had heard this from Van Middlesworth himself, the question should have been so put. Upon the trial, the plaintiff gave the necessary preliminary proofs of the making of the policy and death of Van Middlesworth ; and also proved the truth of the statements in the declaration and the statements accompanying the policy, and then the respective parties offered additional proofs as to the state of health of the said Van Middlesworth at and before the date of the policy. The de- fendants requested the court to charge and instruct the jury, that under the pleadings in the case it was not incumbent on the de- fendants to show by way of defence that the insured was not a sound or insurable life ; but the court instructed and charged the jury that under the pleadings and proofs offered by the plaintiff, it was incumbent on the defendants to show that Van Middlesworth was an unsound and uninsurable life, and that the burden of proof was on the defendants to establish the defence contained in the second and third pleas. This charge was excepted to, and forms the second ground of error now insisted on. The general rule undoubtedly is, that the party who alleges the affirmative of any proposition shall prove it ; and another general rule is, that fraud is not to be presumed. In the case of Leete v. The Grresham Life Insurance Society, 7 Eng. L. & E. 578, a declaration or statement accompanied the policy similar to that in the present case, and the defendants put in a plea averring that certain material allegations in the statement were untrue. Baron Parke, before whom the case was tried, ruled that the burden of proving the allegations to be untrue was on the defendant, and that supposing no evidence was given in support of the plea, the plaintiff would be entitled to recover, assigning as one reason that the allegations of the plea were allegations of falsehood, amounting to fraud in the assured, and must therefore be proved by the party making them, the presumption being always in favor of innocence and against fraud ; and the court refused a new trial. In the case before us the allegations denied by the pleas were purely negative, and the second plea avers affirmative facts, namely, that the assured had been afflicted with fits since his childhood, and had been dur- 330 SUPREME COURT OF NEW JERSEY. Trenton Mutual Life and Fire Insurance Company v. Johnson. I ing the seven years immediately before the making of the policy, afflicted with one or more constitutional diseases, in the said state- ment disclaimed and denied. The third plea is a direct averment of fraud. I am inclined, therefore, to think that the averments on this subject in the declaration are immaterial, and that had there been no proof as to these negative averments or to show fraud, the presumption of innocence would have entitled the plaintiff to a verdict. But whether this be so or not, the bill of exceptions states that he proved by two witnesses the truth of the said state- ments. Under these circumstances I do not think it was an error so afiecting the merits of the case as to require us to reverse the judgment, for the court to instruct the jury that under the plead- ings and proofs it was incumbent on the defendants to show that Van Middlesworth was an unsound and uninsurable life, and that the burden of proof was on the defendants to establish the defence contained in the second and third pleas. It amounted, at most, to an instruction that not only by reason of the presumption of in- nocence, but also by reason of the proofs adduced by the plaintiff, that his statements were true, the burden was thrown on the de- fendants of counteracting this proof and of showing that the defence set up in the special pleas was sustained. The evidence on both sides bearing on this part of the case appears to have been fully summed up by the judge, and fairly submitted to the jury. But the error principally relied on, and the one most important, is, that the court refused to charge as requested, "that under the facts proved the plaintiff had not shown an insurable interest to the full amount of the policy ; that the policy was not a valued pol-. icy, but a policy of indemnity, and that the defendants were not bound to the full extent of the insurance unless on proof to such extent of the value of such interest ; " and that on the contrary the court charged " that under the facts proved, and considering that the nature and extent of the plaintiff's interest was truly stated to the defendants at the time the insurance was effected, so far as the question of interest was concerned, sufficient was shown on the part of the plaintiff to entitle him to recover to the full amount of the policy. A policy of life insurance is a valued policy. Where a man effects an insurance upon his life, the amount to be recovered is the amount insured ; there can be no other measure. In such cases insurers are bound to the full amount of such insur- ance without proof of the value of interest to that extent." NOVEMBER, 1854. • 331 Trenton Mutual Life and Fire Insurance Company ». .lohnson. The policy was effected by Johnson, the plaintiff, and Van Mid- dlesworth, jointly, for the sum of one thousand dollars, for the use, benefit, and account of the said Johnson to the amount of five hun- dred dollars ; and the declaration avers that the plaintiff at the time and until the death of the said Van Middlesworth, was interested in his life in a large amount, to wit, the amount of five hundred dollars. The objection made on the trial to the recovery for want of interest, and the charge on that subject, had reference only to the sum of five hundred dollars, insured for the benefit of Johnson, no objection having been made on that score to the recovery of the five hundred dollars insured for the benefit of Van Middlesworth himself. The declaration also avers that the nature of the plain- tiff's interest in the life of Van Middlesworth was stated to' the agents of the company, and the bill of exceptions shows that this averment was sustained by the proof. His interest was this : Van Middlesworth and the plaintiff, together with certain other persons, had entered into an association called The New Brunswick and California Mining and Trading Company, the capital stock of which consisted of forty-five shares, of six hundred dollars each. The members were partly shareholding members and partly active mem- bers ; the shareholders being required to furnish a substitute to proceed to the mines of the company. The plaintiff owned one share, advanced six hundred dollars of capital, and procured Van Middlesworth to go out as his substitute, which he did, and acted as his agent and substitute, and the assets of the company having been divided in California before his death, he received the plain- tiff's share, dying before he had returned and paid over the same. By one of the articles of the association all treasures, and all the proceeds of the labor of each member, and all profits, were to go into the general fund for the benefit of the whole. On behalf of the plaintiffs in error, it was insisted that the con- tract of insurance is simply a contract of indemnity, and that the plaintiff below having failed to show an interest in the life of Van Middlesworth to the extent of five hundred dollars, was not entitled to recover that sum, and that the judge erred in not so charging. Our first inquiry, therefore, must be as to the nature of the con- tract itself. The case of Grodsall v. Boldero, 9 East, 72,^ is the leading case 1 This case has been overruled by Dalby v. India S^c. Life Ins. Co. 15 Com. B. 365. See note to Lord v. Dall, ante, 158.' 332 SUPREME COURT OF NEW JERSEY. Trenton Mutual Life and Fire Insurance Company v. Johnson. reJied on to show that a contract of life insurance is simply a con- tract of indemnity, not only requiring an interest in the assured, in order to give validity to it at its inception, but continuing, good Dnly so far as it is rendered so by the permanence of such an in- terest. This case has since been adhered to and has often been considered as founded on the common law, an impression to which some countenance is given by some of the language used by Lord Ellenborough in giving the opinion of the court. It is evident, however, that the decision was warranted, not by the common law, but by the statute of 4 Geo. III. c. 48, which does not purport to be a declaratory act, but enacts in express terms that no insurance shall be made on the life of any person wherein the person for whose use such policy shall be made shall have no in- terest, and that in all cases where the insured hath interest in the life, no greater sum shall be recovered or received from the in- surers than the amount or value of the interest of the insured in such life. This statute not extending to Ireland, the courts in that country have held, in several recent cases, that at the common law policies of insurance are valid without any interest. Ferguson v. Lomax, 2 Dru. & War, 120. Brit. Ins. Co. v. Magee, Cook & Al. 182. Scott V. Hoose, Long. & Town. Ir. R. 54. Shannon v, Nugent, 1 Hayes Ir. R. 536, cited in Bunyon on Life Assurance, No such statute exists in this state. Whether an action can be sustained on a policy without interest, which is therefore in some respects like a mere wager on the life of a third person, or on any other wager relating to a transaction in itself legal, does not appear to have been decided by our courts. The case of Mulford v. Bowen, 4 Hal. 315, was an action upon a wager about the weight of a hog, in which the judgment was reversed upon the ground of variance, no notice having been taken by the court of the general question, although it was directly involved, and was argued by the counsel. In the case of Hutchinson v. Targee, 2 Green, 386, a wager policy depending upon the result of a lottery, was held void^ upon the special ground that it contravened the policy of the act for suppress- ing lotteries. Wagers on indifferent questions are held good grounds of action in England ; and it was there held that at com- mon law wagering policies of insurance were valid'. Graufurd v. Hunter, 8 Term, 13. In New York, actions on wager policies and other wagers were sustained, until a statute was passed de- NOVEMBER, 1854. 333 Trenton Mutual Life and Fire Insurance Company v. Johnson. daring thein illegal. Buchanan v. Ocean Ins. Co. 6 Cow. 318. In several other states, where statutes existed prohibiting gaming in such terms as were held to include all wagers, wager policies have been declared illegal. Amory v. Grilman, 2 Mass. 1. Bab- eoch v. Thompson, 3 Pick. 446. Adams v. Penn. Ins. Oo. 1 Rawle, 107. Lloyd v. Leisenring, 7 Watts, 294. Collamer v. Bay, 2 Vt. 144. The American text writers strongly favor the doctrine that wager policies should in all cases be held bad, upon general principles of policy and morality. 3 Kent, 277. Duer Ins. 92. Angell on Life & Fire Ins. § 14, Intr. I confess, however, that whatever might be my opinion as to the expediency of a statute like that in England, before quoted, I must agree with the Irish courts in holding that such is not the law. Our act to prevent gaming (Rev. Stat. 572) does not, in terms or by impli- cation, prohibit all wagers, but only particular kinds of gaming. Until the legislature shall think proper to interfere, the courts can only adhere to the common law as they find it established. To do otherwise would be an act of legislation, and not of judicial con- struction. It was insisted by counsel, and with much apparent force, that wagers on the life of a third person are in their very nature dan- gerous, and contrary to the policy of the law and to sound moral- ity. But the danger, if any exists, would apply with great, although not with equal force, to policies where there is an interest, as well as to those where there is none. All life insurances have been prohibited in some countries. The objection made to the wager in the case of Gfilbert v. SyJees, 16 East, 150, was not merely that a wager on the life of another would endanger his assassination, the fear of the law being deemed sufficient to countervail that, but that the bet was on the life of Napoleon, a foreign sovereign, and grew out of a conversation upon the probability of his being assassi- nated, so that to entertain an action on it was considered to con- travene public policy. As was well remarked in the argument of that case, such an objection would apply with equal force to cases for the life of a third person, which have never been held illegal. The cases of Barl of Chesterfield v. Janssen, 1 Atk. 346, 2 Ves. 25, and of March v. Pigot, 5 Burr. 2803, are direct authorities in favor of the legality of such wagers. And the same principle is sanctioned by the cases which uphold post oiit securities, where, in consideration of an immediate advance of money, bonds arf given, 334 SUPREME COURT OF NEW JERSEY. Trenton Mutual Life and Fire Insurance Company v, Johnson. or contingent or reversionary property changed, for the payment of a much larger amount, upon the death of a particular person. Curling v. Marquis Townshend, 19 Ves. 628. Free v. JSinde, 2 Sim. 7. Modern experience has proved the value of insurances upon the insurer's own life, or upon the life of another, upon whom the in- surer may be dependent, or in whose life he has a real or supposed interest. And it is worthy of notice, that even in England since the statute, so great is considered the injustice of requiring the con- tinued subsistence of an insurable interest, that in practice it is disregarded, and the offices find it to their interest, and are in the common practice of paying, without any inquiry as to the interest. Bunyon, 23. Barber v. Morris, 1 Moo. & R. 66. An insurance upon life has, in fact, but a remote resemblance to a marine or fire insurance. In the latter, the particular object is to indemnify against a pecuniary loss ; and the event upon which the money is made payable is the happening of the loss, the contract being in terms to pay whatever is lost, not exceeding a specified sum. But a life insurance is a contract to pay a certain specific sum on the happening of a particular event, which may or may not occasion a pecuniary loss. Where that event is the death of the insured himself, there is nothing like an indemnity against loss to him, for he can never receive the money. In such a case, the object is to provide for some relation, or friend, or creditor, and this person who is to be benefited by his death has, in many cases, the same motive to desire it, as in the case where the premium is paid and the insurance obtained by a third person. Upon 'a view of the whole matter, I think it admits of great doubt whether the Eng- lish statute, by throwing impediments in the way of life insurances, and by raising questions often of difficult solution as to the nature and amount of the original interest, can be regarded as wise and salutarj'. At all events, in the absence of any such legislation here, I see no solid ground upon which we can safely depart from the doctrines of the common law, and, upon reasons of doubtful expe- diency, hold a policy of life insurance to be somewhat difFerent from what it purports to be — that is to say, a contract to indemnify against loss, and not a contract to pay a given sum upon the hap- pening of a particular event. But if it be admitted that an interest in the life of Van Mid- dlesworth on the part of Johnson was necessary to be shown, I NOVEMBER, 1864. 335 Trenton Mutual Life and Fire Insurance Company «. Johnson. think it satisfactorily appeared that he had such interest. It is clear that the poHcy was entered into not as a cover for a wager, but for the bona fide purpose of securing Johnson against what he and the company regarded as a danger of real pecuniary loss. The interest required need not be such as to constitute the basis of any direct claim in favor of the plaintiff upon the party whose life is insured ; it is sufBcient if an indirect advantage may result to the plaintiff from his life, and therefore the reciprocal interests of hus- band and wife, parent and child, and brother and sister, in the lives of each other, are sufficient to support the contract. 2 Greenl. Ev. § 409. Lord\-. Ball, 12 Mass. 115. In a case before the cir- cuit court of Albany, three persons, V., M., and S., entered into a ■ copartnership to carry on the liquor business. S. undertook the business, and against the capital of V. and M. was to put in his skill. S. insured his life for ten thousand dollars, and, by the arti- cles of copartnership, in case of his death without children, or un- married, his partners, V. and M., were to receive this sum secured by the policy. S. shortly afterwards died unmarried, M. assigned his interest to A., and A. and V. sued to recover the insurance. The court held that V. and M. had an insurable interest, and were entitled to recover. Valton et al. v. National L. F. Life Ass. So?- Angell on Life & Fire Ins. p. 326, n. In the present case, Johnson had a direct interest in the life of his substitute, vrhose earnings were to constitute a part of the joint funds, of which he was enti- tled to his share, an interest fully equivalent to the interest of a wife in the life of her husband, of a child in that of a parent, or a sister in that of a brother. And at Van Middlesworth's death, al- though prior to that time the company had been virtually dissolved, he had an interest in him as his creditor, to the extent of his share of the assets in his hands. I am, therefore, of opinion that there was no error in the ruling excepted to, and that the Judgment must be affirmed. The Chief Justice concurred. As to insurable interest, see Lord v. Doll, ante, 154. 1 Post, 409. • 83« COURT OF ERRORS, NEW JERSEY. Catoir v. American Life Insurance and Trust Company. Daniel Catoir vs. The American Life Insurance and Trust Company. (4 Vroom, 487. Court of Errors, November, 1868.) Agent'S' authority. — Where a life policy is conditioned to be void in case tlie premium is not paid on the day when it becomes due, and the agent, by a writing made part of the policy, is declared not to be authorized to waive a forfeiture for failure in this respect; Held, that a tender twenty-seven days after the sum became due would not avail the assured, though the agent had several times allowed his premiums to run beyond the time of pay- ment, and had given him encouragement verbally that it mattered not that the premium was not paid on the very day when it became due. The case is stated in the opinion of the court. JV. Perry, Jr. ^ C. Parher, for plaintiff in error. E. M. Shreve ^ T. K Me Carter, for defendants. Bedle, J. The writ of error in this case brings up a judgment of nonsuit from the Essex circuit. A bill of exceptions was allowed, and upon the authority of Voorhees v. WoodhulVs executors,^ de- cided at this term, the motion to dismiss the writ must be denied. The sole question now for consideration is, whether the plaintiff, at the time he rested, had made out a sufficient case to entitle him to go to the jury. The suit is upon a policy of insurance for two thousand dollars, upon the life of Anna M. Catoir, the plaintiff's wife, for his benefit, issued by the defendants, a corporation so called in the city of Philadelphia, and bearing date March 4th, a. d. 1864. Mrs. Catoir died April 7th, 1866. The insurance was for her life upon the consideration of the payment of eighteen dollars and ninety cents at the delivery of the policy, and of the further premium of eighteen dollars and ninety cents, to be paid quar- terly thereafter, to wit, on the 8th day of June, September, De- cember, and March, in each and every year, always in advance, during the continuance of the policy, and it was also expressly provided therein, that in case Daniel Catoir, the husband, shall not pay the quarterly premiums on or before the several days specified and appointed for the payment of the same, then the policy shall be void and of no effect, and all payments made, profits, &c., which may have accrued,. shall. be forfeited to the company. There can be no objection to a provision of this kind. It is salutary and wise for fhe solvency and success of corporations like the defendants. The insurance is accepted upon those terms. They form part of » 4 "Vroom, 482, 494. NOVEMBER, 1868. 337 Catoir v. American Life Insurance and Trust Company. the written contract upon which the claim for the benefit of it is based, and the plaintiff is bound to a strict performance of tliem, unless such performance is legally modified by the company. The last premium paid was June 8th, 1865. That kept the policy alive up to September 8th, 1865, on which day another pre- mium became due and payable. That was not then paid, but was tendered to the agent of the company, at Newark, about twenty- three days afterwards, who refused td receive it, he having ascer- tained that Mrs. Catoir was sick. The result of the non-payment of that premium was to forfeit the policy, unless the plaintiff showed that the company had legally waived the paj'ment as it became due. It was not claimed that the company had dispensed with the payment, at the time, by any written agreement or consent, but the tendency of the plaintiff's evidence was to show that Charles Knopf, who it was said was the general agent of the de- fendants, had orally consented, about the time the third payment became due, which was December 8th, 1864, that the plaintiff could pay it afterwards when he had it, and that from that time he had seen Mr. Knopf, and told him he could not pay to the day, and Mr. Knopf had said " Don't be scared if the money is not ready by the day ; when you send it down I will get you the re- ceipt," and that the other payments after that were sometimes a week, sometimes two weeks afterwards, and that the receipts were brought back. This is the chief part qf the plaintiff's case upon the fact or act of waiver. It will be seen at once that it is an effort to show a verbal waiver of performance by an agent of the company in opposition to the terms of the written policy, and that under seal. It is not proposed now to discuss the effect of such verbal waiver when distinctly proved, and when made within the scope of an agent's authority. If Knopf, the agent of this com- pany, had no authority in point of fact, express or implied, to make such waiver, that disposes of this case. In the policy there is a clause that the same shall not be valid until the actual payment of the premium has been made in cash, and receipted for at the bot- tom of the policy, by Charles Knopf, agent for Newark, N. J. The policy also refers to certain conditions and regulations printed on the back thereof, to which it, the policy, by express terms in the body, is subject so far as the same can be applicable, in the same manner as if the same were respectively incorporated in the policy. These conditions, by force of that stipulation, became and are a 338 COURT OF ERRORS, NEW JERSEY. Catoir v. American Life Insurance and Trust Company. > part of the contract of insurance or policy. The first, third, and fifth of such conditions are as follows : — " 1. Policies expire at noon on the last day of the period for which payment has been made. " 3. Agents are not authorized to make contracts for the com- pany, nor to write upon the policy, except his signature, when necessary to the first receipt of premium, (see condition No. 6,) nor to waive forfeiture of the same. " 5. The receipts for the premiums, excepting the first, (to be found on the face of this policy,) will invariably be given on a sep- arate paper, and will not be valid without the seal of the company." The receipt for the first premium is indorsed upon the policy, and signed by Knopf as agent, in accordance with these conditions. This, then, is the character of policy on which the plaintiff bases his suit. It contains an express limitation upon the power of agents. Knopf is termed such in the policy and receipt, and his authority was subject to those conditions. Whatever may have been his precise relation to the company as a medium through whom the insurance was effected, at the time the same was effected, and whatever may be the full scope of the declared inability of the agent to make contracts for the company, it is clear that after the policy was obtained by the plaintiff the agent had then no power to contract with him as against the defendants, to change the terms of the policy, or. to dispense with the performance of any part of the consideration, even by writing, much less by word of mouth. That part of the condition against making contracts is not the only clause of limitation on the act of the agent sought to be en- forced against the company in this case. The words " nor to waive forfeiture of the same," equally limits his power. To waive a for- feiture, it is not necessary that the forfeiture shall first have oc- curred. If the premium is not paid when due, the policy is void. The forfeiture results from the non-payment. If additional credit is legally given on the premium, that is, ipso facto, a waiver of the forfeiture. It is a waiver of the operation of the clause of the for- feiture in the policy. If the agent undertakes to give credit on the premium, he undertakes to waive forfeiture, and that this agent was restricted from doing when this policy was received by the plaintiff. At that time the company sought to protect itself from unauthorized acts of its agents by virtually declaring in what re NOVEMBER, 1868. 339 Catoir v. American Life Insurance and Trust Company. spect their powers were limited, and giving the plaintiff full notice thereof, in the policy. He is estopped, by accepting the policy, from setting up in this case powers in the agent at that time, in opposition to the limitation of the conditions. It being clear, from the policy, in what respect the authority of the agent was restricted at the time of the policy, there is nothing in the plaintiflPs evidence to justify a jury in finding that any additional authority was after- wards given by the company, either express or implied, to relieve the plaintiff from a strict payment of the premium when due. There is no evidence even from which it could legally be presumed that the company had any knowledge of the short delay in the payment of some of the preceding premiums by the plaintiff, and if any presumption of such knowledge could exist, the effect is entirely destroyed by the words in the margin of the receipt of June 8th, 1865, the last receipt of premium, that it is understood and agreed that unless the next premium shall be paid on or before the day it becomes due at twelve o'clock (noon) the policy will be forfeited and void. That Knopf countersigned the receipt of June "8th, 1865, by stamping it with his name as general agent, amounts to nothing against the company, if for no other reason, because he, Knopf, is styled in the receipt as agent, and the attesting clause is " witness the seal of the said company, and the signature of the sec- retary, countersigned by Charles Knopf, agent." There is no evi- dence of any knowledge on the part of the company, that Knopf had styled himself general agent. He certainly did it against the requirement of the receipt in its attestation, and the plaintiff had no right to deduce any new authority from that. In the face of a distinct written expression of a want of power' in the policy, the plaintiff has no right to infer a power to the contrary against the company by any uncertain signs. The limitations are presumed to continue. The case is entirely destitute of any evidence to justify the belief, by the jury, that the company, by direct author- ity, enlarged the powers of the agent beyond what they were as restricted in the policy, or that they in any way knowingly permit- ted him to act for them beyond the scope of such powers. This want of authority in the agent to relieve from the payment of the premium when due, either by writing or verbally, is a fatal defect in the plaintiffs claim, and it is therefore deemed best to rest this decision upon that without any discussion or determination of other questions, based upon a different state of facts. For this reason 340 COURT OF ERRORS, NEW JERSEY. Catoir v. American Life Insurance and Trust Company. the court was bound to nonsuit the plaintiff, and the judgment must be affirmed. JFor affirmance — The Chancellok, Chief Justice, Justices Elmee, Vredenbuegh, Bedle, Daikimple, Woodhull, Wales, Clement, Olden. — 10. For reversal — Judges Kennedy and Ogden. — 2 . See Mutual Benefit Life Ins. Co. t. Ruse, ante, 88, and note. NEW YORK. Breasted et al. administrators, vs. The Farmeks' Loan and Trust Company. (4 Hill, 73. Supreme Court, January, 1843.) Death " by his own hand." — By this expression in a policy conditioned to be void if the assured die on the seas, or in a duel, or by the hands of justice, or by his own hand, is meant the felonious act of suicide ; and therefore such a policy is not avoided by self- destruction during a state of insanifrp'. The policy in question contained a condition that it should be void in case the assured should " die upon the seas, or hy Mi own hand, or in consequence of a duel, or by the hands of justice." ' The defendants pleaded that the assured committed suicide by drowning himself in the Hudson River, and so died by his own hand. Replication that he was insane at the time ; to which the defendants demurred. W. 0. Noyes, for the defendants, cited, Chitty, Med. Jur. 354 ; Bex \. Saloway, 3 Mod. 100 ; Ellis on Ins. 102, 103 ; Blayney, Life Assurance, App. 151 ; Smith, Merc. Law, 256 ; McCull. Com. Diet. 710, 711, (ed. of 1839); Jac. Law Diet. Title "Felo de se"; Ibid. Title " Homicide," III. ; Burn's Law Diet. Title " Feb de se " ; Webster's Diet. « Suicide " ; Park on Ins. 578, 585, 586, (6th Lond. ed.) ; 1 Phil, on Ins. 577, (2d ed.) ; Bell's Prin. of Law of Scotland, 203, § 523, (4th ed.) ; Smith, For. Med. 518 ; Tyrie v. Fletcher, 2 Cowp. 669 ; Bermon v. Woodhridge, Dong. 789 ; The AmicdbU Society v. Bolland, 4 Bhgh, (N. S.) 194 ; Ibid. 2 Dow & Clark, 1 ; Magens on Ins. 32. 8. Sherwood, for the plaintiffs, cited, 1 Hale's P. C. 412 ; 1 Hawk. P. C. ch. 9, §§ 1-6 ; Wood's Inst. 345 ; 4 Bl. Com. 189. Nelson, C. J. The question arising upon the demurrer is, whether Comfort's self-destruction in a fit of insanity can be deemed a death ly his own hand, within the meaning of the policy. I am of opinion that it cannot. Since the argument of the case I have examined many precedents of life policies used by the differ- 342 SUPREME COURT OF NEW YORK. Breasted v. Farmers' Loan and Trust Company. ent insurance companies, and am entirely satisfied that the words in the policy in question import a death by suicide. Provisos de- claring^ the policy to be void in case the insured commit suicide, or die hy his own hand, are used indiscriminately by different insur- ance companies as expressing the same idea ; and so they are evi- dently understood by the writers upon this branch of the law. The policies of the " Society for Equitable Assurances upon Lives " and of the " Crown Life Assurance Company " contain the same form of expression as that employed in the policy in question ; Ellis on Ins. 230, 234; and Mr. Ellis refers to the phraseology as importing the usual condition to be found in all policies, though a majority of them probably use the word suicide. Ibid. 102. That word is used in the policies issued by the following compa- nies, viz. the " Royal Exchange and London Assurance," the "Westminster Society," the "Equitable Assurance," the "Pehcan Life Insurance," Marsh, on Ins. 780, and the " Sun Life Assur- ance ; " 2 McCull. Com. Diet. 93, 94, (Am. ed. ;) and it is said by the American editor of the book last cited, (p. 95, note,) that the policies issued in this country contain the same phraseology. See also 3 Kent's Com. 369. Mr. Selwyn mentions several of the insurance companies above named, and others, including those whose policies contain the same words as the one in question, and speaks of the proviso as meaning, in all cases, an act of suicide. 2 Selw. N. P. by Wheaton, T88-790, (Am. ed. of 1823 ;) see also Smith's Merc. Law, 256. The connection in which the words stand in the policy would seem to indicate that they were intended to express a criminal act of self-destruction, as they are found in conjunction with the pro- vision relating to the termination of the life of the insured in a duel, or by his execution as a criminal. This association may well characterize and aid in determining the somewhat indefinite and equivocal import of the phrase. Speaking legally also, (and the policy should be subjected to this test,) self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand, than to the deadly instrument that may have been used for the purpose. The drowning of Comfort was no more his act, in the sense of the law, than if he had been impelled by irresistible physical power ; nor is there any greater reason for exempting the company from the risk assumed in the policy, than if his death had been occasioned by such means. Construing these JUNE, 1853. 343 Breasted v. Farmers' Loan and Trust Company. words, therefore, according to their true, and, as I apprehend, uni- versally received meaning among insurance offices, there can be no doubt that the termination of Comfort's life was not within the saving clause of the policy. Suicide involves the deliberate termi- nation of one's existence while in the possession and enjoyment of his mental faculties. Self-slaughter by an insane man or a lunatic is not an act of suicide within the meaning of the law. 4 Bl. Com. 189. 1 Hale's PI. C. 411, 412. I am of opinion, there- fore, that the plaintifps are entitled to judgment on the demurrer. Ordered accordingly. AfSnned in the court of appeals. See infra. Breasted et al. administrators, vs. The Pakmers' Loan and Trust Company. (8 N. Y. (4 Seld.) 296. Court of Appeals, June, 1853.) Death " by his own haiid.''^ — In a policy conditioned to be void if the assured die on the seas, or in a duel, or by the hand of justice, or by his own hand, the last expression means the felonious act of suicide ; and therefore such a policy is not avoided by self-destruction during a state of insanity. — Gakdinbe, Jbwett, and Johnson, JJ., dissented. The case is stated in the report from the Supreme, Court, supra. The cause was subsequently tried by referees upon the general issue contained in the pleadings, and they reported in favor of the plaintiffs for the sum payable by the policy with interest from the time it became payable, amounting to $7026.13. They also reported specially, " That the assured, on the 25th day of June, 1839, threw himself into the Hudson River from the steamboat ^rie, while insane, for the purpose of drowning himself, not being mentally capable at the time of distinguishing between right and wrong." Judgment was entered on the report, and the defendant appealed to this court. W. 0. Nbyes, for appellant. 1. The question involved is one as to the interpretation of a contract, and as to the meaning attached to the language used by the parties in making it, and not whether they meant to define the common law ofFence of self-murder or suicide. Such a question is always to be determined by arriving at the intention, and in ascertaining if the words employed in the contract are to be understood in their ordinary acceptation, unless it is clear that they were employed in a diflFerent or more restricted sense. 344 COURT OF APPEALS OP NEW YORK. Breasted v. Farmers' Loan and Trust Company. 2. The words of the policy, " in case he shall die by his own hand," do not mean, nor did the parties to the policy understand them as meaning the common law offence of felonious suicide, such as was usually visited with forfeiture of goods and ignominous burial ; because, (1.) It was intended to exclude all cases of a loss by the act of the party having an interest in causing it ; a funda- mental principal of the law of insurance. The words of the pro- viso operate as a classification of hazards, and the particular cases specified are excepted from the policy. The necessary result is, that every case of suicide or death by the party's own hand irre- spective of the state of mind in which he happened to be when it took place, is excluded. (2.) A great variety of conflicting opinions as to the moral re- sponsibility of persons committing self-destruction have always been entertained ; some contending that all suicide was the eifect of insanity, and the unfortunate subject of it, therefore, guiltless ; others, that the contrary was the more general rule : and it cannot be that the parties to this contract are to be deemed to have left its construction open to the difiicult questions that would necessarily arise upon such a view of the policy, and, in addition, to limit its meaning to only one class of self-destroyers. 3 Mod. 1 00, Hex v. Saloway. Ray's Med. J. of Insanity, §§ 329, 350. 1 Beck's Med. Juris. 655. Chitty's Med. Juris. 353. (3.) The criminal offence of suicide is always excepted by op- eration of law, and it cannot, therefore, be held that the parties expressly contracted for an exception, which the law itself always makes in such a contract ; for if they had expressly stipulated that the criminal offence of suicide should be a loss within the policy, such a stipulation would have been illegal and void. Selwyn's N. P. p. 1043. (4.) These views are fully sustained by the English cases where the question was considered, and incidentally as well as directly de^ cided. Cases where it was incidentally considered : Cowp. 669, Ih/rie v. Fletcher ; Doug. 789, Bermon v. Woodhridge ; Blaney on Life Ins. 81, 82 ; Park on Ins. 440 ; 1 Phil, on Ins. 2d ed. 577. Such is also the opinion of French jurists. Grun & Joliet, Traite des Assurances, pp. 411-541, 428, § 386. Quenault, Trait^ des Assurances, p. 476. Cases where the question was directly decided : 5 Scott's N. R. 418, Borradaile v. Hunter ; S. O. 5 Man. & Gr. 639 ; 7 London Jurist, 443 ; 2 Car. & Kirwan, 134, Schwabe v. JUNE, 1853. 345 Breasted v. Fanners' Loan and Trust Company. Olift. 3 Man., Gr. & Scott, 437, Olift v. Sehwabe in error, in Exch. Chamber. (5.) On well settled common law principles, one who is a Ivnatio or madly insane is just as amenable in a civil suit, for his acts, as a man of sound mind. And though a man is insane, his mind and will do act for all purposes connected with civil rights ; and in this case it is clear that the drowning was voluntary and the result of design, adopted to produce precisely the result accomplished. (6.) The court below did not decide the question presented upon the report of the referees, inasmuch as the replication averred that Comfort was not only insane, hut wholly unconscious of what he did ; whereas the fact is now found, that he voluntarily threw himself into the river for the purpose of drowning himself. The result of the preceding proposition is : 1. That the court below should have rendered judgment for the defendant on the demurrers. 2. That the referees improperly admitted the evidence to show the insanity of the assured. 3. But if the preceding positions are not well founded, still the facts, as found by the referees, do not establish that the assured when he drowned himself was insane, in the legal sense of that term, so that he was not responsible for the act as a violation of a fundamental condition of the policy. (1.) It was not necessary for the defendants to show that he had the most perfect understanding, or that he was entirely free and unrestricted in the use of it, or that he had a perfect and complete comprehension of the moral consequences of his act. A very mod- erate degree of understanding, with a sufficient ability to distinguish between right and wrong, was all that was necessary. Swin. on Wills, 71. 26 Wend. 296, Stewart v. Lispenard. Chitty's Med. J. 354. (2.) The facts establish that the assured well knew that by throw- ing himself into the river he would be drowned, and that he intended to drown himself and knew it was morally wrong to do so, 1 Beck, 548, 555. Pritchard on Insanity, p. 26. ■S. Sherwood, for respondents, insisted that the phrases " death by suicide," and " dying by his own hand," as used in policies of life insurance. Were equivalent terms, and imply self-destruction by one in the possession of his mental faculties ; a criminal self-de- struction ; 1 Hale, PI. Cr. 412 ; 61 E. C. L. 145 ; [2 Car. & Kir. 346 COURT OP APPEALS OF NEW YORK. Breasted v. Farmers' Loan and Trust Company. 134 ;] that a case is not within the exception in the pohcy when the assured died by his own hand while insane. 5 Man. & Gran. 639, 643. 5 Scott N. R. 418. Having no capacity as a moral agent, the self-destruction is no more the act of the deceased than of the parties having him in charge. The good sense of the ex- ceptions in this class of contracts is to prevent intentional sdf- destruction, whether it be expressed in the technical term suicide, or death by his own hand. And*it follows, that the intent to affect a contract in the making or destroying of it, must be such an intent as can be formed by a sane mind ; a person non compos can neither make a bond nor release a bond. WiLLARD, J. The question raised by the decision of the ref- erees is substantially the same as that decided by the supreme court on the demurrer. 4 Hill, 73. It will be unnecessary, there- fore, to give to each a separate examination. It is material to determine, in the first place, what is meant by the term death hy Ms own hand, which is to avoid the policy. If the words are construed according to the Utter, an accidental death occasioned by the instrumentality of the hand of the insured would fall within the exception. Thus, should the insured by mistake swallow poison and thereby terminate his life, his representatives could not recover the policy if the poison was conveyed to his mouth by his own hand. The same rule of construction applied to the words, death hy the hands of justice, in the same connection, would take the case out of the exception, if the death was occa- sioned by strangulation by a rope instead of the hands of the min- ister of justice. But it is too plain for argument that the literal meaning is not the true meaning of either phrase. Death by the hands of justice is a well known phrase, denoting an execution, either public or private, of a 'person convicted of crime, in any form allowed by law. The moral guilt of the party executed lias nothing to do with the definition. Socrates, though he took the poison from his own hand, died by the hands of justice, in this sense of the term. It would be an abuse of language to charge him with an act of intentional self-destruction. The martyrs who per- ished at the stake, in like manner " died by the hands of justice." In popular language, the term death hy his own hand means the same as suicide, or felo de se. The first two, indeed, are not tech- nical terms, and may be used in a sense excluding the idea of crim- inality. The connection in which they are used in this policy JUNE, 1853. 347 Breasted P. Farmers* Loan and Trust Company. indicates that the phrase, death hy his own hand, meant an act of criminal self-destruction. Provisos declaring the policy to be void in case the assured commit suicide, or die hy his own hand, are used indiscriminately as expressing the same idea. In the note to JBor- radaile v. Hunter, 5 Man. & Gr. 648, are given the forms of the proviso, and by seventeen of the principal London insurance com- panies. In eight of them the exception is of a death hy suicide, and in nine, of a death hy the assured's own hands. In two, sep- arate provision is made in case of a death by suicide not f eh de se, and in two others in case of a death hy his own hands not felo de se. It is obvious, therefore, that the phrase, death by his own hand, and death hy suicide, mean the same thing, and that both, unless qualified by some other expressions, import a criminal act of self- destruction. The connection in which they stand in this policy favors this construction. The first four exceptions in the policy are of acts innocent in themselves, three of which become inoperative if the defendants give their consent and have it indorsed on the policy. Then follow the last four exceptions, viz., if he shall die hy his own hand, or in consequence of a duel, or hy the hands of justice, or in the known violation of any law, ^c. By the acknowl- edged rule of construction, noscitur a sociis, the first member of the sentence, if there be any doubt in its meaning, should be controlled by the other members, which are entirely unequivocal, and should be construed to mean a felonious killing of himself. Broome's Maxims, 293, 450. It is a note laid down by Lord Bacon that, eopulatio verhorum indicat acceptionem in eodem sensu ; the coupling of words together shows that they are to be understood in the same sense. And when the meaning of any particular word is doubtful or obscure, or when the expression, taken singly, is in- operative, the intention of the parties using it may frequently be ascertained and carried into effect by looking at the adjoining words, or at expressions occurring in other parts of the same in- strument, for qum non valeant singula juncta juvant. Bacon's Works, vol. 4, p. 26. 2 Buls. Broome's Maxims, 293. Besides, the words in this case are those of the insurer, and if susceptible of two meanings, should be taken strongly against him. It was not contended on the part of the defendant that the pol- icy would be avoided by a mere accidental destruction of life by the party himself. It was urged that it would be, if the act was done intentionally, although under circumstances which would ex- 348 COURT OF APPEALS OF NEW YORK. Breasted ». Farmers' Loan and Trust Company. empt the party from all moral culpability. It was insisted that the expression must be taken to mean a death hy Ms own act. It seems to me that this is a yielding of the whole question. An insane man, incapable of discerning between right and wrong, can form no intention. His acts are not the result of thought or reason, and no more the subject of punishment than those which are pro- duced by accident. The acts of a madman which are the offspring of the disease, subject him to no criminal responsibiKty. If the in- sured, while engaged in his trade as a house joiner, had accident- ally fallen through an opening in the chamber of a house he was constructing, and lost his life, the argument concedes that the in- surer would have been liable. The reason is that the mind did not concur with the act. How can this differ in principle from a death in a fit of insanity, when the party had no mind to concur in or oppose the act ? It must occur to every prudent man, seeking to makei provision for his family by an insurance on his life, that insanity is one of the diseases which may terminate his being. It is said the defend- ants did not insure the continuance of the intestate's reason. Nor did they in terms insure him against the small-pox or scarlet fever, but had he died of either disease no doubt the defendants would have been liable. They insured the continuance of his life. What difference can it make to them or to him, whether it is terminated by the ordinary course of a disease in his bed, or whether in a fit of delirium he ends it himself? In each case the death is occa- sioned by means within the meaning of the policy, if the excep* tion contemplates, as I think it does, the destruction of life by the intestate while a rational agent, responsible for his acts. It is competent, no doubt, for the insurer so to frame his pohcy as to exempt him from^ liability for a death occasioned in a fit of insanity. The parties have not done so in the present case. It is urged that because a person non compos mentis is liable civiliter, for torts committed while in a state of insanity, therefore insanity has no effect to qualify this exception in the policy. That conclusion is not a legitimate deduction from the premises'. A tar tional man is hable civiliter, for an injury occasioned by an accident, unless it be an inevitable one, and yet no one pretends that the insurer is not liable for a death by accident, whether inevitable or not. Indeed, the liability for death by accident was conceded on the argument. A death by accident, and a death by the party's JUNE, 1853. 349 Breasted «. Farmers' Loan and Trust Company. own hand, when deprived of reason, stand on principle in the same category. In both cases the act is done without a controlling mind. If the insurer is liable in the one case, he should be in the other. If the insured was compelled by duress to take his own life, it will hardly be contended that the insurer could avoid payment. In what consists the difference between the duress of man and the duress of Heaven ? Can a man be said to do an act prejudicial to the insured when he is compelled to do it by irresistible coercion ; and can it make any difference whether this coercion come from the hand of man or the visitation of Providence ? But it is urged that this is a civil action, and the contract of in- surance a civil contract. Be it so. A person so destitute of reason as not to know the consequences of his acts can make no valid contract. Whether the incompetency be the result of disease or of intoxication, his contracts made while in that condition are void. Barrett v. Buxton, 2 Aikens, Vt. Rep. 167, approved by Ch. Wal- worth in Prentice v. Achom, 2 Paige, 81, and by Ch. Kent in 2 Com. 451. Smith's Law of Contracts, 329, 333, and notes. If the party could do no act to bind himself, he certainly could do none to discharge the insurer. If he could not make a bond, he could not make a release. If he could not make a will, he could not re- voke one. The liability of a lunatic for necessaries rests upon the ground that the law will raise a contract by implication on the part of the lunatic, in favor of the party who has supplied them in good faith, and therefore does not affect the present question. Wentworth v. Tubb, 1 Younge & Col. Ch. 171. The cases on this head are analogous to that of an infant. See Smith's Law of Contracts, 325, et seq. and notes, where the cases are collected and reviewed. The law to prevent a failure of justice will imply a promise by a party incapable of making a contract ; but it will never imply that a party incapable of distinguishing between right and wrong was guilty of a &aud. At the time this case was decided by the supreme court on the demurrer, there had been no case, either in this country or in Eng- land, in which the same question had arisen. The case of Borra- dailev. Hunter, 5 Man. & Gr. 639, decided by the English common pleas in 1843, has since been reported. That action was brought by the executor of the insured upon a life policy containing a pro- 350 COURT OF APPEALS OF NEW YORK. Breasted v. Farmers' Loan and Trust Company. viso, that in case the . assured should die by his own hands, or by the hands of justice, or in consequence of a duel, the policy should be void. The assured threw himself into the Thames and was drowned. Upon an issue, whether the assured died by his own hands, the jury found that he voluntarily threw himself into the water knowing at the time that he should thereby destroy his life, and intending thereby to do so ; but at the time of committing the act he was not capable of judging between right and wrong. It was held by a majority of the court, Tindal, Ch. J., dissenting, that the policy was avoided, as the proviso included all acts of volun- tary self-destruction, and was not limited by the accompanying proviso to acts of felonious suicide. The three judges who formed the majority, laid the main stress upon the fact that the jury found the act of self-destruction to be voluntary, that he knew when he threw himself into the river he should thereby destroy his life, and that he intended thereby to do so. The referees in the present case have not found that the intestate acted voluntarily, or that he knew the consequence of his act. They merely find that while insane, for the purpose of drowning himself, he threw himself into the river, not being mentally capable of distinguishing between right and wrong. If Borradaile v. Hunter be an author- ity which we ought to follow, it differs so much from the case be- fore us, that we are at liberty to decide it upon principle. After the case of Borradaile v. Hunter, the case of Schwdbe v. Olift was tried at nisi prius, before Cresswell, J. It was upon a policy upon the life of the plaintiff's intestate, containing the proviso that if the assured should " commit suicide, or die by duelling or by the hands of justice," the policy should be void. The assured died from the effects of sulphuric acid taken by himself, but evidence was given tending to show that at the time he took the sulphuric acid, he was in part of unsound mind. In his charge to the jury, the learned judge said that to bring the case within the exception, it must be made to appear that the deceased died by his own voluntary act ; that at the time he committed that act, he could distinguish between right and wrong, so as to be able to understand and ap- preciate the nature and quality of the act he was doing ; and that, therefore, he was at that time a responsible being. The jury found for the plaintiff. 2 Car. & Kirwan, 134. This cause was after- wards brought into the court of exchequer chamber on the bill of exceptions, and will be found in 3 Man. & Gr. 437, by the title of JUNE, 1853. 351 Breasted v. Farmers' Loan and Trust Company. Olift V. Schwahe. That court, by a vote of four to two, ordered a new trial, holding that the direction was erroneous ; for that the terms of the condition included all acts of voluntary self-destruction, and therefore, if A voluntarily killed himself, it was immaterial whether he was or was not at the time a responsible moral agent. The case is open to the same remark as Borradaile v. Hunter, Bupra. It turned upon the assumed fact that the act of suicide was voluntary, a fact not found by the referees in this case. Gardiner, J., dissenting. The referees in this case have found "That the assured, on the twenty-fifth day of June, 1889, threw himself into the Hudson River, from the steamboat Urie, while insane, for the purpose of drowning himself, not being mentally capable at the time of distinguishing between right and wrong." The question is whether this act avoided the life policy in question, one condition of which is, that if the assured " should die by his own hand," the policy should be void. It is by the finding established, that the assured cast himself into the river for the purpose of drowning himself. The act com- mitted by him was therefore voluntary, and accompanied by so much intelligence as to enable the agent to contemplate a particu- lar result, and adopt the means requisite to accomplish it. His object was self-destruction by drowning. For this purpose he cast himself into the river, and thereby effected it. If this was not " dying by his own hand " within the spirit and intent of this clause of the policy, it is difficult to attach any legal significance, to such language. If under the same circumstances the assured had destroyed the property or assaulted the person of a citizen, he would have been civilly responsible for all the damages sustained by the latter. Weaver v. Ward, Hob. 134. Gross v. Andrews, Cro. Eliz. 622. Insanity, unless it suspended the power of volition, would be no justification ; still less a want of moral perception to distinguish between right and wrong. I can perceive no reason why upon the same principle he should not be held responsible for a wilful breach of contract resulting from self-destruction, where it was premeditated, and accomplished by means usual and appropriate to effect his design. In Bagster V. Earl of Portsmouth, 7 Dowl. & Ryland, 614, it was held that a lunatic was capable of contracting for necessaries. " Imbecility 352 COURT OF APPEALS OF NEW YORK. Breasted v. Farmers' Loan and Trust Company. of mind," says C. J. Abbott, " may, or may not be a defence in the case of an unexecuted contract." These cases show that the assured, although insane, is a responsible agent for some purposes, and consequently, a fortiori, that he can be affected and bound by a condition which qualifies the liability of the insurers, and which in terms is made to depend upon an act to be performed b;y the former. In Borradaile v. Hunter, 5 Manning & Granger, 639, in a hfe policy containing the same proviso found in the one before us, the jury found that the insured, " voluntarily threw himself into the water, knowing at the time that he should thereby destroy his life, and intending thereby to do so, but at the time of committing the act he was not capable of judging between right and wrong." It was held that the policy was avoided. The proviso included all acts of self-destruction, and was not limited by the accompany- ing provisos to acts of felonious suicide. This decision was pro- nounced in 1843, and the case is not distinguishable from the one under consideration. The case cited was argued and decided as one of insanity, in which, however, the assured was capable of voluntary action. Erskine, J., remarked "that all the contract required was, that the act of self-destruction should be the volun- tary and wiHul act of a man, having, at the time, sufficient power of mind to understand the physical nature and consequence of the act, and having the intention to choose his own death." In that case, and in the present, the incapability of distinguish- ing between "right and wrong was the measure of the insanity of the assured. Four years afterwards, Olift v. Schawhe was decided in the exchequer chamber, (64 Eng. Com. L. 437; 3 Manning, Granger & Scott, 437,) upon a policy in which the word sui- cide occurred in place of the phrase " dying by his own hands." The issue was upon the fact of suicide, and an exception to the charge of the judge: it was held that the terms of the condition included all acts of voluntary self-destruction, and if the insured voluntarily killed himself, it was immaterial whether he was or not a responsible moral agent. These cases are directly in point : that last mentioned is much stronger for the assured than the one now under consideration. When this case was before the supreme court on demurrer, the replication averred that when the assured drowned himself he was of unsound mind, and Utiholly unconscious of the act. This was ad- JANUARY, 1846. 353 Moehring v. Mitchell. mitted by the demurrer, and the question whether voluntary action can exist without some degree of consciousness, is very different from the one presented by the finding before us. I think the judgment of the supreme court should be reversed. Upon the disposition of the case, Ruggles, Ch. J., Willaed, Morse, Mason, and Taggakt, JJ., were in favor of aflBrmance of the judgment, and Gardiner, Jevfett, and Johnson, JJ., for a reversal. Judgment affirmed. Note. — Eastahrook V. Union 3Iut. Life Ins. Co., ante, 139, holds the same doctrine as that of the above case ; while Dean v. American Mut. Life Ins. Co., ante, 195, Nimick v. Mut. Ben. Life Ins. Co., post, 689, and Cooper v. Mass. Life Ins. Co., post, 758, hold the contrary. See St. Louis Life Ins. Co. v. Graves, 736. Moehring vs. Mitchell, public administrator, &c. (1 Barb. Ch. 264. Court of Chancery, January, 1846.) Powers of tnarried women. Disposal of life policy by will. — A married woman procured a policy of insurance upon the life of her husband in her own name and for her own use, as authorized by § 1 of the act of April, 1840. The insurance was made paj'able to her children in case of her death before that of her husband. The wife subsequently executed a paper propounded as a will in this case, by which she attempted to dispose of her policy, in which no power of disposal was given. Held, that under the statute she could not dispose of the policy of insurance by will, even with the assent of her husband. The case is fully stated in the opinion of the chancellor, infra. The following opinion was delivered by the circuit judge, from which the appeal was taken. Kent, C. J. I agree with the surrogate in his conclusion as to the invalidity of the will of Mrs. Leo Wolf. The right of making a will of real property a married woman never had by the law of England or America, at least since the Conquest. As to personal property, before our revised statutes, the capacity of a married woman was less restricted. She could not devise lands, because by the feudal law none could devise ; and the statute of wills (32 & 34 Henry VIII.) did not relieve her from this restriction. But she was prevented from exercising the power of testamentary dis- position of personal effects, which power, by imperceptible degrees, freeing itself from ecclesiastical usurpations, became common to all persons except married women, by the rights acquired by her hus- band in her personal property ; and with which rights a power in the wife of bequeathing that personal property would have been 23 354 COURT OF CHANCERY, NEW YORK. — — ^ — a , ^ Moehring «. Mitchell. inconsistent. 2 Black. 498. The license of the husband gave her the power of testamentary disposition, because it removed the reason for restricting the power. But the revised statutes, (2 R. S. 60,) it seems to me most clearly, put an end, by positive and unequivocal prohibition, to the remnant of testamentary power remaining in married women. " Every person of the age of eighteen years, or upwards, and every female, not being a married woman, of the age of sixteen years, or upwards, of sound mind and memory, and no others, may give and bequeath his, or her, personal estate, by will in writing." There is no reservation of preexisting rights, as in a recent English statute on this subject. 1 Vict. c. 26. What was a common law right has become statutory ; and a positive prohibition is enacted against the exercise of the right by any other than those mentioned in the statute. A married woman may not, then, give and bequeath her personal estate by will in writing. The disposition of personal estate by will appears to me to be forbidden to married women by language even stronger than that which prevents her devising real estate. The consent of the husband could not authorize a devise of lands ; and I cannot see how it can, under our laws, authorize a testament of chattels. This doctrine will not exclude a disposition of personal property, testamentary in its nature, or akin to a testament, if made by a married woman under* a power. For, as was observed in an early case, QSouthhy v. Stonehouse, 2 Ves. Sen. 610,) such disposition is not a proper will, but merely a direction of the use or trust, arising under the instrument creating the power, and depending for its efficacy wholly upon the validity of that instrument. Neither do I pretend to saj' it would limit or affect the power of a court of equity to carry into effect a wife's disposition of her separate estate. All I mean to say is that in the present case I cannot see how the surrogate, in the exercise of his duties in recording and granting probate of wills, could, under our existing laws, permit the paper propounded to be proved as the last will and testament of Isabella Leo Wolf. The decree of the surrogate is therefore affirmed. Gt: F. Allen, for the appellant. M. Wilson, for the respondent. The Chancellor. The facts in this case, so far as the same can be ascertained from the proceedings returned by the surrogate, are substantially these. In May, 1840, Isabella Leo Wolf, the JANUARY, 1846. 355 Moehring v. Mitchell. wife of Joseph Leo Wolf, procured a policy of insurance from the ■ New York Life Insurance and Trust Company, upon the life of her husband, for $5,000, for the term of five years. The policy was in her own name, and for her sole use, as authorized by the first section of the act of April, 1840, in respect to insurances for lives for the benefit of married women. Laws of 1840, p. 59. And the amount was made payable to the assured, or her execu- tors, administrators, or assigns, for her sole use, within sixty days after due notice and proof of the death of her husband ; and in case of her death before his decease the same was made payable to her children for their use, or to their guardian if they were under age, as authorized by the second section of that act. In March, 1841, the assured and her husband, and, as the counsel for the appellant states, their only child, sailed for Europe in the steamship Presi- dent, and have never since been heard of; and there is no doubt that such ship was lost and that all on board perished. A few days before they sailed for Europe Mrs. Leo Wolf executed the paper propounded as her will, in the presence of two subscribing wit- nesses, on the back of the policy of insurance, in the following words: "In the event of the within policy, No. 1321, of the New York Life Insurance and Trust Company, becoming payable by said company in consequence of the death of my husband, Joseph Leo Wolf, and in the event of my being, at the time when the within policy becomes payable, not among the living, it is my wish and will, and I hereby order and direct that the amount insured in said policy, on the life of my husband, shall be paid over to Doctor Gottlief Moehring, of the city of Philadelphia, in trust, to be held by him for my daughter Mary Jane Leo Wolf, until her becoming of age ; and in the event of her death before coming of age, without issue, I hereby direct that the whole amount thus held in trust by the said Gottlief Moehring shall be divided in equal parts and shall be paid over to the children of the brothers and sisters of my husband, Joseph Leo Wolf, living at the time when such division shall take effect. Given under my hand and seal in the city of New York, this 6th day of March, 1841. Isa- bella Leo Wolf." (L. S.) And her husband, at the same time, and in the presence of two subscribing witnesses, wrote the follow- ing consent under the same : " I consent to the above, and ratify the same. New York, 6th March, 1841. Joseph Leo Wolf" In April, 1842, G. F. Allen, as proctor for the appellant, who 356 COURT OF CHANCERY, NEW YORK. Moehring v. Mitchell. was the trustee, or executor, named in the instrument propounded as a will, presented a petition to the surrogate of New York, stat- ing that the decedent left assets or personal estate in the city and county of New York ; and praying that the instrument propounded might be admitted to probate, and that letters testamentary thereon might be granted. The next of kin of the decedent were duly cited to attend before the surrogate, and the public administrator, having taken out administration on the estate of Joseph Leo Wolf, was also cited ; and they resisted the probate of the instrument propounded, upon the ground that a married woman could not, under the provisions of the revised statutes, make a will of personal estate, even with the consent of her husband. The surrogate sus- tained the objection, and rejected the instrument propounded as a will, upon that ground alone. And the circuit judge, upon appeal to him, arrived at the same conclusion, as appears by his written opinion. The insurance money in this case, by the terms of the policy, was made payable to the children of the assured, in case she died before her husband. If her daughter had survived her, therefore, it would have been necessary, perhaps, to inquire whether there is any legal presumption that the husband survived his wife, when they have both perished by the same disaster, and when there is no extrinsic evidence to guide the judgment of the court upon this matter of fact. In the cases of Taylor v. DvploeJc, 2 Phill. [Eccl.] Rep. 267 ; Colvin v. The King's Proctor, 1 Hagg. Eccl. Rep. 92, and in SelwyrCs case, 3 Idem, 748, it appears to have been supposed, in the absence of any evidence to justify a different conclusion, that the court would be bound to presume a survivorship of the hus- band, where the husband and wife perish together at sea, upon the ground, I presume, that the greater strength of the male would probably enable him to sustain life the longest in such a calamity. But as there is no presumption of the survivorship of the daughter in this case after the death of her mother, and the probability is that they both perished at the same moment, it becomes immaterial to inquire whether it must be presumed that the husband survived his wife. It is sufficient for this case that there is no legal pre- sumption that she survived him. For if she did not survive him I am of opinion that the act of April, 1840, does not extend to the case ; and that, in the event which has occurred, this contract of insurance stands upon the same footing as any other contract made JANUARY, 1846. 357 Moehring V. Mitchell. by Si feme covert, in her own name, in the hfetime^of her husband, and without the intervention of a trustee. By referring to the first section of that act it will be seen that the insurance money is only payable to her, to and for her own use, free from the claims of the representatives of the husband and of his creditors, in case she survives her husband; but not where they both die at the same instant, or where he survives her. The second section of the stat- ute provides for the case of survivorship of the husband where the wife has left children, by authorizing the insurance money to be made payable to such children, or to their legal guardians, for their use. But no provision is made by the statute for this case, where there are no children, and where the husband survived the wife, or where they both perished at the same instant, so that neither survived the other. In regard to bonds, notes, and other contracts for the payment of money given to the wife during coverture, the common law rule appears to be that the husband may sue upon them in his own name, or in the name of himself and wife jointly, at his election. Where he elects to treat them as his own by bringing a suit and proceeding to judgment in his own name, the judgment will belong to his personal representatives, although his wife survives him. But if he sues in their joint names the judgment will belong to her by survivorship. And where the consideration of the bond or other security given to the wife in her own name, during cover- ture, has proceeded from her or her estate, or where it was the gift of a third person, it seems that if the husband does not dispose of such security, or collect the money thereon, or proceed to judg- ment in his own name during his lifetime, it will belong to her by survivorship if she outlives him. See Nash v. Nash, 2 Mad. Rep. 133 ; Milliare ^ wife v. Hamhridge, Aleyn's Rep. 36 ; and Sear- ing V. Searing, 9 Paige's Rep. 283. In cases of this kind, as well as in cases of choses in action given to the wife before cover- ture, or other property of the wife not reduced to possession by the husband, the wife was permitted, previous to the revised statutes, to dispose of the same by will, with the written authority and con- sent of her husband in case he survived her. The principle upon which such wills were originally sustained in equity, and after- wards at law, probably was that as the husband, if he outlived the wife, would be entitled to the property by survivorship, and had also the right to reduce it to possession immediately, during cover- 358 COURT OF CHANCERY, NEW YORK. Moehring v. Mitchell. ture, he might waive such right. He could, therefore, allow her to appoint it to whom she pleased by an instrument in the nature of a will ; although such will was, in fact, nothing but an appointment with his assent. The provisions of the revised statutes, however, have somewhat changed the husband's rights to the property of his wife by survivorship, by refusing him the right to administer thereon without giving securitj».for the payment of her debts to the amount of the assets which may come to his hands. 2 R. S. 75, § 29. And as he is entitled to all his wife's personal estate by sur- vivorship, and even during her life subject to her equity to a sup- port out of the same, he ought not to be permitted to deprive his own creditors of the benefit thereof, in case of her death, by per- mitting her to dispose of it by will during coverture. The provision of the revised statutes which declares that males of the age of eighteen years and upwards, and unmarried females of the age of , sixteen and upwards, and no others, may dispose of his or her per- sonal estate by will, (2 R. S. 60, § 21,) is, as I think, sufficient to deprive a feme covert of the right to make a will of personal estate of the character above described, founded upon the mere assent of the husband to the making of the same. And I am also inclined to think it likewise deprives her of the right to dispose even of her separate estate by will, where it is not so disposed of in pursuance of a power, either beneficial or in trust, to dispose of such separate estate by will or by a testamentary instrument in the nature of a will. The revised statutes, however, have expressly provided for the execution of beneficial powers, as well as powers in trust, hy femes covert, in relation to their real estate and chattels real. See 1 R. S. 732, §§ 78, 80, 87; Idem, 735, §§ 105, 106, 110, 115; Idem, 737, § 13 ; and Idem, 750, § 10. I cannot therefore be- lieve that it was intended by the legislature to deprive a feme covert, who has personal estate conveyed to her separate use, with an express power to dispose of it by will at her death, of the right to make a will, or an instrument in the nature of a will, for the purpose of appointing or disposing of her separate estate in pursu- ance of such power. That question, however, is not necessary to be settled at this time, as there was no power reserved in the pol- icy in this case authorizing the wife to dispose of the insurance money, by will or otherwise, in the event which has occurred. Nor had the interest of the husband, or of the wife, in this policy, NOVEMBER, 1853. 359 St. John ». American Mutual Life Insurance Company. been conveyed to a trustee, subject to such a power of appointment by the wife. For these reasons I think the insurance money be- longs to the personal representatives of the husband, to be disposed of as a part of his personal estate ; and that the instrument pro- pounded as the will of Isabella Leo Wolf ought not to be admitted to probate. The order of the circuit judge affirming the sentence and decree of the surrogate must, therefore, be affirmed. As this, however, was a new and somewhat difficult question, arising for the first time under the provisions of the revised statutes, and of the act of April, 1840, I shall not charge the appellant with the costs of the re- spondent on this appeal ; but shall direct such costs to be paid out of the insurance money which is in controversy in this suit. St. John vs. The American Mutuax Life Insurance Company. (2 Duer, 419. Superior Court of New York, November, 1853.) Trust. — The trustee of a life insurance policy may recover in his own name, for the ces- imque. trust, the whole sum to which the latter is entitled, without joining the beneficiary. Assignment. — The assignee, for value, of a life policy, may recover the full sum insured, without regard to the sum advanced by the assignee to the assignor, in consideration of which the assignment was made. Case upon a verdict for the plaintiff, subject to the opinion of the court, at general term. The action was brought to recover the amount of two policies of insurance upon the life of one Charles Noyes. The complaint averred that the defendants are a corporation created by the laws of Connecticut, and that, on or about the 12th of October, 1850, they effected a policy of insurance with one Charles Noyes, numbered 2500, and dated 11th October, 1850 ; and executed and delivered the same to Noyes, by which, in con- sideration of the sum of $4.22, to them paid, and of the premium of fl9.20, to be paid annually on the first day of January in each year, they insured the life of Noyes in the amount of |2,000, for the term of six years and six months, from the 11th October, 1850 ; and promised to pay the said sum of |2,000 to the heirs, executors, administrators, or assigns of Noyes, within ninety days after due notice and proof of his death. The complaint then averred that, on the 20th October, 1850, Noyes, for a valuable consideration, and by an instrument in writ- 360 SUPERIOR COURT OF NEW YORK. St. John t>. American Mutual Life Insurance Coaapany. ing, duly assigned the said policy to the plaintiff, who, on the same day, caused notice of the assignment to be given to the de- fendants, and an entry thereof to be made in their books. It then set forth the execution by the defendants, and the deliv- ery to Noyes of a second policy upon his life, numbered 2499, of the same tenor and date, for the same amount and for the same term of years, which it allegec^ that Noyes, on the 14th of Feb- ruary, 1851, for a valuable consideration, by an instrument in writing, duly assigned to the plaintiff, of which due notice was given to the defendants, and an entry thereof made in their books. It then averred the due payment of premiums, and the perform- ance by Noyes, and the plaintiff as assignee, of all the conditions of the insurance. That Noyes died at New Haven, in Connecti- cut, on the 12th March, 1851. That on the 15th of the same month the plaintiff gave to the defendants due notice and proof of his death. That the defendants, although admitting their liability, had omitted to pay to the plaintiff the sum insured, and demanded judgment for $4,000, with interest from the 13th June, 1851, be- sides costs. The answer of the defendants denied that due notice and proof had been given of the death of Noyes ; and then set up four sepa- rate defences, the two last of which only are necessary to be stated, no evidence having been given on the trial in support of the others. The fourth separate defence, after denying that the plaintiff gave a valuable consideration for the assignments of the policies, averred, upon information and belief, that he had not, at the time of the death of Noyes, any interest in his life, and had not been injured by his death. The fifth averred that, if the plaintiff ever lent or advanced any sum whatever on the said policies, he lent or ad- vanced no more than the sum of $300, and was therefore not en- titled to recover more than that sum ; and that, if the defendants were liable to pay the sums insured, the personal representatiyes of Noyes were interested in the claim, and were necessary parties to the action. The reply takes issue upon the allegations in the first four de- fences, and, in answer to the fifth, avers that, when Noyes assigned the policies, the plaintiff paid to him the sum of $300 in cash, and agreed and undertook to pay all the premiums which might there- after accrue thereon during the periods for which they were issued ; and in case of the death of the said Charles Noyes, to collect the NOVEMBER, 1853. 361 St. John V. American Mutual Life Insurance Company. amounts secured to be paid by the said policies of insurance, and after deducting five hundred dollars to reimburse the said plaintiff for his payments to the said Charles Noyes and otherwise, on ac- count of the said policies of insurance, to pay the balance of the amounts secured to be paid by the said policies of insurance to Elizabeth G. Noyes, then the wife, and now the widow of the said Charles Noyes : and that no executor, administrator, or other per- sonal representative of the said Charles Noyes, or any other person, has any claim upon or interest in the amount secured to be paid by the said policies of insurance, or either of them, or is a necessary- party to this action ; but that the whole of the amount secured to be paid by the said policies of insurance is due and payable to the said plaintiff, upon his own account, and in trust for the said Eliza- beth G. Noyes ; and that the said plaintiff is entitled to receive and recover the same, and to judgment, therefore, in this action. Upon these pleadings, the cause came on to be tried before Mr. Justice Campbell, and a jury, on the 22d January, 1853. Upon the trial, the counsel for the plaintiff put in evidence the two policies and the assignments thereof, the due execution of all being admitted. The sale and assignment of the policy 2499, was stated to be in general terms " for a valuable consideration ; " that of policy 2500, in consideration of the sum of $300, paid by the plaintiff to Noyes. It was also proved that the policies in question were issued from the ofiice of an agency of the company in the city of New York, in exchange for a prior pohcy for |4,000, which Noyes had previously effected, and then surrendered ; that a book of the defendants, lettered on the back, " American Mutual Life Insurance Company — New York Register," was kept in that office, in which entries in columns, properly headed, of all particu- lars deemed material in relation to the policies issued from the of- fice, were made ; and that in that book the following entry, bearing date 11th October, 1850, was made in a column, headed, " For whose benefit," relative to the policy 2499 : " Wife " — the fol- lowing, relative to policy, 2500 : " Self assigned to M. St. John." The papers were then read in evidence in the words and figures following : « New York, October 30th, 1850. " In case of the payment to me by the American Mutual Life Insurance Company, of New Haven, Ct., of a policy of insurance effected by Mr. Charles Noyes, in said company, on his life, for 362 SUPERIOR COURT OF NEW YORK. St. John V. American Mutual Life Insurance Company. two thousand dollars, and this day assigned to me by said Charles Noyes, I will pay to his wife, Elizabeth G. Noyes, the sum of fif- teen hundred dollars. " Milton St. John." " In case of the decease of Charles Noyes during the continu- ance of policy of insurance. No. 2499, effected on the life of said Charles Noyes, in the office of ^the American Mutual Life Insur- ance Company, New Haven, Ct., for two thousand dollars, for the term of six years and six months, from October 11th, 1850, which I promise to keep alive by the payment of such premiums as the said company have a right to demand,* and to account faithfully to Mrs. E. G. Noyes, wife of said Charles Noyes, for such sum as may be received by me from said American Mutual Life Insurance Company. New York, February 14th, 1851. " Milton St. John." Under the direction of the court, by consent, the jury returned a verdict for the plaintiff for four thousand four hundred and sixty- one dollars and ninety-eight cents, subject to the opinion of the court, on a case to be made, containing the objections of each party, and subject to liquidation, with leave to each party to turn the case into a bill of exceptions ; the case to be heard in the first instance at the general term, without additional security. J. Blunt, for the plaintiff. 1. There was no fraud set up or proved, or attempted to be proved, in procuring the execution of the policies. 2. Charles Noyes, the assured, had an indefinite interest in his own life, and might insure to any amount the company would agree to, and the insurance was valid so long as he held it undis- posed of, for the benefit of his representation. It is only when one person insures the life of another, that the question of interest in the life can arise. Reynolds on Life Ins. pp. 24, 27. The poli- cies in question were unquestionably good and valid in the hands of the assured, and in case of his death without assignment, would have been so in the hands of his executor or administrator. 3. The policies being good and valid in the hands of the as- sured, were assignable like any other chose in action. The stipu- lation in the policy runs to the assigns of the assured, and to re- strict its assignability would therefore be a violation of the express terms of the instrument. The equitable interest in a policy is as- NOVEMBER, 1853. 363 St. John 1). American Mutual Life Insurance Company. signable by the common law, and under the Code the privity of contract and right of action vests in the assignee. Blaynej' on Life Ass. 75. Reynolds on Life Ins. 161-158. Gf-odsal v. Webb, 2 Keene, Ch. 99. Code, § 111. The obligor is protected by the assignment in paying to the assignee, if the assignment be not a forgery. He is not at liberty to set up a want of consideration as between the assignor and assignee. The consideration expressed on the face of the assignment is enough for his purposes. And if it were otherwise, a counter obligation, such as the declaration of trust on the part of the assignee, and the money due to him, would be a sufficient consideration. 4. The wife has an insurable interest in the life of her hus- band. This right exists at the common law, independent of the statute of 1840. Read v. Royal Exchange Assurance Co. Peake's Additional Cases, 70. The statute of New York, above referred to, is not regarded as extending the right of effecting insurance, but merely as doing away with proof of the pecuniary interest in the assurances authorized by it. Reynolds on Life Insurance, pp. 52, 53. And it gives her the additional right of insuring in the name of any other person as her trustee. Had, therefore, tlie policies in question been original policies, taken by the plaintiff in his own name for the use and benefit of the wife, they would have been valid, and it is insisted that the equity of the statute extends to policies effected by the husband, and assigned to another person as her trustee ; a fortiori, the insurable interest of the wife in the life of her husband constitutes a good consideration for an assign- ment of the policies effected by him. A creditor may insure the life of his debtor, or may take an assignment of the policy effected by the debtor on his own life for security of his debt. In the for- mer case, if the debt be paid, the policy becomes void ; but in the latter case it reverts to the representatives of the assured. Ellis on Life & Fire Insurance, 124-126 ; Grodsall and others v. Bol- dero, 9 East, 72 ; Reynolds on Life Insurance, 54, 155. In the present case, therefore, if the wife had no insurable interest, and if the assignment did not bring her within the equity of the statute, and [supposing] the declarations of trust to be utterly null and void, all of which we deny, yet nevertheless the full amount in- sured is recoverable by the plaintiff, for the benefit of the repre- sentatives of the insured, all beyond the amount intended to be se- cured for himself. 364 SUPERIOR COURT OF NEW YORK. St. John V. American Mutual Life Insurance Company. 5. But the husband may insure his own life in his own name, and assign the policy for the benefit of his wife. Ubi supra. There is nothing in such an insurance or assignment in the nature of a gambling transaction or against public policy. On the con- trary, it was the original and legitimate purpose of life insurance to provide for the widows and orphans on the death of those on whose exertions while living they depended for support. Reynolds on Life Insurance, ch. 1. Ellis on Life & Fire Insurance, 99, part 2d, ch. 1, § 2. Independent of the Stat. 14 Geo. III. ch. 8, a wagering policy is void as against public policy ; Z/ord v. Dall, 1 2 Mass. 115, [ante, 154 ;] but no policy for the benefit of the widow or orphan of the life insured has ever been held invalid. That the equitable interest of any valid chose in action may be assigned ad libitum, when the rights of creditors are not interfered with, is a principle of so universal application as not to need support by ref- erence to authorities. 6. The assignment in the present case was for the benefit of the widow personally, not for the personal estate of the assured. As administratrix, therefore, she had no title or interest, and was not a proper party to the suit. Whether the widow or the credi- tors are entitled to the fund when collected, is a question between themselves with which the defendants have nothing to do. It is beheved to be easy to maintain, at the jjroper time, that the cred- itors have no right in law or equity to moneys which were never the property of the debtor. A creditor cannot compel his debtor to devote his current earnings, necessary for the comfortable sup- port of himself and family, to the payment of his debt. And if, by partial sacrifices of comfort and convenience in his lifetime, the debtor devotes a small portion of his current earnings to secure to his widow a support after his death, by way of insurance on his life, the creditor is not defrauded, and has no right to complain. It is on the debtor's property, not on his anticipated future earnings, that the credit is supposed in law to be given. 7. Interest is recoverable on default of payment of the insur- ance money at the time stipulated. Van Rensselaer v. Jewett, 2 Comst. 135. Reynolds on Life Insurance, 165-168. 8. The rate of interest is regulated by IJex loci contractus, which in the present case was clearly within the State of New York. 0. 0' Conor, for the defendant, contra. 1. Elizabeth G. Noyes, the widow of the assured, was the party NOVEMBER, 1853. 365 St. John V. American Mutual Life Insurance Company. solely interested in the suit on the policy No. 2499 ; and the suit on the other policy was, in part, prosecuted for her immediate benefit. She was, therefore, an incompetent witness. Code, §§ 398, 399, Voorhies' ed. 1853. 2. Even if the facts testified to by Mrs. Noyes were supplied in the testimony of Mr. Waterbury, the verdict should be ^et aside. But inasmuch as the papers are written by the plaintiff him- self, and were first brought to light after answer filed, Mr. Water- bury's testimony was insufficient to make them evidence in the cause. Walton v. Cronly, 14 Wend. 67. Farmers' and Manuf. Bank v. Whinfield, 24 Wend. 419. 3. In the absence of any sufficient evidence of a trust for Mrs. Noyes, the whole interest in policy 2499, and the chief interest in the other policy, were in the personal representative of Charles Noyes. She should have sued alone on the former, and should have been a co-plaintiff in the suit of the latter. Code, §§ 111, 113, Voorhies' ed. 1853. 4. The contracts were made in Connecticut by a corporation created under the laws of and locally situated in Connecticut ; and consequently the law of Connecticut must govern the case. 5. Interest is not recoverable at the common law. It is a sub- ject of statute regulation ; and no statute of Connecticut having been proved, the plaintiff was not entitled to recover interest. At the close of the argument it was admitted that the legal rate of interest in Connecticut was 6 per cent, per annum. DuEE, J. We are entirely satisfied that the testimony of Mrs. Noyes ought not to have been admitted. Although not a party on the record, she was a party in interest, and, under the construc- tion which we have heretofore given to § 399 of the Code, was in- competent, as a person " for whose immediate benefit the suit was prosecuted." CatUn v. Hansen, 1 Duer Sup. C. R. 310. She was a sole cestui que trust, having an immediate right, if not to the whole, yet to a definite portion (f 3,500) of the sum that was sought to be recovered. But although she was improperly admitted as a witness, it by no means follows that for this reason there must be a new trial. The verdict was taken by consent, subject to the opinion of the court upon the whole case ; and if, rejecting her testimony, there is suf- ficient evidence to sustain it, the plaintiff must still be entitled to our judgment. If we strike out her testimony entirely, as we 366 SUPERIOR COURT OF NEW YORK. St. John V. American Mutual Life Insurance Company. must do if this case shall be turned into a bill of exceptions, we are clearly of the opinion that, upon the proofs that remain, the plaintiff was entitled to a verdict, and that it was the duty of the judge who tried the cause so to have charged the jury. We exceedingly doubt whether any evidence of the right of the plaintiff to maintain the action in his own name was necessary to be given, other than the assignments indorsed upon the policies. The argument on the part of the defendants was that the interest on which the insurances were originally founded, that of Charles Noyes, the assured, in his own life, was certainly extinguished hy his assignment of the policies, which, consequently, from that time became void as merely wager policies, unless the plaintiff had him- self an insurable interest, which was sufficient in law to sustain them. It was conceded that if the plaintiff had such an interest in the life of Noyes as would have enabled him to make the insur- ance in his own name, and for his own benefit, he might, for the protection of his interest, well become the owner of the subsisting policies by virtue of an assignment, and as such assignee be enti- tled to maintain an action in his own name for the recovery of the loss. It was the existence of such an interest that was alone de- nied. It is manifest that the objection rests wholly on the assumption that a wager policy is illegal and void. Such undoubtedly is now the law in this state, by force of certain new provisions in the re- vised statutes, (1 R. S. p. 662, §§ 8, 10,) and such is also the law in England, by force of a special act " for regulating insurance upon lives," which by express words prohibits such insurances, " except when the persons insuring have an interest in the life or death of the person insured." 14 Geo. III. c. 48. There is, however, no evidence before us that such is, or ever has been, the law in Connecticut ; and in this state, as well as in England, it has been frequently decided that at common law a wager policy, as a contract, is just as binding upon the insurer as a policy upon inter- est. As the case now stands, we do not know that we have any right to say that in this respect the rules of the common law have been altered in Connecticut ; and it is by the law of Connecticut that the legal construction and effect of the policies in suit are ex- clusively governed. This was admitted, and indeed insisted on by the counsel for the defendants upon the argument, and is not. at all doubted by our- selves. NOVEMBER, 1853. 367 St. John V. American Mutual Life Insurance Company. It is not necessary, however, nor do we deem it expedient to place our decision upon this ground. In delivering our judgment we shall assume that when the insurance is upon the life of a third person, an insurable interest in the person for whose benefit the policy was effected, or is held, is just as necessary to be proved by the law of Connecticut, in order to warrant the recovery of a loss, as by the law of this state. The plaintiff claims to recover, partly on his own account, but chiefly as the trustee of the widow of the deceased, and the ques- tion of his right to maintain the action, as such trustee, will be first considered. That a wife has an insurable interest in the life of her husband is quite certain. It is not denied, and it is needless to cite authori- ties to prove that a policy effected by him upon his own life, for her benefit, is a valid contract, nor that a subsisting policy upon his own life, held by him, may be assigned to a trustee for her benefit. In both these cases, if the husband die during the term covered by the policy, the sum insured, in law or in equity, belongs to the wife, and may be recovered by a suit either in her own name, or, where the trust is express, in that of her trustee. None of these positions ai-e disputed. The only questions that have been raised on this branch of the case relate to the sufficiency of the evidence to prove the interest of Mrs. Noyes, and the right of the plaintiff to maintain the action as her trustee, and if the declarations of trust executed by him were properly admitted in evidence, it is not de- nied that these questions are determined, and his right to a judg- ment for the whole amount, which the trust as declared embraces, fully established. Of the interest of Mrs. Noyes in one of the policies. No. 2499, there is conclusive proof, independent of the declaration of trust in relation to it. It appears by an entry in the registry of the com- pany made at the time this policy was issued, that the insurance was effected by her Husband for her benefit. She was, therefore, the equitable owner of this policy as soon as it was issued, and it was delivered to the husband, and held by him merely as her trus- tee. It is manifest, however, that upon this proof alone the plain- tiff would not be entitled to recover. On the contrary, as showing Mrs. Noyes to be the real party in interest, she would be a neces- sary party to the action. Her interest in the other policy is shown only by the declaration of trust which relates to it, and both the 368 SUPERIOR COURT OF NEW YORK. St. John V. American Mutual Life Insurance Company. __ V declarations were necessary to be proved to show the title of the plaintijSF to prosecute the suit alone, as trustee of an express trust. In our opinion, all the proof of the due execution of these im- portant papers, which the law requires, was given, and this proof, which [isj uncontradicted, was conclusive. The testimony of Mr. Waterbury is positive that both the papers are in the handwriting of the plaintiff, and that they came into his possession from the hands of Mrs. Noyes, although not delivered to him until after the commencement of the stiit. As there was no subscribing witness to either of the papers, this evidence was sufficient to prove them to be genuine, and proof that they were so was all that, in the first instance, could be justly demanded. It was enough to authorize them to be read in evidence. Upon the trial the counsel for the defendants objected to their reception as evidence, upon the grounds, first, that they were the evidence of the plaintiff, and second, that there was no evidence of their existence previous to the commencement of the suit. We are persuaded that neither of the objections is tenable. The first, which we find it difficult to understand, was, in effect, abandoned upon the argument before us. If the meaning is that these decla- rations of trust were made by the plaintifi^ with a view to his own benefit, and therefore to be rejected on the same ground as the oral declarations of a party in his own favor, the truth is directly the reverse. His title to both the policies, upon the, face of the assignments made to him, was unqualified and absolute, while the effect of the declaration of trust was to show that nearly the whole beneficial interest was vested in another. The papers were not his evidence in the sense of the objection, but the evidence of the cestui que trust, Mrs. Noyes, who, as the person for whose imme- diate benefit the suit was prosecuted, had the right to insist upon their production. Another short answer to the objection is, that in all cases where the suit is brought by the trustee of an express trust, his declaration of the trust, whether oral or written, is nec- essary to be proved in order to maintain the action, and hence to reject the evidence is, in effect, to hold that such an action cannot be maintained at all. Such a decision would be a virtual repefa of the provision in the Code by which the action is given. To the second objection that there was no evidence that the declarations of trust were in existence previous to the commence- ment of the suit, the reply is that no such evidence was necessary NOVEMBER, 1853. 369 St. John V. American Mutual Life Insurance Company. to be given ; nor, judging from our own experience, and the uni- form practice in this court, can we beheve that in similar casps such evidence has ever been required. The rule we apprehend to be well established that, when an instrument in writing, to which there is no subscribing witness, is shown to have come from the possession df the party who, according to its terms, has a right to the custody, nothing more is required to be proved to entitle it to be read in evidence, than the handwriting of the person by whom it purports to have been executed. It is then presumed that the execution and delivery of the instrument corresponded in time with its actual date, and although this presumption may be repelled by opposite evidence, unless so repelled it is conclusive. The declarations of trust in this case were the proper evidence of the title of Mrs. Noyes as the cestui que trust. She was there- fore entitled to their possession, and the circumstance that they were not delivered by her to Mr. Waterbury until after the com- mencement of this suit, was too unimportant to justify a suspicion of an execution and delivery subsequent to their date. We have found nothing in the cases to which we were referred in the argu- ment at all inconsistent with the views that we have expressed. In the first of these cases, (^Walton v. Oronly, 14 Wendell, 67,) it is expressly stated that the paper which was excluded was executed during the tri^l. The bearing of the second case (Farmers' and Manuf. Bank v. Whinfield, 24 Wend. 420) upon the question we are considering, has escaped our discovery. The declarations of trust being properly in evidence, the neces- sary consequences are that the plaintiff, as trustee of an express trust, was entitled to bring the action in his own name, and is enti- tled to recover for Mrs. Noyes, as the cestui que trust, the whole sum which, by the terms of the declarations, he agreed to pay her when received from the defendants, — that is, the full sum insured by pohcy 2499, and $1,500 of the 12,000 covered by the other policy. The only question, therefore, that remains is, whether he is not also entitled to recover for his own benefit the balance of $500, claimed to be due on the last mentioned policy ; and that he is so entitled we have no difficulty in holding. It is a mistake to suppose that the assignment of a policy upon life varies in any respect the nature of the original contract, or can operate to discharge the insurer from any part of the obliga- tion which the terms of the contract impose. By the terms of this 21 370 SUPERIOR COURT OF NEW YORK. St. John V. American Mutaal Life Insurance Company. policy the defendant agreed to pay tlie sum insured to the execu- tors, administrators, or assigns of the assured, within a certain time after due notice and proof of his death ; and we apprehend that where such notice and proof have been given, and the assignment is valid as between the parties, the right of an assignee to demand and enforce the stipulated payment is no more liable to doubt or dispute than that of an executo/ or administrator. The objection to the recovery in this case assumes, and such was the argument, that there can be no absolute sale of a subsisting policy, and that its assignment is only valid when made as a collat- eral security for an antecedent debt ; but as we understand the law, a written promise to pay a sum of money is just as properly a subject of transfer for value, where it depends upon a condition, as where it is absolute, and we can therefore make no distinction be- tween the rights of a bona fide assignee of a policy and those of an assignee of a mortgage. This seemed to us upon the argument very clear upon principle, and we have since found that it is equally so upon authority. The case of Ashley v. Ashley, 3 Simons, 149, which was not referred to upon the argument, and which Chancel- lor Kent cites and approves, (3 Kent's Com. 370, note,} is a posi- tive decision upon the exact question, in correspondence with the views we have expressed. In this case the sum insured upon the life of the person effecting the policy was £1,000 sterling. He assigned the policy for a small but valuable consideration to one Heath, whose executors sold the policy to General Ashley for £320. Ashley also died ; and in a suit in equity between his widow and his executors, an order was made that the policy should be sold by a master for the benefit of the estate. It was sold accordingly ; but the purchaser refusing to accept the title offered, the case was before the court upon a petition to compel him. The objections to the title urged by his counsel were, that the assignment to the first assignee being for a consideration so trifling as to be merely nominal, was wholly void ; or if valid, that the purchaser, instead of the full sum in- sured, would only be entitled to recover the amount paid by the assignee. The vice-chancellor overruled the objections, holding that the provision in the act of parliament prohibiting insurances by persons having no interest in the life insured, had no application to the assignment of a subsisting policy, but that the assignee in good faith, of a policy upon life, which was good when effected, is NOVEMBER, 1853. 371 St. John V. American Mutual Life Insurance pompany. entitled in all cases to demand payment of the whole sum in- sured. This case, therefore, proves not only that the absolute- sale of a life policy does not affect the validity of the contract, but that the assignee, for value, in the event of the death of the assured, is en- titled to the same remedies as his personal representatives, when the title to the policy is unchanged. It thus furnishes a full answer to the argument, that the recovery of the plaintiff upon his own account, if he is permitted to recover at all, ought to be limited to the sum which he advanced. Had there been no trust, he would have been entitled to recover for his own benefit, without any de- duction, the sum insured. It is further to be observed that an in- surance upon life, in the language of Mr. Justice Park, from its nature, admits no distinction between total and partial losses ; but when a loss happens, binds the insurer to pay, according to the terms of his agreement, the full sum insured. 2 Park on Insur- ance, Hildyard ed. p. 493. In other words, the interest of the assured, in every such policy, is valued at the sum insured, and by this valuation, as in a marine policy, both the parties are bound. Hence it has never been doubted that a person may insure his own life in as many policies, and for any amount he may deem proper, so as to entitle his representatives to recover the full sum insured in each policy without any other proof of their loss than that of his death. The contract is still a contract of indemnity, but the only measure of the indemnity promised is that which the policy furnishes. It is true that in England a creditor who insures the life of his debtor, can recover no more than the amount of his debt, what- ever may be the sum insured ; but this exception to the general rule is created by a special provision in the act of parliament to which we have before referred, and is, as we have seen, not con- #strued to extend to the assignment of a policy effected by the debtor. 14 Geo. III. cap. 48, Ashley v. Ashley. There must be judgment for the plaintiff upon the verdict ; but the rate of inter- est being governed by the law of Connecticut, must be reduced to six per cent. Judgment accordingly. Affirmed in die court of appeals. See infra. 372 COURT OF APPEALS OF NEW YORK. St. John V. American Mutual Life Insurance Company. St. John vs. The Amekican Mutual Life Insurance Com- pany. (13 N. T. (8 Kern.) 31. Court of Appeals, September, 1855.) Amgrmient. — A policy of life insurance may be legally assigned. Insurable interest. — The assignee of a life policy need not prove an insurable interest in the life of the assured, if the policy were valicPin its inception. The facts are fully stated in the report of the case from the superior court, supra. F. Kernan, for appellant. Insurable interest necessary. 3 Kent Com. 1st ed. 368, 369 ; 7th ed. 441, 442. Angell on Fire & Life Insurance, §§ 55-59, 295-306. 1 R. S. 662, §§ 8, 10. Godsall v. Boldero, 9 East, 72. The contracts, if made here, being void, the plaintiff was bound to show that they were made elsewhere, and in a state where such wagers are valid. Thatcher v, Morris, 1 Kern. 437. A. L. Jordan, for respondent. Insurable interest. Reynolds on Life Ins. 24, 27. Meed v. Boyal Ex. Ass. Co. Peake's Add. Cas. 70. Assignment. Ashley y. Ashley, ?> ^\m. Ch.\5(i,lbl. Blayney on Life Ass. 75. Reynolds on Life Ins. 151-153. 1 How. "390. aodsal V. Webb, 2 Keene Ch. 99. Code, § 111. Ellis on Life & Fire Ins. 124-126. Godsall v. Boldero, 9 East, 72. Reyn. on Life Ins. 54, 155. The insured may assign the policy for the benefit of his wife. Reyn. on Life Ins. ch. 1. Ellis on Life & Fire Ins. 99, part 2, ch. 1, § 2. No policy for the benefit of a widow or orphan has ever been held invalid ; and the equitable interest of any valid chose in action may be assigned ad libitum. Crippen, J. An insurance upon the life of an individual is a^ contract by which the insurer, for a certain sum of money or pre- mium proportioned to the age, health, profession, and other circum- stances of the person whose life is insured, engages that if such person shall die within the period limited in the policy, the insurer shall pay the sum specified in the policy, according to- the terms thereof, to the person in whose favor such policy is granted. The' risk of the insurer is the death of the person whose life is the ob- ject of the security. SEPTEMBER, 1855. 373 St. John V. American Matoal Life Insurance Company. Although the promise in this case is to pay to Mr. Noyes, his heirs, &c., yet it is manifest, from the conditions of the contract and the nature of the transaction, that no payment could be made to him, because nothing would become due or payable until after his death, consequently the promise of the company must necessarily be fulfilled with the executors, administrators, or assigns of the assured, and not with him. By the terms of each of the assign- ments, the assured, Noyes, absolutely sold; assigned, and transferred each of said policies of insurance to the plaintiff. It seems to me it cannot be doubted, but that the assured might legally assign the policies to the plaintiff. It has been said, that without the right to assign, insurances on lives lose half their use- fulness. 1 Bell's Commentaries, 645. The company, by the ex- press terms of each of the policies, agreed to pay the sum of f 2,000 to Charles Noyes, his heirs, executors, administrators, or assigns ; another part of the policies provides for giving notice to the com- pany in case an assignment shall be made by the assured. I am not aware of any principle of law that distinguishes con- tracts of insurance upon lives from other ordinary contracts, or that takes them out of the operation of the same legal rules which are applied to and govern such contracts. Policies of insurance are choses in action ; they are governed by the same principles appli- cable to other agreements involving pecuniary obligations. The testimony given on the trial proved a lawful and valid sale, transfer, and assignment of the policies in question by Mr. Noyes, the as- sured, to the plaintiff. So far as regards the question of the liability of the company, it is not material whether the plaintiff paid a full consideration upon such transfer or not. Such liability in no manner depends upon the amount of consideration of the assignments. The assignments on their face show a sufficient consideration to render them valid in the hands of the assignee as against the company. On the death of Mr. Noyes, if he died within the period limited by the policies, the company agreed to pay the amount of the insurance. It can- not be material, neither does it affect the extent of the liability of the company, whether the money is due and payable to the legal representatives of the assured or to his assignee. It follows, from this view of the case, that the proof allowed on the trial of the trust agreements made by the plaintiff, by which he is liable to account and pay over to the widow of M". Noyes a 374 COURT OF APPEALS OF NEW YORK. St. John V. American Mutual Life Insurance Company. large portion of the money, on receiving the same of the company on the pohcies, did not and could not legally affect the right of the plaintiff to recover in the action, or the amount of such recovery. If that proof is entirely stricken out of the case, the plaintiff, in my opinion, is still entitled to recover the whole amount of the insur- ance in this action. I do not agree -with the counsel of the defendant, that the as- signee must have an insurable interest in the life of the assured, in order to entitle him to recover the amount of insurance. If the policies were valid in their inception, the assignment of them to the plaintiff did not change the liability of the company. The case of Ashley v. Ashley, 3 Simons, 149, is a direct authority to this point. It is referred to and approved in Kent's Com. 369, note. The policy in the case ot Ashley v. Ashley was issued for £1,000. It was afterwards assigned by the person effecting it, for a small but valuable consideration, to one Heath, whose executors sold and assigned it to General Ashley for £320. After the death of Gen- eral Ashley, in an action between his widow and his executors, a decree was made that the policy should be sold for the benefit of the estate ; it was sold accordingly ; the purchaser, after the sale, declined to accept the pohcy on account of a defect of title, on the ground that the assignment to the first assignee was made for a mere nominal consideration, which rendered the transfer invalid ; or if not so, the purchaser could only recover the amount paid by the assignee. The court, however, held the objection not well taken, expressly deciding that an assignee, in good faith of an ex- isting life policy which was vahd when effected, is entitled in all cases to demand and require payment of the whole sum insured. It seems to me that this decision is supported by reason and sound judgment. The point made by the defendant's counsel, that a creditor has only an insurable interest in the life of his debtor to the amount of his debt, has no application to this case. The whole proof shows that Mr. Noyes effected the insurance upon his own life; it was not done by the plaintiff; he had no agency in procuring the policies to be issued ; neither does it ap- pear that the assured was even indebted to the plaintiff at that time. In conclusion, my opinion is that the judgment should be affirmed. JANUARY, 1854. 375 Miller v. Eagle Life and Health Insurance Company. All the judges concurred in the foregoing opinion. Judgment affirmed. As to insurable interest, see Lord v. Dall, ante, 154, and note. Assignment. Pomeroy v. Manhattan Life Ins. Co. ante, 96. GuRDON Miller vs. The Eagle Life and Health Insurance Company. (2 E. D. Smith, 268. New York Court of Common Pleas, January, 1854.) Insuraile interest need not be shown to the office before the comuieiicement of tlie action where no such preliminary proof is required by the policy. The right of action of the insured is complete when he has complied with the conditions of the policy ; but he commences his action at the peril of being defeated, if it appears at the trial that the policy was a mere wager. i Proof of death. — An insurance company may waive defects in the preliminary proofs, and may, if they please, dispense with them altogether; and where they place their refusal to pay upon a ground distinct from that of full notice and proof of death, they are deemed to waive any further compliance with the condition as to such notice and proof. And the company cannot, two months afterwards, and just before suit is brought, and without any pretence that thej' had been deceived or mistaken, change their ground and insist on better proof of death. Preliminary proofs. Law and fact. — The sufficiency of preliminary proofs, and what amounts to waiver are questions of law ; but whether such proofs were furnished to the oflBce and whether the acts were done which constitute a waiver, are questions of fact. /nsurabte interest. — At common law wager policies are valid. And under the statute, a contingent and uncertain interest in the life assured, whether in the end it may prove more or less productive, is sufficient basis for a life policy. And it matters not that the inter- est, having relation only to services and earnings, the proceeds whereof were to be equally divided with another, was an interest held jointly and as partnership property; the policy is still a valued policy, and the sum insured is the measure of damages. On the 23d of May, 1849, the plahitiff and one Ralph H. Miller entered into a written agreement, of which the following is a copy : " This agreement, made this twenty-third day of May, 1849, witnesseth, that Ralph H. Miller, of the town of Waterford, and State of Connecticut, being on the eve of departure for San Fran- cisco, California, and wanting funds to pay his way there, Gurdon Miller, of the city of Brooklyn, having advanced the necessary funds for outfit and all other needful purposes, it is hereby agreed, by and between the said Ralph H. Miller and the said Gurdon Miller, that the net profits arising from the enterprise now about being commenced shall be equally divided between them, share and share alike. " It is further agreed and understood, that this agreement is in- tended to cover the space of two years from this date, and to en> 376 COURT OF COMMON PLEAS, NEW YORK. Miller ». Eagle Life and Health Insurance Company. title the said Gurdori Miller to one half the profits on goods taken out, or hereafter to be sent out ; and also one half of all profits to arise from gold diggings and any other employment or business which the said Ralph H. Miller shall engage in, for the above named period of two years. Witness our hands and seals," &c. The plaintiff advanced to Ralph H. Miller money to an amount considerably exceeding one thousand dollars for his outfit and for merchandise. * On the day the agreement was signed, the defendants, an insur- ance company incorporated in the State of New Jersey, and having an agency in the city of New York, issued a policy whereby, after reciting that the plaintiff had applied for insurance upon the life of R. H. Miller, and had paid $39 as the premium for one year, the defendants agreed with the plaintiff to pay him $1,000 " within sixty days after due notice and proof of the death of said Ralph,", with conditions that if the latter should die upon the seas, or pass, without the company's consent, beyond certain limits, enter into any naval or military service, die in or by reason of the violation of any law, or if any misrepresentations had been made in the application for the insurance, then, in either of those events, the policy should be void ; otherwise to continue three years, upon payment of the premiums. . The plaintiff paid the first year's premium ; and a consent having been indorsed on the policy, R. H. Miller went forthwith to Cali- fornia, where he died of an ordinary disease in the autumn of the same year. The plaintiff, in April, 1850, received intelligence of the death, and the next day gave a written notice thereof to the company. On the 16th of May he inclosed to them an affidavit of W. C. Strobridge to the effect that the latter had received a letter from J. M. Strobridge, the deponent's brother, written and dated at different times, and stating under a particular date the death of a young man by the name of Ralph Miller, of Connecticut, who had accompanied the writer to the mines, and the letter requested the communication of a message to his mother. To this affidavit the plaintiff attached his own, deposing that R. H. M. started from New York with Strobridge, and was the identical person mentioned by the latter, adding that his, plaintiff's " interest in the life and services of the said R. H. M. was for two years from May 23, 1849." JANUARY, 1854. 377 Miller v. Eagle Life and Health Insurance Company. The company's agent in New York replied in writing, under date of May 18 : " We received your affidavit, and that of Mr. Strobridge, respecting death of R. H. Miller. You have omitted to furnish a statement of the interest in the life. Please furnish that with particulars, and as soon as received I will lay the papers before the board for their action," The plaintiff then sent to the company a copy of the agreement with R. H. Miller. In a letter acknowledging its receipt, the agent wrote : " This document only shows the agreement you had with R. H. Miller. What we require is, to know what amount you advanced under this agreement, and what amount, if any, has been returned to you, or if there is anything expected, or, in other words, we want a statement of R. H. Miller's indebtedness to you. As soon as you furnish these papers we will lay them before the board or the committee on claims and losses, and have them acted on as promptly as possible." An additional affidavit was thereupon made by the plaintiff, stating that when Ralph sailed he furnished him with an invoice amount exceeding fl,000 of specie and merchandise, and after- wards sent upwards of $200 in value more ; that nothing had been returned or realized, and no account of sales or proceeds received ; and that, in his opinion, he had lost, in the services, earnings, and profits of R. H. M. upwards of $1,000. The plaintiff sent this affi- davit to the agency in a letter expressing his surprise at the delay in payment, and explaining that it was not his intention to ac- knowledge the company's right to limit their liability to the amount of advances if the latter had been less than the amount of the policy. The agent answered, insisting that the plaintiff must furnish " a particular statement of interest at the time of death of party in- sured," and illustrating at length his position that the plaintiff's recovery must be limited to his pecuniary interest in the life of the decedent at the time of the death, without regard to the amount named in the policy. The correspondence was closed by a letter from the plaintiff, dated June 4th. This action was brought upon the policy July 22d. The defendants interposed a demurrer to the complaint, which was not sustained, as appears by the following opinion delivered at special term : 378 COURT OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. " The defendants demur to the complaint : 1. Because there was not due proof of death furnished to the company. Whether the proof was suiEcient or not, if it had been objected to, is not a material question in this cause. The plaintiff sets out the pre- liminary proof he furnished to the defendants, and alleges that the company have given no notice that further proof was required, and that more than sixty days had expired before suit, and before demand of payment. The prot)f required is not strict proof, but the best the insured can obtain. 3 J. C. 224. 4 J. R. 131. Un- less the insurer object to the preliminary proofs on the ground of their insufficiency, they will be considered sufficient. 25 Wend. 379. 16 Ibid. 385. 23 Ibid. 525. This rule is, I think, applica- ble to this case, and as the defendants by their demurrer admit that no objection was made to the proof, it is now too late to make it. " 2. The complaint avers that sixty days had expired before de- mand of payment on the company, which is admitted by the de- murrer. " 3. The demurrer objects that it does not appear that the plain- tiff had an insurable interest in the life of the person insured. The affidavits served on the company show an insurable interest. The plaintiff agreed to advance money and goods to the deceased, and the affidavits show that he had advanced an outfit. How it was to be paid is not material to the question. The plaintiff alleges that his interest in the life of the deceased exceeded $1,000. How much his interest was, is not the question ; but had he any interest in the life of the deceased ? The advance of an outfit, which has not been repaid, was such an interest. The advance of specie was likewise. Both items show an insurable interest, free from the objection of a partnership, profits, or wagering policy, which the defendants make to the plaintiff's claim. " Upon all these points the defendants, in their answer, can take issue ; but I think the complaint shows a good cause of action against the defendants, and that the demurrer is not well taken." The defendants having leave to answer, took issue upon all the material facts in the case. The cause was tried before Daly, J., and a jury. The facts and correspondence above related were put in evidence, and it was proved that the letter received by W. C. Strobridge from his brother, was written as represented in the affidavit used in the pre- liminary proofs. JANUARY, 1854. 379 Miller v. Eagle Life and Health Insurance Company. When the plaintiff rested, the defendants moved to dismiss the complaint on the grounds : 1st. That proper and sufficient preliminary proof of the death of Ralph Hurlburt Miller was not made or furnished to the defend- ants before the commencement of this action, said action being prematurely brought. 2d. That proper reasonable and sufficient preliminary proof of the plaintiff's actual pecuniary interest in the life of Ralph Hurl- burt Miller was not made or furnished to the defendants before the commencement of this action, said action being prematurely brought for that reason. 3d. That the plaintiff's interest in the life of Ralph H. Miller, as appears by the preliminary proof furnished to the defendants, was one half of the net profits arising from the sale of goods, from gold diggings, or otherwise. That no such profits have been shown, either by said preliminary proof or on this trial, to have been made. 4th. That Gurdon Miller had no insurable interest in the life of Ralph H. Miller at the time the policy here in question was issued, nor at the time of his death. That no subsequent circumstances could make that a good policy which was at first void. That profits are not an insurable interest, or if they are they should have been specially insured as such. ' 5th. That this was a wagering policy, and therefore void. 6th. That no such proof of interest has been shown as will en- title the plaintiff to recover. The judge denied the motion, saying, in respect to the first point, that the defendants, having received the letter without objection, or without demanding any further proof of the death of Ralph H. Miller, had waived all objections on that ground to the sufficiency of the preliminary proof. The defendants excepted. The defendants then called their general agent for New York, who testified that in July, 1850, before the commencement of this suit, the witness told the plaintiff, upon the latter calling to de- mand payment, that there was no sufficient proof of the death, and that this insufficiency was discovered by the witness upon looking at the papers after the plaintiff wrote to close the corre- spondence. This testimony was corroborated by a witness, who testified that at the interview in question the agent objected to the 380 COURT OF COMMON PLEAS, NEW YORK. Miller ». Eagle Life and Health Insurance Company. character of the proof both of death and interest ; but another wit- ness testified that he had heard the whole conversation, and that no objection was made to the evidence of the death. The judge submitted to the jury, as questions of fact to be de- termined by them, 1. Whether further preliminary proof of the death of R. H. Miller had been required by the defendants; 2. Whether the defendants had not waived any further preliminary proof of the death of R. H. Miller. The court instructed the jury that if either of the questions were decided in the defendants' favor the action had been prematurely brought, and they were entitled to a verdict ; and that if, on the contrary, the jury found for the plaintiff, he would be entitled to recover the whole amount men- tioned in the policy. The defendants excepted, insisting that the question of waiver above stated was, upon the proofs, a question of law. for the deter- mination of the court, and that the plaintiff's recovery, if any, should be limited to the amount of his actual pecuniary interest in the life of R. H. Miller. The jui-y returned a verdict in favor of the plaintiff for the amount stated in the policy, and interest. The defendants moved, at special term, upon a case made, for a new trial. By consent an order was entered, pro forma, denying the motion for a new trial ; and from that order the defendants ap- pealed to the general term, where the order denying the motion for a new trial was affirmed. Subsequently, on appeal from the final judgment at special term, such judgment was also affirmed. The opinion of the general term, delivered by Woodruff, J., on the ap- peal fi-om the order denying a new trial, was adopted as the opinion of the court on affirming the judgment. Robert 0. Umhree ^ Walter Rutherford, for the defendants. 1. The complaint should have been dismissed at the close of the plaintiff's case. Because, (1st.) The plaintiff did not show affirmatively that proper, rea- sonable, and sufficient preliminary proof of the death of Ralph H. Miller was made or furnished to the defendants before the com- mencement of this action. Columbian Insurance Company v. Lawrence, 2 Peters, 48-51, 53. Murdoch v. Chenango Insurance Company, 2 Comst. 216, 222, and cases c'ted. (2d.) The plaintiff did not show affirmatively that proper, rea- sonable, and sufficient preliminary proof of his interest in the life of JANUARY, 1854. 381 Miller ». Eagle Life and Health Insurance Company. Ralph H. Miller was made or furnished to the defendants before the commencement of this action. Columbian Insurance Company V. Lawrence, 2 Peters, 48-51, 53. Murdoek v. Chenango In- surance Company, 2 Comst. 216, 222, and cases cited. Lynch V. Balzell, 4 Brown's P. C. 431. Niblo v. North American In- surance Company, 1 Sandf. 556. 3 Kent, 367. Prichet v. In- surance Company of North America, 3 Yeates, 458. Alsop v. The Commercial Insurance Company, 1 Sumner, 467. Abbott v. Sebor, 3 Johns. Cas. 49. Hodgson v. Clover, 6 East, 316. Kent V. Bird, Cowp. 583. Forbes v. A.spinall, 13 East, 322. (3d.) The plaintiff, by the papers furnished by him as prelimi- nary proof to the defendants, seeks or attempts to show that his in- terest in the life of Ralph was to one half of the net profits arising from the sale of goods, from proceeds of gold digging or otherwise ; which interest (if any) was not insured by the policy sued on. And further, such proofs do not show any such profits to have ac- crued, but to the contrary, so that Ralph was at no time his debtor, so as to give the plaintiff an interest under the policy. Columbian Insurance Company v. Lawrence, 2 Peters, 47-50. Craves v. Boston Marine Insurance Company, 2 Cranch, 440. Murdoch v. Chenango Insurance Company, 2 Comst. 217, 222. Alsop v. The Commercial Insurance Company, 1 Sumner, 467. Niblo v. North American Insurance Company, 1 Sandf. 556, 557. Kent v. Bird, Cowp. 583. (4th.) The plaintiff had no insurable interest in the life of Ralph at the time the policy was issued, nor at the time of his death. No after circumstances could make that a good policy which was at first void. Columbian Insurance Company v. Lawrence, 2 Peters, 47-50. Craves v. Boston Marine Insurance Company, 2 Cranch, 440. 1 Rev. Stat. 3d ed. 662. 3 Kent, 367. Prichet v. Insur- ance Company of North America, 3 Yeates, 458. Alsop v. The Commercial Insurance Company, 1 Sumner, 467. (5th.) Profits must be specially insured as profits. Niblo v. North American Insurance Company, 1 Sandf. 567, and cases cited. 1 Phillips on Insurance, 122, 191. Tom v. Smith, 3 Caines, 249. No case is reported where profits were recovered without having been specially insured. (6th.) This was a wagering policy, and therefore void ; the re- lation of debtor and creditor not existing between the plaintiff and Ralph at the time of issuing the policy or at any other time. 382 COURT OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. 1 Rev. Stat. 3d ed. 662. Duer on Insurance, 92, 94, 95. AUop V. The Commercial Insurance Company, 1 Sumner, 465, and cases cited. Amory v. Grilman, 2 Mass. 1. 8 Kent, 367. Marshall on Insurance, 80. 2. The judge erred in denying the motion to dismiss the com- plaint on the close of the plaintiff's case, on the ground that " the defendants, having received the letters without objection, or with- out demanding any further proof of the death of Ralph H. Miller, had waived all objections on that ground to the sufficiency of the preliminary proof." Because, (1st.} There is no principle, usage, or rule requiring such objec- tion to be made. The plaintiff must furnish good legal evidence as preliminary proof. Columbian Insurance Company v. Lawrence, 2 Peters, 53, 54, 57. (2d.) Where there are two objections or two different points of evidence for consideration, (as in this case, death and interest,) and the insurers are engaged in the consideration of one point, it is no waiver of further proof on the other point that the objection thereto is not raised until after the proof is made satisfactory in the first. Colwnhian Insurance Company v. Lawrence, 2 Peters, 50, 53. 3. The plaintiff in this trial has not shown any such interest in the life of Ralph H. Miller as will entitle him to recover ; the plaintiff intending to insure services, earnings, profits, and gains under the partnership agreement which was unknown to the de- fendants ; and the defendants insuring only his actual pecuniary interests as a creditor. There was no contract. See Agreement and Affidavit ; Columbian Insurance Company v. Lawrence, 2 Peters, 47-50 ; Graves v. Boston Marine Insurance. Company, 2 Cranch, 440 ; 1 Rev. Stat. 3d ed. 662 ; Duer on Insurance, 92, 94, 95 ; no contract, p. 67 ; 3 Kent, 367 ; Alsop v. The Commer- cial Insurance Company, 1 Sumner, 467 ; Niblo v. North Amer- ican Fire Insurance Company, 1 Sandf. 557. 4. The judge erred in submitting to the jury, for them to pass upon, the question, " whether the defendants had not waived any further preliminary proof of the death of Ralph H. Miller." The question of waiver was one for the judge to decide under the cir- cumstances and evidence, and with which the jury had nothing to do. That question, being as to the competency of evidence, was a question of law to be decided by the court. Graham's Practice, JANUARY, 1854. 383 Miller v. Eagle Life and Health Insurance Company. 2d ed. 290. Columbian Insuranoe Company v. Lawrenee, 2 Peters, 52, 54. 5. The judge erred in charging the jury " that the plaintiflF is entitled to recover, if at ail, the whole amount, as stated in the policj' ; " because the policy is not valued as claimed by the plain- tiff, and in effect charged by the judge; and the proofs do not show, of all the money and goods furnished to Ralph by the plain- tiff under their partnership agreement, a disposition in any way of more than eighty dollars paid for passage money. The balance, both of money and goods, is not accounted for. 3 Kent, 367, and notes. 1 Rev. Stat. 3d ed. 662. Duer on Ins. 92, 93, 95. Pritchet V. Insurance Company of North America, 3 Yeates, 458. Grod- sall V. Boldero, 9 East; 81. Bainbridge v Neilson, 10 East, 344. Tunno v. Udwarde, 12 East, 493. Lynch v. Balzell, 4 Brown, P. C. 431. Sadlers' Company v. Badooeh ^ others, 2 Atk. 554, (May 9, 1743.) Alsop v. The Commercial Insurance Company, 1 • Sumner, 467. Tyler v. ^tna Insurance Company, 12 Wend. 513. Abbott V. Sebor, 3 Johns. Cas. 39. Laurentw. Chatham In- surance Company, 1 Hall, 45, 47, 48. Hodgson v. Cflover 6 East, 3L6. Kent v. Bird, 2 Cowp. 583. Forbes v. Aspinall, 13 East, 322. 6. The verdict of the jury, under the charge of the judge, was clearly contrary to evidence ; because, (1st.) They found for the plaintiff upon the principal question presented to them for their consideration, namely, " whether further preliminary proof of the death of Ralph H. Miller was required by the defendants?" Whereas Joseph W. Savage, a witness on the part of the defend ants, and their general agent at the time, swears positively that he did require further preliminary proof of Ralph's death ; and William S. Slocum, defendants' book-keeper, swears positively that he heard Mr. Savage notify the plaintiff that his proofs were insufficient. Both Mr. Savage and Mr. Slocum are unimpeached, and there is no testimony whatever rebutting theirs. (2d.) If proper for the jury to find anything for the plaintiff they should only have found for the sum of $80, the whole amount accounted for as spent by Ralph. The balance of money and the goods being unaccounted for are probably now in Cahfornia, subject to the order of the plaintiff; at any rate, no proof was produced of their loss, or of any search for them, diligent or otherwise. 1 Duer on Ins. 92, 94. Sadlers' Com- pany V. Badcoch ^ others, 2 Atk. 554, (May 9, 1743.) 3 Kent, 384 COURT- OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. 367. . Pritchet v. Insurance Company of North America, 3 Yeates, 458. Alsop V. The Commercial Insurance Company, 1 Sumner, 467. Abbott v. Sebor, 8 Johns. Cas. 39. Forbes v. Aspinall, 13 ' East, 322. Niblo v. North American Insurance Company, 1 Sandf. 556, 557, &c. Tyler v. uMna Insurance Company, 12 Wend. 513. 7. It is not the business of a life insurance company to insure goods and profits ; they merely, in a case like the present, insure the life of a debtor. It now appears, by the proofs, that at no time did the relation of debtor and creditor exist between Ralph and the plaintiff, and there was, therefore, no contract between the parties to this action. The defendants were deceived and misled, and would be injured by allowing a recovery under this policy ; because, under the part- nership agreement, the plaintiff has no claim on Ralph's estate. Whereas, if Ralph had been his debtor, he would have had a claim against it, and any receipt therefrom would have been an ademp- tion of his claim, in whole or pro tanto. Hughes on Insurance, (Life,) 379. G-odsall v. Boldero, 9 East, 72. Bainbridge v. Neilson, 10 East, 344. 3 Kent, 367. Tyler v. uSkna Insurance, Company, 12 Wend. 513. Ely v. Mallet, 2 Gaines, 57. 8. If the insurance had been on the whole of the goods, and the policy valued in terms, the insured, under his partnership agree- ment, could only have recovered one half the amount insured at the outside. Murray v. The Columbian Insurance Company, 11 Johns. 313. Hodgson v. Grlover, 6 East, 316. lawrence v. Sebor, 2 Caines, 203. Tyler v. .JEtna Insurance Company, 12 Wend. 513. Kent v. Bird, 2 Cowp. 583. Forbes v. Aspinall, 13 East, 322. Samuel F. Clarkson, for the plaintiflF. 1. As to the defendants' grounds for moving to dismiss the com- plaint, that motion was properly denied. (1.) Strict legal proof was not necessary; the law requires only the best proof the plaintiff can give. Lenox v. United Insurance Company, 3 Johns. Cas. 224. 4 Johns. 131. McLaughlin v. Washington Insurance Company, 23 Wend. 525, 527. 7 Cowen, 645. Lawrence v. Ocean Insurance Company, 11 Johns. 241. A copy of a letter from the master was held sufficient preliminary proof. (2.) The defendants, by letters of 18th May, 1850, and May 23d JANUARY, 1854. 385 Miller ». Eagle Life and Health Insurance Company. and 30th, 1850, required the plaintiff to furnish a statement of the amount of Ms interest, and thereby waived further proof of the death of R. H. Miller. Francis v. Ocean Insurance Company, 6 Cowen, 404. 11 Wend. 64. Vos v. Robinson, 9 Johns. 192, and the cases there cited. 2 Greenleaf on Evidence, § 894. " Whatever be the nature of the preliminary proof, if the under- writer does not object to its sufficiency at the time it is exhibited, but refuses to pay the loss, on some specified ground, the objection of insufficiency in the proof is waived." ^tna Fire Insurance Co. V. Tyler, 16 Wend. 386, note, and 401, 402. McMasters v. The Westchester Mutual Insurance Company, 25 Wend. 379. (3.) The court decided this question on the defendants' demurrer, and the opinion thereon meets also the other questions of the de- fendants, upon the motion for a new trial. The 2d, 3d, 4th, 5th and 6th grounds for the motion taken by the defendants all relate to the amount of the plaintiff's interest, and may be taken and considered together. (1.) The policy does not require preliminary proof of the amount of the plaintiff's pecuniary interest in the life of the deceased. The contract is to be construed, as made by the parties, according to its terms. Hall v. Newcomb, 7 Hill, 416. Spies v. Grilmore, 1 Comst. 321, 324. 6 Barb. Sup. Ct. R. 458, 463. The defendants' letters of May 18, 1850, May 23 and May 30, 1850, require par- ticulars of amount, or indebtedness of R. H. Miller. (2.) That the preliminary proof does show an interest in the plaintiff, appears and is admitted by the defendants^ 2d and &d grounds ; and the preliminary proof as to the plaintiff's interest was held to be sufficient by this court, in the opinion, on the de- murrer. (3.) Any interest or benefit to be derived by the plaintiff, from the life of R. H. Miller, destroys the character of a wager policy ; and at the time the defendants' motion was made, proof on the trial had been made, by the plaintiff's witness. 2 Greenleaf on Evidence, 329 § 409. " But in regard to the interest of the plaintiff in the life in question, it is not to be such as to constitute the basis of any direct claim in favor of the plaintiff, upon the party whose life is insured, if an indirect advantage may result to the plaintiff from his life." Lord v. Dall, 12 Mass. 115, [ante, 154.J 2. The charge of the court was correct. (1.) The complaint and answer present the issue of fact as to the ' 25 386 COURT OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. waiver, and testimony was taken thereupon, and that issue, there- fore, was to be tried by a jury ; § 253, Code ; and before the Code, the question of waiver of further preliminary proof was held prop- erly to be submitted to the jury. MoMasters v. The Westchester Mutual Insurance Company, 25 Wend. 379. Martin v. Fishing Insurance Company, 20 Pick. 389. And as to the preliminary proof, the court very properly left it to the jury to determine whether the defendants had not waived their right to any further proof, &c. (2.) As to the amount the jury were to find, nothing less than $1,000, the whole amount stated in the policy, would fulfil and satisfy the terms of the contract. Nothing less than the whole sum is given upon a total loss. Whitney v. American Insurance Company, 3 Cowen, 210. Here was a total loss of the thing in- sured — the life of R. H. Miller. 1 Bouvier's Institutes, 501. "In an insurance on life, as the loss is a total loss, the full sum insured must be paid." 2 Greenleaf on Evidence, 329, § 409. " But in regard to the interest of the plaintiff' in the life in question, it is not necessary that it be such as to constitute the basis of any direct claim in favor of the plaintiff^, upon the party whose life is insured ; it is sufficient if an indirect advantage may result to the plaintiff from his life." Ellis on Ins. 122-128. Lord v. Dall, 12 Mass. 115, \_ante, 154.J Leonard v. The Eagle Life and Health Insur- ance Company, by R. H. Walworth, Referee, United States Maga- zine, vol. 4, No. 3, p. 286.^ Crawford v. The Mutual Life In- surance Company, New York Superior Court, 1853. Woodruff, J. There is no foundation for the motion made by the defendants on the trial of this cause to dismiss the complaint, because the action was prematurely brought. This claim was urged upon two grounds : First, that the plain- tiff' did not, before the commencement of the action, fiirnish proper and sufficient preliminary proof of the death of Ralph H. Miller, upon whose life the insurance was effected ; and seconds, that suffi- cient preliminary proof of the plaintiff^'s actual pecuniary interest in the life of Ralph H. Miller was not furnished to the defendants be- fore the commencement of the action. As to this second point, it would seem sufficient to say that no 1 No such case is to be found in the U. S. Magazine. JANUARY, 1854. 387 Miller v. Eagle Life and Health Insurance Company. preliminary proof of interest was, by the conditions of the policy, to be furnished. The exhibition of proofs to the defendants on tliis subject, was not made a condition precedent to the title of the plaintiff to demand payment. By the terms of the policy, the sum insured was made payable within sixty days after notice and proof of death. However true it may be that no recovery can be had if the plaintiff had no insurable interest, it in no wise follows that if he had an insurable interest, his right of action was not perfect in sixty days after proof of the death. That was the only preliminary proof prescribed in the contract, and if the defendants thought proper to make any further condi- tion, requiring proof of any other matter, they did so at their own peril. The plaintiff's right of action was complete (if he had an insur- able interest) when he had complied with the conditions of the policy, although he commenced his action at the peril of being defeated, if it appeared on the trial that his contract was a mere wager. I find nothing in the cases cited by the counsel for the appellants inconsistent with this view. They are cases in which the question, as to sufficiency of proof, related to proof of interest on the trial, or where it was made one of the conditions of the policy, that the sum insured should only be payable after proof of loss, which proofs were to be accompanied by particulars showing the extent of the loss sustained, the situation and value of the property, and the like. Such a condition is common in fire and marine policies, and when inserted, is to be complied with ; otherwise there is no such prece- dent condition, and the parties respectively prosecute and defend upon the usual terms. If the plaintiff establishes his case on the trial, he recovers, and cannot be defeated because he did not prove his claim to the satisfaction of the defendants before he commenced his action. The present contract has a plain and obvious construc- tion in this respect, by its common law signification. The defend- ants agreed to pay to the plaintiff " one thousand dollars within sixty days after due notice and proof of the death of the said Ralph;" and how many soever the other particulars may be which the plaintiff must, establish before he could enforce that contract, it was no part of the contract that he should exhibit his evidence to the defendants before the trial. It will, I think, appear in the discussion of the other questions 388 COURT OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. arising upon the exceptions to the judge's charge and the merits of the plaintiiF's claim, that, even if the plaintiff was bound to furnish to the defendants preliminary proof of interest ih the life insured, he did so. The correspondence shows that the agreement between the plaintiff and R. H. Miller was laid before the defendants, and proper affidavits, showing that advances were made, and that R. H. Miller had entered upon the service contracted for. The cor- respondence and the whole historj'' of this eontrov«rsy, ahd the arguments of the defendants' counsel, proceed upon the idea that the plaintiff, to entitle himself to recover, must showi, affirmatively, that he was or would have been entitled to receive from R. H. Miller, in pursuance of that agreement, or what was done under it, a specific ascertained amount, equal to or exceeding the sum in- sured ; and they ask the plaintiff for " a particular statement," in which they insist this should be made to appear on his part affiiTB- atively. If, in the further discussion of the subject, it should seem that the plaintiff was not bound to show in very terms how much would have been derived from the labor and services of Ralph H. Miller, had he lived, or do more than prove the very facts, which appeared in the papers that were laid before the defendants, then, although the plaintiff's mere affidavit is not strictly legal and tech- nical proof, yet, in connection with the agreement and the other affidavits, it should, I think, have been deemed reasonably suffi- cient, unless the defendants based their objection upon the absence of further corroborating evidence. It was not further antlientica- tion of the agreement, nor further proof that R. H. Miller received from the plaintiff his outfit and the goods referred to, and left in pursuit of the enterprise, that the defendants required ; 'but it was details and particulars, and those, too, relating to a matter resting in conjecture, and of which no particulars were practicable, viz. : The results of two years' labor and services, the performance of which was rendered impossible by death. The consideration of this branch of the subject will be material under the other exceptions herein, but under the conclusion above stated, that preliminary proof of interest was not necessary, it need not be further pursued here. In regard to the first objection above named, to wit, that the iplaintiff did not fiirnish to the defendants sufficient preliminary proof of the death, I am no less clear that no error was committed, in denying the defendants' motioii to dismiss the comjilaint, hj which the defendants were in any manner prejudiced. JANUARY, 1854. 389. Miller v. Eagle Life and Health Insurance Company. The correspondence between the plaintiff and the agints of the defendants shows very distinctly that the defendants placed their objection to the payment of the sum insiired upon the ground that the amount of the plaintiff's interest did not appear with suiBcient particularity. Thus, the letter of the 18th May, 1850, distinctly referring to the preliminary proof of death, &c., says : "We received your affidavit ai^d that of Mr. Strobridge, respect- ing death of R. H. Miller ; you have omitted to furnish a statement of the interest in the life." So the letter of May 23d : " What we require is, to know what amount you advanced, and what amount has been returned to you," &c. — " or, in other words, we want a statement of R. H. Miller s indebtedness to you." And again, on the 30th May, after a somewhat extended discussion of the nature of the contract of insurance and the law relating thereto, as under- stood by the company, to show that the plaintiff can recover no more than his pecuniary interest in the life of the deceased, tlie letter of their general agent proceeds : '^ What has been required of you is only in accordance with the whole object and intent of insurance. " It will therefore be necessary for you to furnish the company with a particular statement of interest at the time of death of the party insured." In all this there was no intimation that the proof of death was not entirely satisfactory ; on the contrary, the language imports an admission that R. H. Miller is dead. In my own judgment the affidavits which have been furnished tq the cpmpany, although not strictly legal proof, were such as might reasonably and properly be deemed by the company satisfactory, but whether so or not, they were at liberty to treat them as sufficient, and no proposition is more fully settled than that an insurance company mg.y waive de- fects in the preliminary proofs, and may, if they please, dispense with them altogether ; and where they place their refusal to pay upon another distinct ground, they are deemed to waive any further compliance with this condition of the policy, or to assent to the sufficiency of the proofs in this respect. Thus, in Vos v. Robinson, 9 Johns. 195, the court distinctly held that, by plachig his objection upon another ground, the underwriter admitted the sufficiency of the preliminary proof, or waived the necessity of producing it. In Francis v. The Ocean Insurance Company, 6 Co wen, 404, and iS. 0. in Error, 2 Wend. 64, the preliminary proofs were not claimed to be sufficient, but it was .390 COURT OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. insisted, and the court held, that the defendants, by putting their objections on the merits and not on the defect, waived any imper- fection in such proofs. The same doctrine was again stated in the court of errors in JEtna Fire Insurance Company v. Tyler, 16 Wend. 401 ; and again in McMasters v. The Westchester Mutual Insurance Company, 25 Wend. 379, and Turley v. The North American Fire Insurance Gom^ny, Ibid. 374. Cases might he multiplied, in this and other states, to the same effect, but it is not necessary. The evidence above recited was in no wise contra- dicted when the motion to dismiss the complaint was made, and the court rightly denied the motion, so far as it rested upon any defect in the preliminary proofs. It will be convenient, in this connection, to consider one of the exceptions taken to the charge of the judge to the jury, which is now urged as a ground for reversing the judgment, to wit, that the judge submitted to the jury to find as questions of fact : 1st, whether the defendants did require any further proof of the death ; and 2d, whether they waived any further proof of that fact ; with a distinct declaration, that if they found for the defendants upon either of the questions, the verdict should be rendered in their favor. The defendants' counsel tben insisted, and now insists, that those questions ought to have been determined by the court as questions of law. After the denial of the motion to dismiss the complaint, the de- fendants furnished some oral testimony to the effect that the agent of the company did, nearly two months after the foregoing corre- spondence, and a few days before the suit was brought, tell the plain- tiff that he had given no proof of the death, and that the company could not pay on such proof of death as he had furnished. To this the general agent testified, and he is corroborated by another wit- ness. But this is contradicted by one of the plaintiff's witnesses, who was present and heard tlie whole conversation. Upon the whole evidence, I think the finding was correct upon this point, and, therefore, whether the question was properly left to the determination of the jury, or should have been decided by the court, the result is the same. The defendants have suffered no prejudice. If it was a question for the jury, they have found against the defendants, and in accordance with the weight of the evidence, when the whole correspondence, as well as the oral testi- mony, is taken into view. If it was a question for tlie court, the JANUARY, 1854. 391 Miller v. Eagle Life and Health Insurance Company. result is the same, for the court must have held the proof of waiver amply sufficient. Besides, if it be assumed that what the defend- ants' witnesses testified was true, it could not, I think, affect the result. The defendants had taken their ground long before the interview referred to. They rested their objection upon another ground, and in substance and effect admitted tlie death of the subject of the in- surance, and so waived further proof on that point. They could not, afterwards, just as a suit was to be brought, and without any pretence that they had been deceived, or misled, or were even mistaken, change their ground and say to the plaintiff, you must now furnish better proof of death, and wait another sixty days after that is furnished. Indeed, the testimony of the agent himself is quite consistent with this statement of their position : "True, we have waived further proof — we have admitted the death — we rely upon want of interest as a defence ; but as you ' have employed a lawyer,' we shall retract our admission, and set up the defects we have heretofore waived." If he did tell the plaintiff that the proof of death was insufficient, he stated what, if true, the plaintiff may have been aware of already, and at the same time he knew that the insufficiency was waived. There is nothing, then, in this exception to the charge. I do not, however, mean to be understood as saying that the question ought to have been decided by the court, but only that we should not reverse upon any such ground, where the court must have decided as the jury in fact found. The case of MoMasters v. The Westchester Mutual Insurance Company, 25 Wend. 379, (in which the doctrines of The Oolumhian Insurance Company v. Lawrence, 2 Peters, 48, &c., so largely relied upon by the appellants as their authority for their various points in this case, is commented upon and condemned,) shows that this was a proper question for the jury. The sufficiency of preliminary proofs to satisfy the condition in the policy, and what facts amount to a waiver of such proofs, or of defects therein, are undoubtedly questions of law, and must be decided by the court. But whether such proofs were furnished to the defendants, and whether the acts were done which constitute the alleged waiver, are both questions of fact, and are, I think, properly left to the jury. The remaining grounds urged in support of the motion to dis- miss the complaint, involve the whole merits of the plaintiff's cas. Eagle Life and Health Insurance Company. prise. I apprehend that a life insurance in which the subject of insurance is expressed to be the profits resulting to the assured from the continuance of the life would be a novelty. None such is pointed out to us. And yet, in an insurance upon life in the present form, proof of interest of necessity involves, in most cases, a showing of nothing more nor less than that the assured has a claim to the pecuniary results of its continuance. The defendants further insist that the interest of the plaintiff in the life insured, having relation only to services, labor, and earn- ings, the proceeds whereof were to be equally divided between him and R. H. Miller, was an interest held jointly with the said Miller as copartnership property ; and that therefore a policy granted to himself in form and effect upon his individual interest does not em- brace it. It is not necessary to deny that an insurance, in terms, upon the goods of John Styles will not cover the goods of a firm in which he is a copartner. When the description of the subject of the insurance is such as plainly to relate to individual property, it may well be held to embrace no other; but this appertains to description and to description merely. And if the terms of tlie policy be such as to cover copartnership property, the interest of the assured therein will be protected by it. See Dumas v. Jones, 4 Mass. 647 ; Turner v. Burrows, 6 Wend. 541 ; 8 Ibid. 144 ; 2 Cranch, 419 ; Lawrence v. Sehor, 2 Gaines, 205 ; Lawrence v. Van Home, 1 Ibid. 276 ; 3 Kent, 258. I am not aware of any rule or principle that prevents one of two joint owners or copartners insuring his separate share or property in the joint stock or property held in common. One of two joint owners may insure his interest in a ship ; one of two tenants in common, his interest in a building. And again, the nature of the insurance now in question makes it applicable to the separate in- terest of the plaintiff, and to nothing else. The views above suggested all tend to this result. Giving to this policy the construction upon which its validity depends, it was a security to the plaintiff and for his indemnity ; and the circum- stance, that in inquiring whether he had an insurable interest, we discover that another had a concurrent and equal interest with him, does not alter its character. On no principle could the amount recovered be deemed joint property. Nor is it necessary that a policy should disclose the nature or extent of the interest of the assured. See the cases last above cited, and Tyler v. JEtna Ln- 26 402 COURT OF COMMON PLEAS, NEW YORK. Miller t). Eagle Life and Health Insurance Company. Burance Qo. 12 Wend. 507, and cases cited. It will be sufficient if it appear that an insurable interest exists, and that the insurance was made in good faith to protect that interest. Again, the defendants insist that a life insurance in favor of one upon the life of another presupposes the subsistence of the relation of debtor and creditor, in which case the underwriters would be entitled to abate from the claim whatever the estate of the deceased debtor had paid ; Gfodsall v. Boldero, 9 East, 72 ; and upon pay- ment by them would be entitled to subrogation to the rights of the creditor as against that estate. As to this, however, see Bunyon's Life Assurance, 26, 27, and cases cited. It is unnecessary to question this view of the rights of the un- derwriter where the relation of debtor and creditor exists. But the argument sought to be drawn from it would prove that no such insurance can be valid unless the relation of debtor and creditor does exist, which proposition has been already sufficiently consid- ered. If the view which I have taken of the subject be correct, the plaintiff would have had a valid claim under this policy had Ralph H. Miller died within one day or one hour after he had entered upon the performance of the agreement, and before the vessel in which he sailed from this city was out of sight of our wharves ; and yet the plaintiff would not have had a claim against his estate for anything he had advanced, or for any anticipated profits. The question then finally recurs. What is the measure of the plaintiff's recovery ? The value of the plaintiff's interest was altogether contingent and uncertain. It depended upon the health of the assured — his industry and skill ; upon various circumstances of accident, place, and time, which could be neither foreseen nor controlled. In this respect the insurance was like an insurance upon profits. Indeed, the defendants' counsel not only concedes this but he ar- gues that it was (if it be sustained at all) an insurance upon profits. And that it was an insurance of that nature, though not technically so, is, I think, most clear. If this be true it follows that this pol- icy is to be deemed in the nature of a valued policy. An insurance upon profits is held to be of that nature, whether it is so in terms or not. 3 Johns. Cas. 43. And this, for the ob- vious reason that in case of loss it is impossible to determine what the profits would have been ; as in case of an insurance of the profits on goods destined for another market, multiplied contingen- JANUARY, 1854. 403 Miller v. Eagle Life and Health Insurance Company. cies, the effect of which in case of a loss of the goods can neither be estimated nor ascertained, render it sometimes impossible, and at others exceedingly difficult to find any reliable criterion by which to determine what amount of profits might have been real- ized. Hence it is said in Tom v. Smith, 3 Gaines, 249, " It is more equitable to consider these insurances as a species of valued policies on cargo, which they are in substance though not in form ; " and in Mumford v. Sallett, 1 Johns. R. 439, " Though the prof- its are not valued, yet every such insurance must of necessity be considered as a valued and not an open policy." . ..." It does not follow that a profit will be made if the cargo arrives ; and yet its loss would give a right to recover upon such an insurance." If this view of the nature of an insurance upon profits be adopted, the conclusion is inevitable that the present policy, being in the nature of an insurance upon gains and profits, was, in sub- stance, a valued policy, and the sum insured was the true measure of damages, as was charged by the judge on the trial. It does not follow from this that every insurance upon life is to be regarded as valued so as, under our statute, to entitle the as- sured to the sum named in the policy at all events ; as for example, where the creditor insures the life of his debtor, or an annuitant insures the life upon the continuance of which the annuity de- pends ; for although the policy be valued in very terms, it can only be sustained when made for the purposes which the statute authorizes. Be this as it may, I am clearly of opinion that it must be re- garded as valued in all cases, so as to dispense with proof of the actual amount of loss, or sum necessary to amount to indemnity, where the amount of the loss is not determinable by any specific known standard, or depends upon contingencies, the effect of which renders calculation impracticable, or so difficult as presumptively not to have been contemplated by the parties to the insurance. It is, therefore, unnecessary, for the purposes of this case, to de- clare the policy upon life to be a valued policy according to the use of that term in the law of insurance, or even to adopt the re- marks of the court in the cases above cited, although that, in my opinion, is its proper character. See 1 Phillips on Insurance, chap. 3d, § 14. Under the English statute which declares that the as- sured shall recover no more than the value of his interest, it may be that the burden of proof would devolve on the plaintiff to show 404 COURT OF COMMON PLEAS, NEW YORK. Miller v. Eagle Life and Health Insurance Company. that he would have realized some benefit from the continuance of the life and pecuniary value thereof. That was held necessary in a case of marine insurance upon profits, although valued in form under the statutes relating to that subject. In the recent case, however, above referred to', (15 Com. B. Rep. 365,) it is held that it is not the interest at the time of the recovery but at the time of effecting the insurance, that determines the validity of the policy and amount of the recovery. The difierence between the phraseology of the English statute and our own may possibly require a different rule in this respect ; but where it appears that the policy in question is made in good faith for the indemnity or security of the party assured, and is therefore valid under our law, I perceive no rational objection to the view that, when it appears that the insurance was designed to guard against a loss, or to secure interests of uncertain amount, which, though they might be less, might also greatly exceed the sum insured, and depending upon contingencies, the effect of which is not from their nature susceptible of proof, the sum insured is to be deemed the indemnity intended by the parties. This would accord with the most rational view of the contract itself. Indeed, it only gives it effect according to its very terms, and is entirely consistent with our statute. The policy may be said in effect to read thus : We agree to pay the plaintiff one thousand dollars in case of the death of R. H. Miller, to indemnify him for the loss of the probable fruits of the agreement between them. This view is rational because it is only by that view that the insurance (although a valid agreement) could have any practical effect. Proof how much R. H. Miller would have realized from digging gold, had he lived, is impossible ; and shall the plaintiff's claim, therefore, fail entirely ? I think not. But if the defendants' ar- gument in this respect is sound, it must ; for the plaintiff had no claim to receive anything from Miller except proceeds of his exer- tions in that and other business ; and he having died, the means of proving the actual loss in dollars and cents are gone forever if the agreement with the defendants is not to furnish a guide. An insurance on one's own life is recoverable to any amount, because the interest of the assured is presumptively worth any value at which it may be insured. JANUARY, 1854. 405 Miller i). Eagle Life and Health Insurance Company. The interest of a wife in her husband's life is not susceptible of any certain valuation by any standard capable of proof; and yet there it is not doubted, and cannot be denied, that the sum insured forms the proper measure of recovery. So here, in the absence of any fixed or ascertainable criterion by which to determine the pecuniary value of the plaintiff's interest, the sum insured must be taken as the agreed amount of tlie loss by the happening of the event insured against. If not strictly in the nature of liquidated damages, it is the prima facie amount of loss. Whether in a case in which the circumstances were such as to render it practicable, (as where the subject of the insurance had in fact been unsuccessful in the enterprise, and had abandoned it, and returned and died shortly before the term of years stipulated for had expired,) the defendants should be permitted to show tliat no proceeds could be realized by the plaintiff, and therefore that he had lost nothing by the death, and indemnity to him does not re- quire the payment of any sum, it is not necessary to say. No such state of facts appears here. In the analogous case of the wife I do not think that the underwriter would be permitted to show that the infirmities or vices of her husband were such that his death was a benefit and not a loss. And it has long been doubted, and at last decided in England, that if the insured had an insurable interest at the time the con- tract was effected, the amount to be recovered is not so altered by a subsequent cessation of that interest that no greater sum shall be recovered than the value of the interest of the assured at the time of the recovery. See the case of Crodsall v. Boldero, reviewed, and cases cited ; Bunyon on Life Assurance, pp. 23, 24 ; see also Balby v. The India and London lAfe Insurance Company, 15 Com. B. 365. And when, as in this case, the amount of in- terest remains unaltered, no inquiry into the probability that it would be saved if the life continue could be permitted. Under our statute insurances of this description must, in regard to the measure of damages, depend upon their peculiar nature and circumstances. Where the measure of indemnity is fixed and cer- tain, or can be made so by proof, doubtless that should govern. But where, from the nature of the interest of the assured in the life, the value is altogether contingent, and may be more and may be less, and can neither be proved nor be estimated by any avail- 406 SUPREME COURT OF NEW YORK. Buckbee v. United States Insurance, Annuity, and Trust Company. able or known standard, the sum insured must be taken as the proper measure of recovery. In my own opinion all policies upon life should be treated as valued policies ; and when the plaintiff has shown enough to bring his case within the exception in our statute, by proof that the in- surance was made in good faith, for his security or indemnity, ho should be deemed (^prima facie at least) entitled to recover the sum insured. But it is not necessary to pursue the subject fur- ther. The judgment should be affirmed. Judgment affirmed. As to insurable interest, see note to Lord v. Doll, ante, 158. Waiver oi preliminary proofs. Peacock v. New York Life Ins. Co., post, 455, 465. Buckbee vs. The UNriED States Insurance, Annuity, and Teust Company. (18 Barb. 541. Supreme Court, November, 1854 ) Payment of premium. Waiver of forfeiture. — The life policy in question provided that in case the premium was not paid on the day specified, it should be void ; but in such case it might be renewed on satisfactory proof of the health of the insured; a reexamination being required when thirty days should have thus expired. It was proved that the com- pany had been very lax on this subject ; never requiring the premium to be paid promptly when due, and in one instance allowing it to run by for more than a month. The last premium, which was due on the 10th of December, was paid on the 16th, and duly re- ceipted. The insured died the following month from a disease from which he had been suffering nine weeks. Held, that the company had, by their previous conduct, and by accepting and receipting for the premium on the 16th of January, waived their right of forfeiture. The case is stated in the opinion of the court. Wightman ^ Clark, for the plaintiff J. S. Sluyter, for the defendants. Clerke, J. John, C. Buckbee, the husband of the plaintiff, in- sured his life with the defendants in the sum of one thousand dol- lars, for the benefit of his wife. The premium of ten dollars quar- terly was to be paid in advance ; the first payment on the 10th March, 1851, when the policy was executed. It was provided that in case the premium should not be paid on the days specified, the policy should be void ; but in such case it might be renewed at any time on the production of satisfactory evidence as to the health of the insured, and payment in full for back premiums, with interest ; a reexamination by a medical examiner of the company (at the expense of the insured) being in all cases indispensable, NOVEMBER, 1854. 407 Bnckbee v. United States iDsurance, Annuity, and Trust Company. when thirty days should have expired. The premiums were not generally paid on the day on which they fell due, probably not in any instance, — at all events, not on more than one of the four oc- casions ; the first, which was payable on the 10th March, 1851, was not paid until the 4th April ; the second, payable on the 10th June, was not paid until the 12th July; and it is not stated in the case when the third was paid ; the fourth and last, payable on the 10th December, was paid on the 16th. Buckbee died on the 19th January, 1852, having suffered for nine weeks with a tuberculous disease of the stomach and liver, which terminated in his death. He was, therefore, far advanced in the disease at the time the last premium was paid. The defendants now insist that the policy having lapsed in consequence of the non-payment of the premium on the 10th of December, when it was payable, the plaintiff was bound under the first of the conditions accompanying and forming a part of the policy, to disclose the state [of] her husband's health at the time, and that not having done so, the policy was not re- newed, but is void. It will be borne in mind that in life insurances, after the origi- nal application is accepted and the contract consummated, the in- sured has the benefit of the policy, whatever may happen to the health of the person whose life is insured, provided the insured complies with the condition of the contract. So that if the pre- mium in this case had been paid on the 10th December, the plain- tiff was under no obligation to say anything about her husband's health, for whether he was sick or well she was entitled to insure at the rate specified in the policy. The question, therefore, is, whether the omission to pay the pre- mium for six days after it became due required any different course of conduct on her part. A very great latitude as to the time of payment, it will be seen, was permitted by the defendants with re- gard to the former payments except one ; and it does not appear that even that was paid on the day when it fell due ; and such, I believe, is a very common, perhaps the most usual practice in in- surance companies. The premium is never expected upon the precise day on which it falls due. The practice of the defendants seemed to be very lax on this subject, and naturally induced the plaintiff to suppose that a literal compliance as to the hour and day of payment would no more be required on this than on the former occasions. They had the right, undoubtedly, at any time 408 SUPREME COURT OF NEW YORK. Buckbee v. United States Insurance, Annuity, and Trust Company. to regard this short delay as a deviation from the terms of the con- tract, and before they received payment of the premium, to require evidence of the health of the insured ; but it may be well doubted whether in this case they could enforce that right without notice to the plaintiff that they intended no longer, unless this evidence should be produced, to receive the payment of premiums as here- tofore, after they became due. The premium, however, was ac- cepted without objection; and according to the evidence of Thomp- son, not a word passed between him and the clerk who received it about Buckbee's health. At all events, it was received on the 16th December, entered to the credit of the policy, and a receipt given for it, thus placing the parties, in my opinion, precisely in the same condition as if it was paid on the 10th, when it is admitted that whatever was the condition of Buckbee's health, the policy re- mained in full force. Under the circumstances, then, time cannot be considered as the essence of such a contract ; and it would be a very rigid, not to say inequitable interpretation, to say that what- ever might have been the previous practice of the defendants in waiting for payment of the premiums, if the insured avails himself of the indulgence constantly granted, although in a much less de- gree, and the health of a person whose life is insured fails in the mean time, the insurers are to be allowed to take advantage of the remissness which their own conduct, perhaps, occasioned. It may therefore be well presumed that the delay of payment was not without the concurrence of the defendants. This being the case, there was a waiver of a literal compliance with the terms of the first condition, and in effect the policy did not require re- newal within the meaning of that condition ; for in truth it was not lapsed. The precise time, indeed, specified in the contract, had elapsed ; but judging from the acts of the parties, commencing with the acceptance of the original application, the policy, strictly speaking, had not lapsed. If this view is correct, it was not nec- essary to submit any questions to the jury relative to Buckbee's health ; for if the conduct of the defendants or their agents amounted to a waiver, and restored the policy to the same condi- tion in which it would have been if the premium had been paid on the very day and hour on which it fell due, all inquiries of this kind were superfluous ; if there was no waiver, it is quite cleai there could be no renewal, because the plaintiff" haid it not in her power, pursuant to its first condition, " to produce satisfactory evi- DECEMBER, 1854. 409 Valton 0. National Loan Fund Life Assurance Society. dence " as to her husband's health ; for he was then, no doubt, far advanced in the disease -which soon after caused his death. The judgment should be affirmed, with costs. See Baker v. Union Life Ins. Co., post, 595 ; Bouton v. American Mut. Life Ins. Co., ante, 51, and cases cited. Valton and Adams vs. The National Loan Fund Life As- suEANCE Society. (22 Barb. 9. Supreme Court, December, 1854.) Com^nracy. — What business a firm is engaged in, or with whom they deal, can have no bearing upon the question of a conspiracy on their part to defraud an insurance company by procuring a policy upon the life of one of their own number for their own benefit, and then murdering or secreting the assured. Harkis, J., dissented. Insurable interest, — When a party insures his own life the legal presumption is that it is for his own benefit. A party has an insurable interest in his own life ; and no use by him of the policy, subsequently to the contract of insurance, can convert it into a wager policy. If valid in the inception, he may dispose of it as he pleases. Harris, J., dissented. Insurable interest. — M., V., and S. formed a partnership ; IH. and V. agreeing to furnish the capital against the skill of S., who furnished no money. In order lo indemnify M. and V., it was agreed that S. should insure his life, the money to be paid to M. and V. in case S. die unmarried. The insurance was effected in the name of S., though M. took an active part in securing the policy. Held, that as S. effected the insurance for himself, and not as agent for M. and V., and in part at least for his own benefit, the policy was valid, and the company were liable. The case is sufficiently stated in the opinion of the court. H. Nicholl, for the appellants. 1. Insurance a contract of indemnity, whether fire, marine, or life. McLaren v. Sartford Fire Ins. Go. 1 Seld. 151. Q-odsall V. Boldero, 9 East, 72. Lueena v. Oraufurd, 3 Bos. & Pul. 75. Hx parte Andrews, 1 Mad. 573. Halford v. Kymer,- 10 Barn. & Cress. 724. Devaux v. Steele, 6 Bing. N. C. 858. Stockdale v, JDunlop, 6 Mees. & Wels. 224. Park on Ins. ch. 22, p. 638. 2. Wager contracts. 2 R. S. (4th ed.) 72, §§ 9, 10. Amory v. Grilman, 2 Mass. 1. Buchanan v. Ocean Ins. Co. 6 Cow. 318. 2 Black. Com. 459, (N. Y. ed. 1852.) Lord v. Ball, 12 Mass. 115, [ante, 154.] Bobbins v. iV. Y. Ins. Co. 1 Hall, 325. Romeyn on Life Ins. 20. 2 Burr. 1167, 1182, 1183. 2 Phil, on Ins. §§ 304, 305. [1 Phil, on Ins. §§ 352 et seq. ; 2 Ibid. 1216, 1217, 1247, 5th ed.] Paterson v. Powell, 9 Bing. 320. Cowp. 583. WainewrigU v. Bland, 1 Mood, & Rob. 481 ; S. 0.1 Mees. & Wels. 32. 3. Misrepresentation. Sibbald v. Sill, 2 Dow, 263. 2 Duer 410 SUPREME COURT OF NEW YORK. Valton V. I^ational Loan Fund Life Assurance Society. on Ins. 680. 1 Phil, on Ins. §§ 541, 542, and cases cited. He further argued that the suspicious and extraordinary circumstances of the case should be well considered by the jury. John K. Porter, for respondents. Weight, J. I endeavored to bring to the trial of this cause the utmost care. The actors were all foreigners, Germans on the one side and Englishmen on the other, and for anything that ap- peared by the evidence, of equal respectability, and entitled to an equal measure of consideration at the hands of the courts. Through the probably careless discharge of duty by their agent, and his eagerness to obtain risks, the defendants were involved in a litiga- tion for a large sum. The principal defence set up in the pleadings was, that the policy was obtained by fraud. The complaint averred the issuing of the policy, the payment of the premium, and the death of Schumacher, upon whose life the insurance was effected, none of which averments were denied by the answer. The answer alleged as new matter, that upon the application to insure, Schu- macher was represented as a merchant, a partner with Valton and Martin in business, and a man of large means, which representa- tions were untrue and avoided the policy ; and that the policy was obtained by fraud, and with the fraudulent intent of Martin and Valton, with or without the concurrence of Schumacher, of soon thereafter secreting or otherwise disposing of Schumacher, and making claim, under their pretended articles of partnership, on the defendants for the amount of the insurance, and that Valton and Martin, or one of them, had secreted or otherwise disposed of Schumacher with such fraudulent intent. It was not pretended in the pleadings that Martin or Valton, or either of them, procured or paid for the policy for their own benefit, and that it was thereby void as being a wager policy. No such issue was presented or hinted at ; nor when the case was submitted was there really any competent or sufficient evidence to go to the jury on the question of a fraudulent evasion of the statute against wagers. It is admitted that upon the issues made by the pleadings, and indeed on the whole case, the questions of fact were properly sub- mitted to the jury ; and they have found against the defendants. I anxiously desired on the trial that right only should prevail, and I am still desirous, if any error in law has been committed by me, to the prejudice or injury of the defendants, that a new trial should be awarded. But I frankly confess that I am not willing or desir- DECEMBER, 1854. 411 Valton V. National Loan Fund Life Assurance Society. ous, more in this instance than any other, that the parties should be allowed to present the case to another jury, for the reason only, that mystery, as my brother Harris expresses it, " still seems to envelop some of its principal features," or that a shadowy, unde- fined suspicion of wrong still attaches to it. It is the opinion of one of the members of the court that no error was committed in the admission or rejection of evidence, or in the charge or refusal to charge as requested. Another has come to the conclusion that the deposition of Oltman should have been suppressed ; that the defendants should have been permitted to prove his declarations made to their agent, as to the circumstances attending the death of Schumacher ; and that it was erroneous, under the evidence in the case, to refuse to charge, that if the jury found that Martin or Valton, or either of them, procured or paid for the policy, for their own benefit, though with the assent of Schumachei', it was void, as being a wager policy. The first two objections were but feebly urged on the trial, and the last was not thought of, as being in the case, until after the jury had been charged. Indeed, had the first been allowed, pretty much all of the defendants' theory of a fraudulent conspiracy to secrete Schu- macher and claim the insurance money, would have vanished, for it was upon Oltman's " niarvellously strange " narrative of the death of Schumacher, that the theory was principally based. Un- der the pleadings, it was not necessary that the plaintiffs should have introduced the deposition of Oltman, for it was only impor- tant to prove the death, and that was averred in the complaint, as well as the time at which it occurred, and not so denied in the answer as to put in issue either the fact or the date. These being material allegations, were, for the purposes of the action, to be taken as true. Code, § 168. The plaintiffs might have rested their case, on showing the assignment from Martin to the plaintiff Adams, and proving the fact that the required notice had been given to the defendants of the death of Schumacher. But they choose to proceed as though by the pleadings they were put upon proof of all material allegations in their complaint, and as the case was novel in some of its aspects, and the sum involved large, I was not disposed to interfere. With the view of substantial justice between the parties a most liberal construction was given to the answer of the defendants. Had the plaintiffs stopped after proving the facts put in issue by the pleadings, leaving to the de- 412 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. fendants to establish affirmatively the frauds set up in their answer, there would have been little " mystery surrounding the case," and nothing " peculiar in the character and circumstances of the prin- cipal witness." The defendants would scarcely have made an approach towards establishing the fraud charged in their answer. As it was, not a single fact was affirmatively shown by the defend- ants, bearing on the issue of a conspiracy between Valton, Martin & Schumacher, to defraud the insurance company by obtaining the policy, and either secreting, kidnapping, or murdering Schumacher, that two of the conspirators might claim the moneys secured to be paid by the policy. They relied not on facts proved by them- selves, but upon the improbability and inconsistency of the state- ments of the plaintiffs' witnesses to prove Schumacher's death. Fraud was to be inferred, not from facts and circumstances proved legitimately and directly tending to the conclusion, but because the defendants had succeeded in throwing some mystery about the case, and stoutly declared that the principal witness of the plaintiffs to prove Schumacher's death was not to be credited. Oltnian's dep- osition, with the testimony of their agent, was all the defendants had on which to go to the jury upon the questions of fraud or false representations. The objection, therefore, to the deposition was feebly put forth, but as the plaintiffs chose to offer it, and insist upon its reception, we are now to say whether there was error in refusing to suppress it. The case states that upon the deposition of Oltman taken on commission, being offered in evidence, the defendants objected, oil the ground that two cross-interrogatories, the 'first and the nintli, were unanswered in part ; and after the deposition had been re- ceived and read the same objection was renewed,, and exception taken. If this meant anything definite, it was that the court was asked to suppress the entire deposition on the ground of a partial failure to answer what the defendants' counsel termed two cross- interrogatories. That which is called the first cross-interrogatory embraced nineteen questions ; the ninth, five questions. Which of these numerous questions Oltman had failed to answer was not pointed out ; but the court was left to ascertain from an examina- tion of the interrogatories, and indeed the entire deposition, whetlier the witness had failed to tell the whole truth. In what respect the interrogatories were unanswered was not specifically stated. Under these circumstances, and with such an indefinite objection. DECEMBER, 1854. 413 Valton V. National Loan Fund Life Assurance Society, I should have deemed it an unjustifiable exercise of discretion to have suppressed the deposition. Suppose Oltman had been upon the stand as a witness, and nineteen distinct inquiries had been put to him at one time, and he had attempted to answer all of them : but the defendants' counsel, supposing he had failed in part, moved to strike out the whole of his testimony, without stating wherein he had failed ; would any judge, under such circumstances, have stricken it out ? I think not. And if not in such case, clearly it could not be justified when the parties join in a commission to ex- amine a witness, and the defendants lie by until the trial, and then surprise their adversary and the court with a vague objection. But I think that it is only when the officer neglects to put the interrog- atories settled, or when the witness refuses to answer, that the commission is deemed to have been imperfectly executed ; and the deposition for that reason suppressed. This is as far as any case has gone in the courts of our state. Can it be when a party unites all sorts of questions in an interrogatory, when there is no neglect of the ofBcer to put them to the witness, and the wit- ness does not refuse to answer, but gives what he and the officer deem a proper and sufficient answer, that the court is called upon, on the trial, to determine as to the pertinency of a part, or the whole, of the interrogatory, and the wilful attempt of the wit- ness to evade a full answer, and as these questions sliall be found, to receive or suppress the entire deposition ? Let this rule be established, and I venture to affirm that four fifths of the commis- sions issued to examine witnesses will be found to be imperfectly executed, and consequently to be suppressed. But .if it be con- ceded that evading an answer to a pertinent inquiry is sufficient ground to suppress a deposition, and that the refusal to suppress it upon a general objection like this is available to the defendants, was the objection well taken in this case ? It is to be observed that all the plaintiffs proposed to prove by Oltman was the death of Schumacher, and the circumstances attending it. This was the single point to which he was interrogated ; and this was a work of supererogation, for, as has been remarked, the fact was not put in issue. There were seven direct interrogatories, and four of them related to the witness' age and occupation, and his previous ac- quaintance with the parties to the action, and with Schumacher. But this was enough to start the defendants' counsel on a rambling excursion in search of something on which to build a defence. It 414 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. is said that the plaintiffs chose to examine the witness on commis- sion, instead of having him in court ; and this is put forth as a rea- son for regarding many of the cross-interrogatories as pertinent. But is this really a fair argument ? The witness remained in the employ of Valton & Martin for six months after Schumacher's death; and then left the state. The plaintiffs could not coerce his personal attendance in court, and to obtain his testimony were driven to a commission. The agent of the defendants knew of Oltman being in Albany in September and October, 1850, and was informed that he was with Schumacher when he was drowned. He accompanied the agent to the office of an attorney, and they examined him critically respecting the circumstances of Schu- macher's death. The agent caused him to be arrested on a charsro of conspiracy to defraud the defendants, which charge was dis- missed, and he remained in the state for months afterwards. Pos- sessed of all the information derived from an examination of Olt- man, the defendants, after this suit was commenced, in April, 1852, joined in a commission to examine him on interrogatories in the State of Indiana. Though the plaintiffs had interrogated him to but a single point, there were sixteen cross-interrogatories pro- posed, embracing in them nearly two hundred questions, half of which had no relation to Schumacher, or his death, or the circum- stances under which he was drowned. Seven of the inteiroga- tories, embracing fifty questions, related to the witness himself, distinct from any connection with or knowledge of Schumacher, the precise place of his birth, who were his parents, the name of his father and his occupation, where he lived, when the witness came to this country, by what route he came, what his occupation was before he left, with whom he lived, the places where he lived, and the persons with whom he pursued his several occupations, who came with him to this country, what had been his occupation each month since his arrival, who he had worked for particularly, the compensation that he had received, and generally every act of his life since his arrival in the United States. Two of the inter- rogatories related solely to Martin and Valton, embracing thirty- four questions respecting the pedigree of each, their business, how old the witness supposed they were, whether they were ever mar- ried, or had any children, and how many. There was but one interrogatory as to the circumstances of Schumacher's death, and that embraced fifty-three distinct questions. We are told now, DECEMBER, 1854. 415 Valton ». National Loan Fund Life Assurance Society. that in the first interrogatory, among other things, he was required to state whether he pursued one or more occupations before he left Germany, and to describe each particularly, and also the places where, and the persons with whom, he pursued such occupations ; and that by his answer he designedly evaded the inquiries. But conceding that these precise inquiries were material and pertinent, was there any design apparent to evade answering ? He was asked what his occupation was before he left Germany, and whether he pursued one or more occupations ; and with whom, and where he lived, before he left. To these inquiries he answered that his occupation was that of clerk in a court of justice ; that he lived with his mother, (having previously said that his father had been dead about ten years,) naming the town, county, and dukedom ; that he followed sometimes the mixing of liquors in Ovelegonne and in Bremen, but did not recollect the names of the persons that he mixed liquors for ; that he mixed liquors when travelling, that is, when away from his place of residence. This was substantially answering the inquiries, and in a way that a person would ordi- narily answer them. It is now said that he wholly failed to give the title of the court of justice of which he was clerk, or the place where it was held, or the names of the judges, or the persons un- der whom he acted as clerk. But did the interrogatory as to what occupation he had pursued suggest to the witness that lie was to answer as to these things ? Besides, the frame of the interroga- tories was calculated to lead the witness precisely to the answers given. , The first question was as to his occupation. This he an- swered by stating that it was that of clerk in a court. The next inquiry was whether he pursued one or more occupations ; and this was followed by an inquiry, not as to what occupations he had pur- sued, but with whom and where he lived before he left ; and he was then asked to describe with whom and where he lived ; and getting back to the question of occupation, the places where, and with whom he pursued such occupations. I confess I can perceive no design to evade answering ; but if the defendants have failed to get a full de- scription of the court in which the witness acted as clerk, it was not because the witness strove to conceal the information, but be- cause the interrogatory failed to convey to him the idea that it was wanted for any purpose. Again, had lie evaded answering fully as to the persons with whom he had pursued any particular occu- pation in Germany, it would have been no ground for suppressing 416 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. the deposition ; nor, had he been upon the stand and refused to answer, for striking out his evidence altogether. The inquiry was in no way pertinent or material. The witness could not be im- peached in that way. The determination of the jssues in the action did not depend on his " story " being believed in regard to these collateral and irrelevant matters, nor did it require that the court and jury should be entertained with the history of the witness' life in its minutest particulars. As well might the plaintiffs' counsel have insisted that the testimony of the principal witness for the de- fence, who was also a foreigner, should have been struck out of the case for failing to answer or evading an inquiry as to his pri- vate life before leaving England. It will scarcely be pretended that the deposition of a witness taken on commission is to be wholly suppressed for the reason that there has been a failure to answer fully all the impertinent and immaterial interrogatories that the ingenuity of counsel may suggest. The ninth cross-interrogatory required Oltman to answer as to the business in which, after May, 1850, Martin and Valton were engaged, of whom they bought, and to whom they sold, to state the names of both, and what they bought and sold. Oltman had answered, to previous interrogatories, that after May, 1850, the firm of Valton, Martin & Co. were engaged in the grocery and commission business in Albany ; that in July, 1860, he first went into their employ as porter, remaining until the. latter part of Au- gust ; that this was the first he knew of the firm, that he was then in New York until the forepart of September, and until after tlie death of Schumacher, when he returned to Albany, and remained in the employment of the firm as porter until March, 1851* He was then inquired of as to the business Martin and Valton were engaged in after May, 1850, and required not only to describe this, but to name the persons of whom they bought and to whom they sold. His answer was that he knew nothing of the busi- ness of the firm until after the forepart of July, 1850. As the interrogatory was of the most comprehensive character, it is not probable that it could have been answered fially by anybody, much less by a mere porter in the store of Valton, Martin & Co. But he might have stated that he had no knowledge respecting the names of those with whom the firm dealt, or all or any of the articles which they bought or sold. But it is said because this was not done that the answer was palpably and intentionally DECEMBER, 1854. 41T Valton V. National Loan Fund Life Assurance Society. evasive of proper and material interrogatories, (not that there was a refusal to answer,) and that the court should have adjudged such intention and suppressed the deposition. But I do not think so. The business in which Valton & Martin were engaged after May, 1850, so far as it came under the knowledge of the witness, had been previously given, and he had already stated that he knew nothing of it until July, 1850, nor after March, 1851. It was in no sense pertinent to the issues to be tried, to know with whom Valton & Martin dealt, or the names of their customers, or to have a specification of the articles which they bought or sold. Besides, if material, these were matters purely collateral arjd incidental, and in no manner affecting the main point of Oltman's testimony, and which could without diffi- culty be proved by other witnesses. But the whole interrogatory was impertinent and immaterial. It was not a ground of defence in the action, either made so by the pleadings or proof, that though Martin and Valton pretehded to be engaged as liquor dealers, their real business was to practice a fraud upon the defendants. Tlie whole proof showed that there was no doubt as to the kind of business in which they were engaged ; and if Martin and Valton had contemplated this as a mere show, and kept up the farce for eight months after the liability of the defendants had been fixed, if liable at all, it could have been no defence, unless Schumacher had been shown to be connected with the plot to defraud. What Mar- tin or Valton contemplated or pretended, or what business they were engaged in, apart from Schumacher, was of no importance. Indeed, it was not at all material with whom the firm dealt, or what, particularly, they bought and sold. These inquiries could have no bearing upon the question of a conspiracy upon the part of Valton, Martin & Co. to defraud the defendants by procuring the policy, and then murdering or secreting Schumacher, that the surviving conspirators might enjoy the fruits of the diabolical fraud.. Had Oltman been on the stand and an interrogatory respecting Martin and Valton alone, so general in its character, and extend- ing beyond the period of Schumacher's alleged death, been pro- pounded to the witness, I do not think upon his refusing to answer more fully than he did, that I should have been justified in striking out the whole of his testimony. It would have been an unsatisr factory reason for depriving the plaintiffs, of the testimony of one of their witnesses because of a refusal to answer an interrogatory 27 418 SUPEEME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. as to matters having' no direct bearing upon the issues on trial. But still less satisfactory would be the reason, where, as in this case, there was no direct refusal, and whether the witness mistook the tenor of the inquiries or intentionally evaded answering was not clearly apparent. I cannot bring my mind to the conclusion that there was any error in refusing to suppress the deposition, that should constrain us to grant a new trial. 2. The agent of the defendants at Albany, and through whom the policy was procured, was put upon the stand as a witness for the defendants, and among other things, testified that on the 7th of September, 1850, he heard of Schumacher's death ; that Martin told him there was a person at the store that could tell him all about it ; that he accompanied Martin to the store and saw Olt- man, and asked him how the death occurred. The defendants then offered to show, by the witness, what Oltman said, in the presence of Martin, about the death of Schumacher.' The plaintiffs objected to the evidence of Oltman's declarations, and the objection was sustained. Upon what principle they were entitled to the declara- tions of Oltman, or to the details of a conversation between their agent and Oltman, the plaintiffs did not inform the court on the trial ; and so little confidence had they in the exception, they did not even urge it as a point to be considered on this motion. They had neither attempted nor laid any foundation for impeaching the witness by showing contradictory statements made by him as to a material fact. Oltman had not been interrogated respecting the conversation at the store of Valton, Martin & Co. My brother Harris is mistaken in supposing that Oltman had been fully inter- rogated as to what he had said on that occasion. After the oft'er was excluded, the defendants' agent testified that on the afternoon of the same day, Oltman went with him to an attorney's office, and he was there from an hour and a quarter to an hour and a half; and on his cross-examination he stated that the attorney questioned Oltman first, and then his brother'took it up ; he (Lacy) took minutes of his testimony, and so did the attorney, and he (Lacy) saw those minutes only a day or two before the trial. In the eleventh cross-interrogatory, Oltman had been asked if he did not make to Lacy or the attorney a statement of the occurrence, and the twelfth cross-interrogatory was directed to some of the particulars of the statement made at the attorney's office. To this DECEMBER, 1854. 419 Valton V. National Loan Fund Life Assurance Society. he answered that he did not know what he had stated to them. Oltman, in answering the eleventh interrogatory, said that he first saw the defendants' agent in the store of the firm ; that he asked him some questions, and then told him he was going to take him before the insurance company for examination ; and he did take him to the attorney's office; but Oltman did not attempt to state the conversation at the store, or declare his want of recollection of the questions propounded to him on that occasion, or the answers given. Indeed, from the form of the offer it is quite apparent that the defendants' counsel supposed that the evidence was admissible, not because a foundation had been laid by previous interrogation of Oltman, to show that he had made contradictory statements, but because Martin was present at the time the declarations were made ; and they did not even offer to show that Martin heard the conver- sation, or that though present, he must, from his position, neces- sarily have heard it. The offer was in the most general form, and nothing was stated to show the relevancy of the proposed proof. Under such circumstances, I cannot see that there is a reasonable ground, now, for imputing error in excluding the offered evidence of Oltman's declarations. Fairchild v. Oase, 24 Wend. 381, 384. 3. The defendants' counsel submitted eleven distinct proposi- tions, with the request to charge each as proposed. The court re- fused to charge upon all the propositions in the form presented, except in respect to the first proposition. The fourth request was that if the jury should find that Martin and Valton, or either of them, procured or paid for this policy for their or either of their benefit, though with the assent of Schumacher, then the policy was void, as being . a wager policy. This the judge declined to charge, and I think he might safely have put his refusal upon the ground that there was no question of the kind in the case. The answer of the defendants did not allege or set up any matter or thing, showing the policy to have been void under the statute against wagers ; nor was it pretended that Martin and Valton, or either of them, procured or paid for the policy for their benefit, with the assent of Schumacher ; even if the proof of those facts would have made it a gambling or wagering policy within the stat- ute. There was no proof except a feeble effort of the defendants' agent, evidently thought of long after the transaction occurred, to give it such a coloring that Martin or Valton, or either of them, were the persons really effecting the insurance, and not Schuma- i20 SUPREME COURT OF NEW YORK. ^ - ~ -^ Yalton 1). National Loan Fund Life Assurance Society. cher, or that Schumacher was put forward by Martin as the mere instrument through whom the statute against wagers might be evaded. Even this effort conflicted with all the other evidence in the case, written or unwritten, with the acts of the defendants, and even of the agent himself. There was no sufficient evidence to warrant the jury in finding that either Martin or Valton» witli the assent of Schumacher, procured ^e policy for the exclusive benefit of either. Indeed, the evidence showed a state of facts directly- hostile to this theory. Schumacher was the person with whom tlie defendants contracted, and the legal presumption is that the policy was for his benefit, and not for that of any other person. He had an insurable interest in his own life. No use by liim of the policy, subsequent to the contract of insurance, oould convert it into a wager policy. If valid in its inception he might dispose of it as he pleased. I do not understand that there can be a wager policy within the statute, unless .the contract of insurance is made with a party who has no insurable interest in the life insured ; and that the term can never apply when the policy is issued to the party whose life is insured, and when thus the contract is made directly with him. Peake's Nisi Prius Cases, 150. Gfodsall v. Boldero, 9 East, 72. Lord v. Dall, 12 Mass. 115.^" Schumacher being tlie person with whom the defendants dealt, (and tliey assumed nflt to deal with any other,) he had confessedly an Insurable interest, and no arrangement for the future disposition of the policy, made with a third party either before or after it was obtained, certainly not afterwards, could make it a wager policy. Martin or Valtoii might have contemplated the securing of a subsequent interest in the policy, but if Schumacher was at all interested at the inception of the contract, such contract could not be void, for the reason that the statute against wagering had been violated. Schumacher, at the time the policy was procured, may have possessed but small means ; Martin may possibly have advanced the money for the payment of the fivst premium, but if it were so, the defendants contracted with Schumacher ; he was exclusively the party insured. The policy was made in whole or in part for his benefit. It was optional with him whether Martin or Valton should ever have any interest in it ; and indeed, by subsequent arrangement, tliey wene excluded from all interest, except upon the happening of the con- tipgency of Schumacher's dying immacried, during the continiv- 1 Ante, 164. DECEMBER, 1854. 421 Valton V. National Loan Fund Life Assurance Society. « . . ance of the copartnership. It was manifestly, therefore, no wager poUcy. To have made it such, Martin or Valton, without any pe- cuniary interest in Schumacher's life, must have insured it for their exclusive benefit ; and it is even doubtful — the policy not having been issued to or the contract made with them — whether the de- fendants could avoid this contract upon the ground that it was pro- hibited by the statute against wagers. In the case of Wainewright V. Bland, 1 Mood. & Rob. 481 -,8.0.1 Meeson & Welsby, 32, the policy was issued in the name of Helen F. P. Abercronibie, who was an orphan, and resided with the plaintiff, a near rela- tive. Her only means of subsistence was an annual pension of ten pounds. At the trial it clearly appeai'ed that the policy was ef- fected by her by the persuasion and for the benefit of the plaintiff and his wife, who was the half sister of the assured ; and that the premiums were paid by the plaintiff. At her first attendance at the company's office with Mrs. Wainewright, she represented that the insurance was intended to secure a sum of money to her sister, which she should be able to do if she outlived the term of two years ; and that on being asked by the actuary whether she had effected insurances with any other office, she answered, " I wish to insure £5,000, but as your office only takes £3,000, 1 shall pro])Ose £2,000 to some other office." It was proved that she had previ- ously effected insurances with various offices, all of them for a pe- riod of two years only, to the amount in the whole of £11,000. On being informed subsequently by the actuary that the directors were much displeased at her not answering his former question in a straightforward way, she said, " I know very little of the busi- ness myself; I do as my friends direct me." She died suddenly some two months after effecting the insurance, having by her will bequeathed the benefit of her policies to her sister, and appointed the plaintiff her sole executor. The plaintiff, as her executor, swore her personal property not to exceed £100 ; and it was proved that she was in fact in indigent circumstances, and without the means of paying the premiums. Lord Abinger left it to the jury to say, first, whether the assurance was effected by the de- ceased lona fide for her own benefit, or as the agent of Waine- wright ; secondly, whether the false representations made by Miss Abercrombie related to a matter material to be known by the de- fendants as insurers. The jury found that she effected the insur- ance as the plaintiff's agent, and for his benefit, and that the falsi? 422 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. « representations were on material points ; and a verdict was there- upon entered for the defendants. On the motion for a new trial, in the court of exchequer, the rule was refused on the ground that the policy was avoided hy the false representations, both Lord Ab- inger and Parke, B., conceding there was doubt on the other point. So that in a case baldly showing that the insurance had not been effected bona fide by the person whose life was insured for her own benefit, and where the jury found that she acted in obtain- ing the policy, not for herself, but as the agent of another, and for his benefit, it was doubted whether the policy was thereby avoided. The court was unwilling to rest its decision on this ground, or to hold that a person cannot insure his own life for the benefit of an- other who has no insurable interest, and who himself pays the pre- mium ; or that a contract made and a policy effected under those circumstances, falls within the statute against wagers, and that such a contract and policy may be avoided. Our statute does not define what shall be a wagering policy, but in terms inhibits courts from construing it so as to include within its operation " insurances made in good faith for the security or indemnity of the party in- sured," and that the section declaring void " all contracts for or on account of any money or property or thing in action, wagered, bet, or staked," might not receive too enlarged a signification, expressly, by a succeeding section, provides that it shall not be extended so as to prohibit or in any way affect insurance contracts made in good faith, for the security or indemnity of the insured party. The statute nowhere declares that only insurance contracts of the lat- ter description shall be valid. The mischief against which it was exclusively aimed was wagering, "made to depend upon any gam- ing by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever." 1 R. S. 662, §§ 8, 10. It is only when an insurance contract falls within the category of a mere wager or bet — a simple gaming adventure — that the statute can even by construction apply. It is a question of legal construction always, whether an insurance contract comes within the purview of the statute against betting and gaming. Courts have held that where A insures the life of B, having no pecuniary or other in- surable interest in such life, it is a gaming transaction merely, and being forbidden, any contract for or on account thereof is void ; but it has never been adjudged, (at least no such case has come under my knowledge,) that where a party insures his own life, DECEMBER, 1854. 423 Valtou V. National Loan Fund Life Assurance Society. even for the benefit of another, the latter advancing the money to pay the premium, such contract is void for the reason that the stat- ute against betting and gaming has been violated. Nor have I ever before heard it pretended that the insurer could avoid his con- tract made with the person whose life was insured, and who had an unquestionably insurable interest, because the latter chose to insure for the benefit of a friend, even though that friend advanced the premium, and may have urged the making of the contract ; and this too upon the ground exclusively of an alleged evasion of the statute against wagers. In Lord v. Dall, 12 Mass. 115,^ a brother contracted with an underwriter, giving his own note for the premium, and took the policy in the name of his sister, and for her benefit. She was a person of no property, and at the time of the insurance was entirely dependent for subsistence on her brother. Yet it was not pretended that the policy was void for the reason that it was procured and paid for by the brother. But a question was raised, which was one of law purely, whether she had an in- terest in the subject matter insured, else otherwise, as was said by the court, it would be a mere wager policy. It is to be observed that in the case at bar the fact was assumed by the defendants' counsel that Martin and Valton had no insurable interest in the life of Schumacher, (an assumption not sustained by the evidence,) and assuming this, the judge was asked to instruct the jury that if they should find that they, or either of them pro- cured or paid for this policy, (that is, the one on Schumacher's life, and which the evidence of the defendants showed that he had ap- plied for and obtained,) for their or either of their benefit, though with the assent of Schumacher, then the policy was void as being a wager policy. The request was, substantially, that the judge should charge the jury that either the procurement of the policy by Martin and Valton, for their benefit, or the payment of the pre- mium by them, with the assent of Schumacher, constituted the policy which had been applied for by and issued to the latter, a wager policy, and rendered it void. In the face of the defendants' own evidence that Schumacher applied in writing for the policy, that it was issued to him, and that the defendants receipted the premium as being paid by him, I was asked to submit the question of fact to tlie jury whether Martin and Valton, or either of them, had procured or paid for the policy for their joint or separate ben- 1 Ante, 154. 424 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. efit, there being no evidence whatever connecting Valton with its procurement, and none really connecting Martin, except the fact alleged by the defendants' agent, that Martin originally suggested the insurance, and accompanied Schumacher when the application was made, and when he was examined by the defendants' examin- ing physician. And, further, I was asked to allow the jury to spec- ulate on the question whether Martin and Valton did not really pay the premiums, because the defendants' agent had sworn that Mar- tin had handed him the money, and a hotel keeper had testified that Schumacher proposed at one time in New York to have Val- ton become responsible for his board ; though it was shown that the premium for the second quarter, which Lacy testified that he understood had been left at his house by Martin in his absence, had come from Schumacher himself. And, further, permitting the jury to roam in the region of conjecture and speculation, should they finally conclude that the whole thing was a device of Martin and Valton to obtain an insurance upon Schumacher's life, with his as- sent, for their benefit, I was to instruct them that the policy issued to Schumacher was in law a wager policy, and being void, their verdict must be for the defendants. Either the procurement of the policy or the payment of the premiums, if they or either of them contemplated a benefit from the insurance, according to this theory, made the transaction a forbidden wager, and the instrument issued to Schumacher ipso facto a wager policy. My brother Harris is not inclined to go to the extent of holding that in law it would be what has been heretofore denominated a wager policy ; but he thinks the transaction would be palpably an attempt to evade the statute against betting and gaming, and for that reason the jury should have been told that the policy was to be avoided. But if this were the law, (of which I entertain grave doubts,) I was not requested thus to instruct the jury. If the question had been upon an evasion of the statute, there would have been still a further question of fact for the jury to find, viz : an intention of the as- sured to evade it. The policy issued to Schumacher, and upon which the action was brought, was in no legal sense a wager policy. Nor, had the jury found the facts that it was issued to Schumacher by the pro- curement of Martin or Valton, for their exclusive benefit, or that the premiums were paid by them, would it have been invalid. Be- sides, there was no competent evidence in the case to sustain such DECEMBER, 1854. 425 Valton V. National Loan Fund Life Assurance Society. a finding, or to justify the court in submitting the question of an attempt to evade the law against wagers. No such issue was made by the pleadings, and none such was tried. It is quite probable that Schumacher, at the time of effecting the insurance, was pos- sessed of but httle means. It required but little, as the quarterly premium was less than seventy dollars. It may be that Martin urged the making of the contract, and aided in its successful com- pletion ; but after all, the insurance was effected by Schumacher, not as the agent of Valton & Martin, and for their exclusive bene- fit, but for the benefit, in part at least, of the party whose life was insured. It is not very difficult, from the evidence, to discover the motive which induced the making of the contract. Martin, Val- ton, and Schumacher proposed to form a partnership in the busi- ness of liquor dealers. The two former alone possessed capital to any extent ; but Schumacher's services were required, as he was skilful in what is termed mixing liquors. He, though advancing no capital, was to share equally in the profits from the beginning. In lieu of capital, and as a security or indemnity to his copart- ners, an insurance was effected on his life ; and with the under- standing that if he should die, unmarried, during the continuance of the copartnership, the benefit of the policy should go to the survivors of the firm. Martin and Valton were men witli families ; Schumacher was single. If he married, his copartners were to take no benefit from the insurance. He was young and healthy, and, as the defendants' examining physician certified, " a good risk," and one which he recommended them to accept. The defendants' agent was eager to obtain the risk, and abated not a jot, though believing Schumacher, from his dress and demeanor, to be the por- ter, and not a partner in the firm. The defendants took the risk, and received the first quarterly premium. In August, 1850, an- other premium was received, which extended the policy to the 15th of November, 1850 ; and there is no reason to suppose, from the conduct and acts of the agent, that had Schumacher survived to the latter period, there would then have been any attempt to repu- diate the contract, or that he would not have receipted the pre- mium, then payable by its terms. But Schumacher, as was al- leged, was drowned in September, 1850, and while the policy was in force ; and from thenceforth the defendants refused to perform their contract, doubting the death of Schumacher, but if dead, al- leging as a principal reason for refusal, not that it was a wager pol- 426 SUPREME COURT OF NEW YORK. Valton V. National Loan Fond Life Assurance Society. icy, or that the statute against wagers had been intentionally evaded — not that in fact it was the policy of Martin and Valton, though issued to Schumacher, and hence void in its inception ; but that it had been procured by fraud. The jury found that Schu- macher was drowned in September, 1850, and that the policy was not procured by fraud. They found in favor of the plaintiffs upon all the issues made by the pleadings. That verdict is not against evidence, and though the amount in controversy be large, the de- fendants should be held to their contract. No vague suspicion of unfairness should induce a struggle on our part, after the issues of fact have been adjudged in favor of the plaintiffs, to search out some legal " loop-hole " through which the defendants may get the case to another jury. With anxious desire to correct any error of law that I may have committed on the previous trial, I have not been able to persuade myself that those suggested by my brother Harris were errors. I shall therefore vote for denying a new trial. Watson J., concurred. Harkis, J., dissenting. This case is characterized by a degree of novelty far beyond anything of the kind with which I have be- fore met. Some of the circumstances are so strange indeed, that they demand the most active scrutiny. The principal actors, Val- ton, Martin, Schumacher, and Oltman, were all Germans. About the 1st of May, 1850, Valton, Martin, and Schumacher made their appearance in Albany, and pretended to engage in the liquor busi- ness as copartners. Martin had indeed made application for a policy of insurance for $10,000 upon the life of a friend of his partner as early as February or March in that year, but where he then resided, or how he came to make the application, does not appear. Of the previous history of the parties we learn but httle from the case, and that, chiefly, from the testimony of Oltman. Valton, who had been a tanner, and at one time had kept a tavern in Germany, came to New York in January, 1848. He lived with his son-in-law, who kept a grocery and liquor store in New York, doing nothing. Martin, according to Oltman's testimony, had travelled in Germany, taking orders for liquors, cigars, &c. When he came to this country does not appear, but Oltman speaks of hav- ing seen him in New York three years before the trial. He told DECEMBER, 1854. 427 Valton V. National Loan Fund Life Assurance Society. Oltman that he lived in the upper part of New York and sold liquor, but Bussing, Valton's son-in-law, says that he had lived in New York eight years, and that during that time Martin had not been in business there. Schumacher, it seems, was from Bremen. Oltman says he knew him there more than twelve years ago. He saw him often " at the public houses, nights," but never at Jiis place of business, though he thought he was clerk or bookkeeper in a wine store. He told Oltman that he came to this country ten years ago, but where he had been, or how he had been employed, we are not informed. The first we hear of him in America is, when he made his appearance in Albany in May, 1850, as a mem- ber of the firm of Valton, Martin & Co. The account which Olt- man gives of himself is, that in Germany he had been a clerk in a court of justice, and when travelling he mixed liquors. He came to this country late in the year 1849, and was without employment until March following, when he hired himself to a farmer on Long Island for a year, at five dollars a month. His employer says he found him a little tricky, and on the 1st of July he left and came to Albany, and became a porter for the firm of Valton, Martin & Co., receiving wages at tlie rate of $15 per month, and boarding with Martin. He left Albany in March, 1851, and went to Mil- waukee. From that time to September, 1852, when he was exam- ined upon commission, at La Porte, in the State of Indiana, he had been drifting about, remaining but a few weeks in any single place, and without any steady employment. Whether any of the parties had any money when the business was commenced at Albany, does not appear. The articles of co- partnership do not require either party to furnish any capital, and there is no evidence that any was in fact contributed. Mr. Tracy, of whom they hired their store, at a rent of $250, and whose place of business was opposite theirs, says that they appeared to be doing a limited business. He had dealings with them to the amount of five or six hundred dollars, selling them goods upon a credit of three months. Mr. Lacy, whose office was also opposite the store, had his attention frequently directed to it, and saw that little or nothing was going on there. He saw a few barrels lying there, and occa- sionally saw Schumacher go out with demijohns and baskets of liquor. That three partners, engaged in sucli a business, should require the services of a man like Oltman, as a porter, especially when Schumacher, according to the evidence, continued, as well 428 SUPREME COURT OF NEW YORK. Yalton V. National Loan Fund Life Assurance Society. afterwards as before, to act as the porter of the establishment, is a little remarkable. Valton spent much of his time in New York, and the only business in which Martin is shown to have been en- gaged was that of obtaining and securing for the benefit of himself and Valton this large policy upon the life of Schumacher. When Schumacher finally left Albany, or under what circum- stances he left, the case does not disclose. Bussing speaks of hav^ ing seen him at his store several times — he mentions three or four occasions — between the latter part of May and the middle of Au- gust. That he was destitute of money appears from the fact that when, on the 23d of August, he went to the Shakespeare Hotel to board, he proposed to pay for his board in advance, as he had no baggage, and said he would fetch the money from his boss, referring to Valton. That he had been staying in New York before he went to the Shakespeare Hotel, appears from the fact that the letter which purported to inclose to Martin the second quarter's premium upon his policy, bears date, and was postmarked in New York two days before. Nor is it very likely that he would have had occasion to send back such a letter, if he had himself but just before left Al- bany. What he was doing all this while in New York does not in any way appear, except that Oltman says he told him he went to New York to procure a store for the firm. That this was in fact his business, there is not much reason to believe. There is no evi- dence that the firm contemplated either a removal to New York, or the establishment of a branch of their business there. And, besides, Valton was already there, and had been for a considerable part of the summer, and if a store was desired, he would have been, it would seem, quite competent to obtain it. Again, it is a little singular that when Valton and Schumacher were both in New York, Oltman too should take occasion to go, and remain there for sevei-al days. He says he went to look for a friend that he heard was to be there. Whether that friend was Schumacher does not appear. At any rate, he was so fortunate as to find him standing upon the wharf, upon the arrival, and we hear nothing more of any other friend. And, then, the incidents con- nected with the drowning, as they are related by Oltman, are mar- vellously strange. The ver'y proposition of Schumacher to go a-fishing, at such a time, and in such a place, and under such cir- imnstances, is strange. The account given by Oltman of the manner in which the accident occurred, is strange. The conduct DECEMBER, 1854. 429 Valton V. National Loan Fund Life Assurance Society. of Oltman afterwards is strange. It is strange, that though he afterwards went to the man of whom the boat was hired to know if he had obtained it, he should be entirely unable to give any in- formation either as to his name or residence, so that he may be found. It is strange, too, that after the body alleged to be that of Schumacher was found, there was no one to identify it but this same witness Oltman. It is a suspicious circumstance, too, that Martin, after having sold out his interest in the policy to the plaintiff Adams, should have disappeared, and that no one, neither Bussing nor Oltman, should know what had become of him. He might have been a most material witness in the case. There are many circumstances which need explanation, and which might, perhaps, have been explained by him, if the transaction was entirely fair. But the evidence was fairly and properly submitted to the jury, and their verdict upon the question of fraud is conclusive. The application for a new trial must, therefore, be denied, unless some error has been committed, either in the admission or rejection of evidence, or the refusal of the judge to charge as requested by the counsel for the defendants. I proceed, therefore, to notice some of the exceptions taken upon the trial. By the first cross-interrogatory, the witness Oltman was required to state what was his occupation before he left Germany, and whether he pursued one, or more, and with whom and where he lived. He was also required to describe each occupation particu- larly, and the places where, and the persons with whom he had pursued it. The only answer to these inquiries is, that his occu- pation before he left Germany was that of a clerk in a court of justice ; that he lived with his mother in Ovelegonne ; that he sometimes followed the mixing of liquors in Ovelegonne and in Bremen ; that he did not recollect the names of the persons for whom he mixed liquors — he did it when travelling. The ninth cross-interrogatory required the witness to state what was the business in which, after May, 1850, Martin and Valton were engaged, and of whom they bought, and to whom they sold, and what they bought and sold. To this his only answer was, that he knew nothing of their business until after the forepart of July, 1850. Both these interrogatories were pertinent. The witness was a stranger and a foreigner. His testimony was of vital importance in. the case. His story, which must be believed or the action must 430 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. feil, was such as would not be likely to be believed without full confidence in his integrity. The plaintifiFs, instead of bringing him into court, had chosen to examine him upon commission, in a remote part of the country. Under these circumstances, it was the right of the defendants to have all the tests of credibility within their reach applied to him. It was natural and peculiarly proper that they should inquire into the history of his life. They were entitled to a ftiU and explicit answer to each inquiry. This they did not receive. When called upon to state what his various occupations had been, and to describe each particularly, and the places where, and the persons with whom such occupations had been pursued, the only answer is, that before he left Germany lie was clerk in a court of justice, and that he sometiaies followed the mixing of liquors, &c. These answers are evasive and unsatisfactory. They furnish no aid in determining what the life of the witness had been, or what really had been his pursuits. The answer to the ninth cross-interrogatory is still more objec- tionable. The witness had been in the employ of Valton & Martin from the forepart of July, 1850, until March, 1851. As appears from the case, he was the only person in their employ. The ground of defence in the action was, that though Valton, Martin & Co. pretended to be engaged in business as liquor dealers, their real business was to practise a fraud upon the defendants. Under such circumstances, they had a right to a full and direct answer to the inquiry of whom Valton & Martin bought, and to whom they sold, and what they bought and sold. The inquiry embraced the whole period in which they were engaged in busi- ness, after May, 1850. The answer is palpably evasive. It was proper enough for the witness to state that he had no knowledge in respect to the business prior to the forepart of July, but that certainly was no reason why he should be excused from stating what he knew about it after that date. Had the witness been upon the stand at the time, the presiding judge would not have hesitated to require him to answer the interrogatories more fiilly. If he had refused, the whole of his testimony might have been stricken out. The rule in respect to the examination of witnesses upon com- mission is, that the witness must answer all the interrogatories svi- stantially. A failure to do so is fatal to the whole deposition. •The reason of the rule is obvious. Where a witness has assumed DECEMBER, 1854. 431 Valton I!. National Loan Fund Life Assurance Society. to withhold his answer to a part of the iuterrogatoines, the fair in- ference is that the commission has heen imperfectly executed, or that the deposition does not contain the whole truth. It is no hardship upon a party that, when he is excused from bringing a witness into court, so that he may be cross-examined in reference to his answers upon his direct examination, he should at least be required to obtain from him full and explicit answers to such inter- rogatories as may be prepared for his cross-examination, before he testifies. See Kimball v. Davis, 19 Wend. 437 ; Brown v. Kim- ball, 25 Idem, 259 ; Smith v. Griffith, 3 Hill, 333. It is a ques- tion to be determined upon the trial, whether the witness has omitted to answer any material interrogatory. If he has, the deposition is to be rejected, on the ground that the witness has not told the whole truth. I think the objection in this case was well taken. Upon the issue of fraud, it was clearly pertinent to ascer- tain the natui-e and extent of the business in which Martin and Valton were engaged. These were matters peculiarly within the knowledge of the witness. Appropriate interrogatories were framed to call out such knowledge, and yet the defendants have entirely failed to obtain any answer upon the subject. The com- mission must, therefore, be deemed to have been imperfectly exe- cuted. I think, too, the defendants should have been permitted to show what Oltman had said in relation to the death of Schumacher. He was the only witness to prove the strange circumstances con- nected with that event. He had been asked in the eleventh cross- interrogatory, whether he had made a statement of the occurrence to Mr. Lacy, and in the twelfth interrogatory, whether he had stated to Mr. Lacy that they were not fishing when Schumacher fell overboard, or that he fell overboard in a fit,' or that the witness fell overboard also, or that he knew that Schumacher's life was insured, or that Valton had told him so, or that Schumacher had left Albany and gone to New York to look for a place to keep a store, or that Schumacher when he was drowned had on yellow nankeen pantaloons. To all this the witness had answered merely that he did not know what he had stated on the subject. Mr. Lacy, being examined as a witness for the defendants upon the trial, stated that on the 7th of September Martin came to his office and informed him of the death of Schumacher. Upon asking him how he ascertained it, he said there was a person at his store who 432 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. could tell him all about it ; that he went with Martin to his store, and there saw Oltman ; that he asked him how the death occurred. I cannot see why it was not competent for the defendants to shc^ by Lacy what Oltman then said on the subject. Martin, who was then a party in interest, had referred to Oltman for information on the subject. He was present when the statements were made. Oltman had been fully interrogated as to what he had said on that occasion, and to the whole he had simply answered that he did not know what he had said. The foundation had thus been laid for the admission of any contradictory statements which Oltman may have made when giving to the witness Lacy an account of the cir- cumstances, immediately after the death was alleged to have oc- curred. I think the learned judge erred in excluding the evi- dence. It was insisted upon the trial that the evidence warranted tiie jury in finding that, though the policy was taken in the name of Schumacher, yet it was in fact the policy of Valton & Martin, or one of them. The defendants' counsel accordingly asked the judge to charge the jury that if they should find that Martin or Valton, or either of them, procured or paid for this policy, for their own benefit, though with the assent of Schumacher, it was void, as being a wager policy. I am inclined to think the defendants were entitled to have the jury so instructed. Val- ton and Martin had no such pecuniary interest in the life of Schumacher as would entitle them, for their own security and in- demnity, to insure his life. A policy taken in the name of either or both of them would have been void as a wager policy. 1 R. S. 662, §§ 8-10. They could not, by merely obtaining the use of Schumacher's name, accomplish indirectly what they could not do directly. If the policy, from the first, really belonged to Valton & Martin, or one of them — if in fact Schumacher never had any interest in it, then it was but an attempt to evade tlie statute against wagers, to take the policy in the name of Schumacher.. I am inclined to think the jury would have been warranted in finding that this was so. According to the testimony, Martin was the only man who ever interested himself to procure the policy. Long before Schumacher came to Albany he had applied to the defendants' agent for a policy of 110,000 on the life of a friends It was he that applied for the preliminary papers. It was he that answered the objections made by tlie agent, and again by the ex- DECEMBER, 1854. 433 Valton V. National Loan Fund Life Assurance Society. amining physiciEtn, to the taking of such a risk. It was he that, on both occasions, paid to the agent the premium of insurance. From first to last the whole transaction seems to have been under his special management and supervision. Indeed, by the very terms of the articles of copartnership it was only in case of a disso- lution of the partnership before the death of Schumacher, or his marriage, that he could have any interest in the policy. Under these circumstances the jury might well have found that the whole thing was designed for the exclusive benefit of Valton & Martin ; that the premiums were in fact paid by them for their own benefit, and that the pretence that money had been forwarded from New York by Schumacher to pay the premium for the second quarter, when he was shown to have been so destitute that he was obliged to obtain money from Valton to enable him to pay four dollars for a week's board, was only designed to conceal the more effectually the real transaction. Whethepa person can insure his own life for the benefit of another who has no insurable interest and who himself pays the premiums, is a question which has not been adjudged. It came before Lord Abinger twice at the circuit, in WainewrigTit v. Bland, 1 Mood. & Rob. 481 ; 8. (7., 1 Mees. & Wels. 32, but upon the review of the case the motion for a new trial was decided with- out touching this question. In that case the policy was in the name of Helen Frances Phebe Abercrombie. She was an orphan of the age of twenty-one years, and resided with the plaintiff who was a near relative. Her only means of subsistence was an annual pension of ten pounds. In October, 1830, she had, in company with the plaintiff's wife, applied for and obtained the policy in question. She had previously obtained other policies, in all amount- ing to £16,000, the annual premium upon which was £200. The money to pay the premium was lent to her by the plaintiff. She died in December after she had obtaihed the policy, leaving a will by which she appointed the plaintiff her executor. It was proved that shortly before her death she had assigned two other policies to the plaintiff for a nominal consideration. Evidence was also given to show that misrepresentations were made at the time of obtaining the policy in relation to other insurances, and the object in effect- ing the insurance. . Lord Abinger charged the jury that the ques- tion in the case was, who was the party really and truly effecting' ithe insurance. Was it the policy of Miss Abercrombie, or was it 28 434 SUPREME COURT OF NEW YORK. Talton V. Kational Loan Fund Life Assurance Society. substantially the policy of "Wainewright, the plaintiff, he using her name for his own purposes ? If it was the policy of Miss Aber- crombie, effected by her for her own benefit, her representative was entitled to put it in force. The plaintiff might lend her the money to pay the premium and yet the policy continue her own. But if, looking at the strange facts which had been proved, the jury should come to the conclusion that the policy was in reality effected by the plaintiff, that he merely used her name, himself finding the money, and meaning, by way of assignment, or by be- quest, or in some other way to have the benefit of it himself, then the transaction would be a fraudulent evasion of the statute, and their verdict should be for the defendant. The judge then pro- ceeded to submit to the jury the further question as to misrepre- sentations, and concluded by saying that the main question was whether the policy was bona fide the policy of the deceased; that if it was, and no material fact was concealed from the underwriters, the verdict should be for the plaintiff; otherwise for «the defend- ants. The jury having disagreed, the cause was again tried before the same judge. He recommended the jury to find a verdict for the defendants if they thought the policy was really and substan- tially the policy of Wainewright, the plaintiff, he putting forward Miss Abercrombie as a mere instrument, and effecting the, policy in her name with the design of getting the benefit of it himself, either by will or assignment or by some other means ; or if they thought the misrepresentations as to the motive of the assured in effecting the policy, or as to the policies already effected, were mis- representations of facts material to be known by the insurers. The jury found a verdict for the defendants, and added that they were of opinion that the policy was substantially the policy of Wainewright himself, and also that the misrepresentations were of facts material to be known by the insurers. Upon the motion for a new trial Lord Abinger himself, and Parke, B., both said there might be some doubt upon the first point ; but, without giving any opinion upon this question, the verdict of the jury was sustained upon the point of misrepresentation. The question, therefore, cannot be regarded as having been de- termined by express adjudication. But it seems to me to be within the plain meaning of the statute and obviously within the mischief contemplated by the legislature. The object of the statute was to prevent wagering and speculative policies by third persons having DECEMBER, 1854. 435 Valton V. National Loan Fund Life Assurance Society. no interest in the subject of insurance. " Insurances made in good faith for the security or indemnity of the party insured," are alone declared to be valid. If this policy was, in the language of Lord- Abinger, really and substantially the policy of Valton & Martin, or one of them, they putting forward Schumacher as a mere instru- ment, and effecting the policy in his name with the design of get- ting the benefit of it themselves, the contract is not within the exception of the statute protecting insurances made in good faith for the security or indemnity of the party insured. There was neither security nor indemnity in the case. It was a mere wager- ing policy and within the prohibition of the statute. See 3 Kent's Com. 396, note d. The motion for a new trial on the ground of surprise could not have prevailed. Such a motion is properly made at a special term, as a non-enumerated motion. If the court deem it proper to have it heard with a motion for a new trial upon a case or exceptions, an order may be made to that effect. In this case the motion was made at a special term at the same time the motion was made upon the merits. It is too late now, when the question comes up on an appeal from the order, to insist that the motion was irregular. But upon the merits the motion could not be granted. The defendants' counsel, according to his own statement, instead of requiring the attendance of Adams and Parke by subpoena, thought fit to rely upon the assurance of Adams that he would attend the trial. It is indeed a little singular that both Adams, and Parke, situated as they were in reference to this action, after attending upon the trial two days, should have business which re- quired that they should absent themselves while the evidence was being produced. Such an occurrence was undoubtedly a surprise upon the defendants' counsel. But having failed to put them under legal obligation to attend, they are chargeable with a want of legal diligence, which is a sufficient answer to a motion for a new trial on the ground of surprise. But, for the reasons already stated, I think there should be a new trial. Nor do I regret to find myself brought to this conclu- sion. The novelty of the case ; the mystery that still seems to envelop some of its principal features ; the character and circum- stances of the chief actors in the transaction, and especially the principal witness in the case, all tend to encourage the belief thai 436 COURT OF APPEALS OF NEW YORK. Valton V. National Loan Fund Life Assurance Compamy. the ends of justice may be advanced by allowing the parties to present the facts anew before another jury. Sew trial denied. Note. — The question whict Hareis, J., in his dissenting opinion, states had not been adjudged, — whether a person can insure his life for the benefit of another who has no insurable interest in such life — has since "been directly de- cided in the affirmative, in Campbell v. New England Mut. Life Ins. Co., ante, 229. Upon the general subject of wager policies, see Lord t. iDall, -ante, 154, and note. See this case infra, in the court of appeals, and again, infra, in the supreme court, upon a rule for a new trial. Gerhaet Valton et al. vs. The National Loan Fund Life AssuEANCE Company. (20. N. Y. (6 Smith,) 32. Court of Appeals, September, 1859.) Assignment. — By the articles of copartnership between M., T.,and S., it was provided that in case of the death of S. during its continuance, unniarried, a policy of insurance effected by S. upon his own life should become the property of M. and V. lletd,'thitt this rested the title to the policy, on the happening of the contingency, absolutely in M. and V., and entitled them to sue thereon in their own names. fraudulent representations made by the assured to the insurer upon the latter's application for a policy, though not material to the risk, j'et material in the judgment of the insurer, and which induced him to take the risk, will avoid the policy. Insurable interest. Assignment. — A party who has obtained a policy in his own name has Bright to dispose of it as he will; and it is no defence that the assignee'had no interest in ithe life. The case is stated at length in the report from the supreme court, supra. Senry Nicoll, for the appellants. John K. Porter, for the respondents. Grovee, J. The objection of the defendants' counsel to the in- troduction of the deposition of Frederick Oilman was properly overruled. The ground of objection stated was that the first and ninth cross-interrogatories were answered only in part. These in- terrogatories each contained a large number of questions, and there was an answer given to each of the interrogatories, although some questions contained in each were not answered. The objedtion was too general. The counsel should, tinder such circumstances, Call the attention of the judge to the particnlar question unan- swered, and make his exception equally specific. It is not the dutj SEPTEMBER, 1859. 437 Valton V. National Loan Fund Life Assurance Compaay. of a judge upon the trial of an issue to examine an interrogatory containing a great number of questions for the purpose of learning every question embraced in it, and then examine the answer to the interrogatory to ascertain whether each question is fully answered. As well might a general objection be taken to a deposition upon the ground that all the interrogatories were not answered, without specifying any one. There were in the first and ninth cross-inter- rogatories in this case as many questions as will be found in the interrogatories attached to many commissions. Issues of fact could not be tripd with despatch were such general objections available. When an interrogatory contains general questions it is no hardship to specify the particular question unanswered ; thus at once direct- ing the attention of the judge to the point. He can then readily dispose of it. The exceptions of the defendant to the testimony of Hadly as to the conversations between Valton, Martin, and Schumacher at the time of giving instructions to prepai'e the articles of copartner- ship cannot be examined here. No ground for the exceptions is stated. The rule is settled beyond discussion, that a general ob- jection will be disregarded. The same remark applies to the ex- ception to the introduction of the letter from Schumacher to Mar- tui. The defendants' offer to prove by Lacy what Oltman said in the presence of Martin about the death of Schumacher was properly overruled. The object of the proof was not stated. It was ad- missible only for the purpose of impeaching Oltman by showing a statement contradicting his testimony. To render it competent for this purpose the attention of Oltman should have been directly called to the conversation, and to the time and place of its occur-^ rence, or such other circumstances attending it as would identify the conversation and be likely to recall it to the recollection of the witness, and then he should have been asked directly whether he made the statement sought to be proved. This was not done ; consequently the defendants had no right to prove Oilman's state- ment. The defendants' motion to dismiss the complaint was properly denied. The grounds of the motion were that the articles of co- partnership did not amount to an assignment of the policy to Val- ton & Martin ; and that the policy, so far as the assignees were concerned, was a wager policy and void by statute, the plaintiffs 438 COURT OF APPEALS OF NEW TcORK. Valton V. National Loan Fund Life Assurance Company. showing no claim or debt* against the deceased. By the articles of copartnership it was provided that in case of the death of Schuma- cher during its continuance, unmarried, then the said policy of in- surance, and all benefit and advantage therefrom, and the monev secured to be paid thereby, should become and be the absolute property of the said Gerliart Valton and Daniel Martin. This, in the happening of the contingency, vested the title to the policy ab- solutely in Valton & Martin as against the defendants, and under the Code authorized them to sue for the money payable thereon in their own names. The answer did not set up the defence that the policy was made in contravention of the statute against betting and gaming. This would be a sufficient answer to tlie last ground upon which the motion was based. There was nothing in the evi- dence authorizing the judge to hold that the policy was made in violation of the statute, had the answer interposed that defence. The judge, among other things, cliarged the jury that if the in- sured untruly represented that he was a partner of the firm of Val- ton, Martin & Co., or that if he untruly represented that he was the moneyed man of the firm, and either or both of such untrue representations were material to the risk, then the policy was avoided, and there could be no recovery. That if Schumacher was dead in September, 1850, and his occupation that of a mer- chant at the time the proposals were signed, and the representa- tions of his being a partner or the moneyed man of the firm were either not untrue or not material to the risk, then the action was prima facie sustained. The defendants' counsel requested the court to charge the jury that if Schumacher himself, or by Martin in his behalf, represented to the agent of the defendants that Schu- macher was a partner of the firm of Martin, Valton & Co., when in fact at that time he was not such partner, and if the defendants would not have issued the policy if the representation had not been made, then the policy was void, and the plaintiffs could not re- cover. The judge declined so to charge, and the defendants' counsel excepted. The defendants' counsel also requested tho judge to charge the jury that if they found that Schumacher him- self, or by Martin in his behalf, represented to the agent of the de- fendants that Schumacher was the moneyed man of the concern of Valton, Martin & Co., when in fact at that time he was not such, and that the defendants would not have issued the policy if the representations had not been made, then the policy is void and the SEPTEMBER, 1859. 439 Valton V. National Loan Fund Life Assurance Company. plaintiffs cannot recover. The judge refused so to charge, and the defendants' counsel excepted. The charge of the judge was cor- rect as far as given. If the representations were made and false, the falsity must have been known to Schumacher and Martin. The facts were within their knowledge, and the representations fraudu- lent. The requests to charge, considered in connection with the charge given, present the question whether fraudulent representa- tions made by the assured to the insurer upon his application for a policy, though not material to the risk, yet material in the judg- ment of the insurer, and which induced him to take the risk, will avoid the policy. This question has not been determined by any adjudged case in this state, so far as I have been able to discover. The elementary writers hold that the policy may be avoided. 1 Arnould on Ins. § 189.1 2 Duer, 681-683. 3 Kent, 282. In Sihhald v. Hill, 2 Dow's Pari. R. 263, it was held that when the assured fraudulently represented to the underwriter that a prior insurance by another underwriter upon the same risk had been made at a less premium than it was in fact made, the policy was vitiated. In this case it is obvious that the risk itself was not affected by the representations. Lord Eldon in his opinion says that it appeared to him settled law, that if a peison meaning to ef- fect an insurance exhibited a policy underwritten by a person of skill and judgment, knowing that this would weigh with the other party and disarm the ordinary prudence exercised in the common transactions of life, and it turned out that this person had not in fact underwritten the policy, or had done so under such terms that he came under no obligation to pay, it appeared to him to be set- tled law that this would vitiate the policy. The courts in this coun- try would say that this was a fraud ; not on the ground that the misrepresentation affected the nature of the risk, but because it in- duced a confidence without which the party would not have acted. The principle of this case, when applied to the one under consider- ation, shows that the judge committed an error in refusing to charge as requested. It is clear that the circumstance of a party being engaged in commercial business, possessed of large means, might induce an insurer to make an insurance upon his life for a large amount, while were he a mere porter the risk would be re- jected, although the chance of life would be as good in the latter situation as the former. 1 Original paging, 487-576. 440 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. Although the judgment must be reversed for this error, yet as there will probably be another trial it is proper to add a few words upon another question presented by the case. The defendants^" counsel requested the court to charge the jury that if Martin and Valton, or either of them, procured or paid for this policy for their or either of their benefit, though with the assent of Schumacher, then the policy was void, being a wager policy. The judge re- fused so to charge, and the defendants excepted. It is unnecessary to determine whether, previous to the statute making void all wa- gers, bets, &c. (1 R. S. 662,) an insurance effected by a party upon the life of a person in which he had no interest, was valid. Since the statute, such contract would clearly be void. Upon the trial there was no proof but that Schumacher obtained the policy for his own benefit. If he so obtained it, he had the right to dis- pose of it as he saw fit, and it would be no defence against his as- signees that they had no interest in his life. The judgment should be reversed, and a new trial ordered. Selden and Allen, JJ., took no part in the decision ; all the other judges concurring. Judgment reversed, and new trial ordered. As to misrepresentation, see Campbell v. N. E. Mut. Life Ins. Co. ante, 229, and cases cited. Insurable interest, Lord v. Ball, ante, 154, and note. Valton et al. vs. The National Loan Fund Life Asstjeancb Society. (17 Abb. Pr. 268. Supreme Court, September, 1863.) Questions propounded by medical examiner as to pecuniary circumstances. — The province of the medical examiner is restricted to the duty of ascertaining the sanitary condition of the applicant for insurance; and a question put to him, whether he would not have recommended the rejection of an application, if the pecuniary circumstances of the appli- cant had been truly represented to him, was properly rejected as inadmissible; though it be true that such question addressed to the company's agent would have been admissi- ble. HoGEBOOM, J., dissented. The material question raised in this case was, whether certain questions addressed to the medical examiner, respecting the influ- ence which the representations of the pecuniary circumstances of the applicant for insurance had upon his mind, in recommendiog the risk, were admissible. The case is sufficiently stated in the opinion of the court. SEPTEMBER, 1863. 441 Valton V. National Loan Fund Life Assurance Society. Zn/man Tremain ^ Henry Nieoll, for the appellants. Clark B. Ooehrane ^ John K. Porter, for the respondents. The argument took the same course that it did on the trial in the court of appeals and on the first trial in the supreme court, Bv/pra, 409. The same authorities were cited. Miller, J. The trial of this cause at the circuit occupied con- siderable time, and during its progress many intricate questions were raised and decided. Some of these questions related to the admission and rejection of evidence offered upon the trial. It is the opinion of one of the members of this court, that an error was committed by the justice who tried the cause, in refusing to allow certain questions to be put to the witness Barent P. Staats, the medical examiner of the company at Albany, upon an examination of the applicant prior to the taking of the risk. In that opinion I cannot concur, and propose briefly to examine the questions arising, for the purpose of ascertaining whether any error was committed by the judge in this respect. The witness was examined on the trial in reference to the cir- cumstances attending the medical examination of Schumacher. On his direct examination, he testified generally to his appearance, size, &c. ; and also, that when Schumacher said the amount was $10,000, he replied that he must take off his coat and jacket, and must have a good indorser ; it was a large amount, and he must have a good indorser for so large an amount. That he meant he must have a more thorough examination. That Martin then ob- served that he must not judge from appearances, that Schumacher was the moneyed man of the concern. The withess then proceeded with a more thorough examination. Upon his cross-examination, he swore that his only business was to examine his person, and to examine and report as to the physical condition of his body. Upon being asked if that was all he did, and if he made any other report, he answered, " That was all I did. I did not make any other re- port. I reported nothing to the company but what the certificate contains. That related exclusively to the person. The thorough- ness of my examination does not depend upon the amount insured." He also stated that his fees did not depend upon the amount in- sured. It will be perceived that the examination made by the medical examiner was confined entirely to matters relating to the physical condition and the health of the insured. Such is the testimony of 442 SUPREME COURT OF NEW YORK. Valton ». National Loan Fond Life Assurance Society. the witness as to the hne of duty required at his hands, and such would appear to be the natural and necessary scope of an examina- tion of such a character. It would be entirely inconsistent with the apparent duty of a physician required to examine and report as to the physical condition of a person, to include in his examina- tion matters which properly belonged to another department. This duty would more appropriately be assigned to the general agent of the company, who conducted its general business, and who would be supposed to take charge of all matters pertaining to the risk. Independent of the positive evidence of the medical examiner, that his business was merely to examine and report exclusively as to the physical condition of the person ; the report that he made was entirely confined to this. The interrogatories propounded, as will be seen, related entirely to the physical condition. The opin- ion required was an " opinion on the life," evidently showing that it was the design and intention of the company to confine him en- tirely to the specific duty of medical examiner. It is claimed that a decided opinion, recommending the accept- ance or rejection of the proposal, embraced everything which related to the physical or the pecuniary condition of the applicant. It strikes me that this view of the question cannot be upheld. The decided opinion required was limited to an opinion based upon the interrogatories previously propounded, and in accordance with the last interrogatory but one, " an opinion on the life." If it were otherwise, the medical examination would include a range of inquiry more appropriately belonging to another sphere. It would actually embrace that of the general agent and the company itself, whose business it was to look after the general interests of the corpora- tion, and the general characteristics of the risk. It would be absurd to say that a physician, assigned by an insurance company to examine as to the physical condition and health of an applicant for a policy of insurance, was required to look after every possible aspect of the case, and to be governed and controlled by his or her pecuniary circumstances, in forming his opinion " on the life." I think the doctrine contended for is irrational and cannot be sus- tained. Upon the redirect examination of the witness by the defendants, he further stated that he always took a memorandum of the amount, to settle his accounts with the company, and to graduate the amount of his fees. Upon being asked, when Martin said SEPTEMBER, 1863. 443 Valton ». National Loan Fund Life Assurance Society. Schumacher was the moneyed man of the concern, Did you believe it ? he replied : " I thought it must be a very small moneyed con- cern, if he was the principal of it." The question was then put to the witness, whether, if it had not been for that representation, he would have recommended the acceptance of the proposal. The witness had already sworn that he thought it must be a small moneyed concern if he was the principal of it, and notwithstand- ing this, he had recommended the risk ; and the question put tended somewhat to contradict his evidence in reference to the opinion he had expressed as to the representation and his written recommendation of the risk. In this respect, it may be question- able if it was admissible. I think, however, that it was incompe- tent on other and stronger grounds. It called for the opinion of the witness upon a point upon which he was not required or author- ized, within the legitimate performance of his duties, to express an opinion. He was the medical examiner of the company. What had he to do with the question, whether this man was the moneyed man of the concern ? No such inquiry was propounded to him. No such fact was within the scope of his authority. It was the physical, not the pecuniary condition of the insured that he was to examine. He was required to express, an opinion on his life, not his property. He had already given an opinion as to that, from the examination made of his person. With this evidence intro- duced, it cannot fairly be claimed that he was required to go fur- ther and qualify it, by basing that opinion upon a matter that could have no connection whatever with his duties and responsibilities. It is said that he was as competent to show the effect of such representations as are the vendors of goods to show that they were induced by false representations to sell them, and as insolvents are to negate an intent to defraud their creditors in making a general assignment. The cases are not analogous. Where a person sells goods to a fraudulent debtor, the whole transaction is presented. The fraud- ulent representations are the grounds upon which a recovery is sought. These are the inducement for the sale, and the effect they produced upon the mind of the vendor is material, important, and controlling. So in regard to an insolvent. This intent to defraud is the very essence of the matter in controversy. In the case of a medical examiner, the pecuniary condition of the applicant can have but little, if anything, to do with his physical state. It is 444 SUPREME COURT OF NEW YORK. Yalton V. National Loan Fond Life Assurance Society. not properly before him. He is confined and restricted to a mere medical examination. Upon this his opinion is to be based. It is not within the scope of his power to express an opinion upon any other point, and he is disquaUfied from so doing by all the rules of law applicable to such cases. In order to require an opinion of a witness upon any subject, it must be made to appear that the sub- ject matter was one upon which he might properly be called upon to form an opinion, which would govern his action. In the present case, the interrogatories which were presented to the witness clearly showed that the inquiry was not properly before him, as it was in the case referred to. By these interrogatories he was restricted to the physical condition of the party. Besides the infallible testi- mony of the interrogatories themselves, the witness positively swears that such was the case. Can he be called upon to contra- dict the interrogatories and his own evidence, and to express an opinion whether he would have recommended the acceptance of the proposal, but for a representation that he was the moneyed man of the concern ? I think not ; and the question was properly ex- cluded. The second question, whether the representation had any, and if any, what eifect upon the mind of the witness, is liable to the same objection, and the remarks already made are applicable. The third question, whether the representation had any, and if any, what influence upon the subsequent action of the witness iu making his certificate and report, is equally objectionable, and comes within the same category. The two last questions were objected to upon the additional ground that they were cumulative. There may be some doubt whether the witness had not already sufficiently answered these questions, and virtually expressed his opinion as to the effect of the representation that Schumacher was the moneyed man of the con- cern, by signing the certificate, and by testifying that it was a very small moneyed concern if he was the principal of it; in fact, whether he had not fully and completely negatived the idea that it had produced any efiect and influence upon his mind, in recom- mending the risk, and in making his certificate and report. I am inclined to think that he had, and the defendants had, really, the whole benefit, by his answer to the question first put, which could be derived from an answer to aU of the questions which were ex- cluded on the trial. I am also of the opinion that the questions SEPTEMBER, 1863. 445 Valton V. National Loan Fund Life Assurance Society. were properly overruled for the reasons already given, and that this was not a case where the defendant was entitled to the opinion of the witness. It is claimed that the question here presented is covered by the decision of the court of appeals, when this case was before them. 20 N. Y. 32. The court there held that a pohcy of insurance is avoided by a fraudulent representation in respect to a fact not ma- terial to the risk, if in the judgment of the insurer it be material in respect to the inducements to undertake the risk. The ques- tion, in the court of appeals, arose upon an exception to the charge of the judge, and not upon a question as to the admissibility of evi- dence. There is a marked distinction, in my judgment, between a fraudulent representation made to an insurer and a statement made to a medical examiner, whose duties are expressly confined to an examination of the physical condition of the applicant. I have already discussed somewhat the difference between the two cases, and perhaps it is needless to say more. It may not be amiss to observe, that while the insurer, who is represented by the gen- eral agent of the company, has a general jurisdiction and control over the whole matter, the duties of the medical examiner are more specific, more narrow and circumscribed. The latter is a subordinate officer, acting under the general direction of the com- pany or its general agent. I think that it cannot be fairly claimed that it was within the province of the medical examiner to pass upon the question whether the applicant was the moneyed man of the concern. He was not called upon to decide any such question. And such a representation would not properly have exercised any influence whatever upon his judgment, unless he assumed far greater power than was conferred upon him. On the other hand, the general agent is the representative of the company. He receives the application, examines into the whole case connected with the issuing of the policy, receives the premium, and delivers the policy. He is, in fact, the insurer. And any representation made to him, if it influences his mind, is material and important. There is a broad distinction between the two cases. And while there appears to be no propriety in asking the opinion of the medical examiner as to the pecuniary circumstances of the person examined, there is an eminent appropriateness, a peculiar fitness, in ascertaining whether the judgment of the general agent was influenced by any such representations. 446 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. It is also said that the judge, at the circuit, upon the request of the defendants' counsel, charged that if the medical examiner of the company was induced by the false representation that Schu- macher was the moneyed man of the concern, to recominend the acceptance of the application, and such recommendation had a material influence with the company in inducing them to issue tlie policy, then the policy was void, and the plaintiffs could not re- cover. Considerable stress is laid upon this portion of the charge, to sustain the position that the questions were proper. I incline to the opinion that the charge may have been correct, in reference to the testimony already given. It must be borne in mind that the witness had already testified that he thought that it must be a small moneyed concern, if he was the principal of it ; and hence it may not have been improper for the judge to have charged as he did in reference to the testimony presented, with this expression of the opinion of the witness, and his action showing that the repre- sentation could have no influence upon his judgment under the cir- cumstances, and with the charge of the judge pointedly upon the question. Can it be urged with any force that the exclusion of the evi- dence had any weight upon the decision of the jury ? I deem it unnecessary to pursue the inquiry further, preferring to dispose of the question upon other, and what I deem more substantial grounds. It will be remembered that the judge was called upon to charge upon over twenty distinct propositions by the defendants' counsel. He charged upon most of these in favor of the defendants. Con- ceding that in the one referred to he made a mistake, it cannot be regarded a ground of complaint. The plaintiffs may have excepted for this reason, but no argument in favor of the defendants' posi- tion that the evidence was proper, can be drawn from the fact that the judge charged in conformity with it. It only shows that the judge charged more favorably for the defendants than was war- ranted, as he clearly did, if the charge covered the questions over- ruled. And it has been repeatedly held by frequent decisions of this general term that this is no ground of error. Even if it shows the judge was inconsistent, which I am not pre- pared to admit, (and this is the utmost which can be claimed for the charge in this particular, so far as it bears upon the question now discussed,) yet it is no ground for urging that he erred in rejecting the evidence. SEPTEMBER, 1863. 447 Valton V. National Loan Fund Life Assurance Society, A judge is frequently called upon, at the close of an important and lengthy trial, to charge upon numerous propositions involving intricate and important questions, v>rhich lie must necessarily dis- pose of without much examination, and with little deliberation. In my judgment, it should be his aim and object, so far as practicable, to divest the case of difficult and troublesome questions ; while he guards the rights of all parties in his charge, he should be careful to injure none by refusing to charge upon propositions made to him by learned counsel. If his charge is more favorable than is de- manded, it cannot be regarded by the party who has the benefit of it as an argument in favor of a new trial upon another point of the very same character, and embracing the same principle taken by him upon the trial in another stage of the case. It is at most an error which the party who excepts to it alone can complain of. As I have already shown, the charge as made may have been perti- nent as the case stood ; if it was not, the defendants have not lost any rights, and their grounds for a new trial must not rest upon the fact that the judge charged as they claim was right upon one proposition, even although he may have committed an error in deciding differently upon another ruling. The defendants must stand or fall upon the correctness of the ruling of the judge upon the admissibility of the evidence rejected ; and I think the judge properly excluded the questions put to the witness. I have confined my remarks to a discussion of the question pre- sented in the opinion of the learned judge ; but upon an examina- tion of the other questions involved, I am satisfied that no error was committed on the trial. In a case of this magnitude, which has been twice tried at great length, and at large expense, while the forms of law should be duly observed, while the rights of all parties should be carefully and sacredly guarded, while we should rigidly scrutinize the proceedings of the trial to see that no error was committed, even if it is purely technical, and that no injustice has been done, a new trial should not be granted unless some plain legal rule or principle has been violated. I cannot see that such has been the case. I am therefore constrained to differ from the opinion of the learned judge in favor of granting a new trial. A new trial should be denied and judgment affirmed with costs. Gould, J. The sole point discussed in the two opinions before me relates to the rejection of the testimony (offered by the defend- 448 SUPREME COURT OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. ants) of Dr. Staats, as to his being influenced by fraudulent repre- sentations to recommend the risk to the company. No doubt the charge, given at the request of the defendants, did say that if the medical examiner of the company was influenced by the false representations that Schumacher was the moneyed man of the concern, to recommend the acceptance of the risk, and that recommendation had a material influence on the company in in- ducing it to issue the policy, the policy was void, and the plaintiffs could not recover. But the judge's seeing fit to gratify the defend- ants by stating such a point, cannot make relevant testimony not otherwise relevant. And, from a careful examination of the case, it would seem that the excluded testimony, as well as that ad- mitted, as to Dr. Staats being influenced by the false representa- tions, could, in no view, be relevant. The last question of those addressed to him by the company's circular was, of necessity, but a summing up of the prior questions, equivalent to asking, " Since you have, in detail, stated the partic- ulars as to the applicant's health, will you state, in conclusion, whether on the whole his health is such that you consider the risk a desirable one ; and would you, as to that ground, recommend its being taken ? " This question is to be considered as applied to the subject matter before him. And the company must have understood it, as this court would understand it, precisely as it purports. And, taken in that sense, it is merely impossible that the element of his pecuniar5' condition, instead of his .sanitary, could have influenced the answer. The doctor would hardly say that his being a moneyed man would alter the number of pulsations, the liability to coughs, or the Hke- lihood of living long. And as it could not alter any of the prior answers, how could it affect the concluding inference ? To have the answer influence the company, it was necessary that it be an answer to the company's question ; and we are to view it in the light in which the company would, from the paper, understand it. And there is in the case no shadow of proof as to any effect it had on the company. In that view, I see no error in the ruling. And whether I should have found the verdict or not, I hardly deem this ground sufficient to order a new trial. HoGEBOOM, J. When this case was before the court of appealsi SEPTEMBER, 1863. 449 Valton i). Kational Loan Fund Life Assurance Society. it was held that a policy of insurance is avoided by a fraudulent representation in respect to a fact not material to the risk, if in the judgment of the insurer it be material in respect to his inducements to undertake the risk. The particular request which the defend- ants' counsel made to the judge at the circuit, in the trial then re- viewed, was, that if it was untruly represented by Schumacher, or in his behalf, to the agent of the defendants, that Schumacher was the moneyed man of the concern, and that the defendants would not have issued the policy without this, then the policy was void. The judge refused so to charge, and the court of appeals granted a new trial for that and kindred errors. The general principle estab- lished was, that fraudulent representations made to the insurer, though not material to the risk, yet material in the judgment of the insurer, and inducing the risk, will avoid tlie policy. The court made no distinction in this case between representations made to the defendants, or their directors or officers in New York and their agent at Albany. The judge at the present trial charged in accordance with this doctrine. He went further, and in conformity with the request of the defendants' counsel, charged that if the agent, but for the false representation made by or in behalf of Schumacher, that he was the moneyed man of the concern, would not have acted fur- ther on the representation, (that is, not have recommended to his principals the issuing of the policy,) then the policy was void. It appears to have been assumed that if the agent had recommended the rejection of the application, it would have been rejected by his principals. In another part of the charge the judge held, and I think prop- erly, within the scope of the decision of the court of appeals, that if the defendants were induced to issue the policy by the false rep- resentation made to their agent, that Schumacher was the moneyed man of the concern, it was void. Mr. Lacey, the agent, had stated in substance, that but for the representation that Schumacher was the moneyed man of the concern he would have recommended the rejection of the application. The judge at the circuit, upon the request of defendants' coun- sel, went further still, and charged that if the medical examiner of the company was induced by the false representations that Schu- macher was the moneyed man of the concern to recommend the acceptance of the application, and such recommendation had a 450 SUPREME COURT OF NEW YORK. Valton ». National Loan Fund Life Assurance Society. material influence with the company in inducing them to issue the policy, then the policy was void, and the plaintiffs could not recover. I think this charge also was within the spirit of the rule laid down by the court of appeals. The medical examiner must be regarded as much, and in as important a sense, the agent of the company as the local agent at Albany, Mr. Lacey. And his recommendation of the acceptance of the risk must be deemed likely to have had a material and controlling influence with the company in inducing the acceptance of the application. All testimony, therefore, properly tending to show that the rep- resentation of the pecuniary responsibility of the applicant had an influence upon the medical examiner in inducing his recommenda- tion of the acceptance of the application, was admissible. There was testimony in the case tending to show that representa- tions of that character were made to Dr. Staats. There was also testimony to show that these representations were false. The effect which these representations had upon the mind and the action of Dr. Staats was sought to be ascertained, on the part of defendants, by three questions put to him, all of which were overruled, and I think improperly. The first was, whether lie would have recommended the acceptance of the proposal but for this representation ? The object, of course, was to show he would not, and the ques- tion was material. He was competent to show the effect of such representation upon his action; as are vendors of goods to show they were induced by false representations to sell them ; and as are insolvents who make a general assignment, to negate an intent to defraud their creditors in making the assignment. The second question was, Did the representation produce any, and if any, what effect upon your mind ? This question was equally admissible ; and although it was not as comprehensive as the first, it tended in the same direction, and was perhaps designed to remove any doubt as to its being leading. The third question was, whether the representation had any, and what influence upon his subsequent action in making his certificate and report. This question was, I think, of the same character, and directly tended to favor facts material to the case, and material to the view which the judge subsequently took of it in his charge to the jury. Similar evidence to that here excluded was admitted from the MAKCH, 1864. 451 Valton t>. National Loan Fund Life Assnrance Society. witness Lacey. I do not perceive any solid distinction between the two cases, nor why, in law, the recommendation of the general business agent of that locality should be regarded as of any more coni.petency than that of the medical agent. If my brethren agree with me in this view of the case, it is not indispensable to examine any of the other questions which arose on the trial ; and as some of them are of some difficulty and complex- ity, I prefer not to embarrass a future trial with the discussion and decision of doubtful points. With regard to the defendants' application to amend their answer, and as that failed to be acted on by reason of the denial of the motion for a new trial, I think the more appropriate disposition of it belongs to the special term, where the plaintiffs can be heard in opposition to the applica^on. My opinion is, that the judgment should be reversed and a new trial granted, with costs, to abide the event, and without prejudice to a renewal of the application by defendants at special term to amend their answer. Judgment affirmed. Reversed in the court of appeals. See infra. Gerhakt Valton vs. The National Loan Fund Life Assur- ance Society. (1 Keyes, 21. Court of Appeals, March, 1864.) General quesHcms by medical examiner, influence of. — It is proper, in an action upon a life policy, for the company to aslc the medical examiner whether the answers to certain questions put by him to the applicant, respecting his pecuniary means, had any influence upon his mind and action in recommending the risk. The case has been fully stated in the preceding reports. MuLLiN, J. The object of a physical examination of a person proposing to insure his life in an insurance company, by a compe- tent physician, is to ascertain whether he is laboring under, or is subject to any diseases or defect which may have a tendency to shorten life. The inquiry involves an examination not only into the present state of the various organs and functions of the body, but into the tendency of those organs and functions to take on diseases as affected by habits of mind as well as of body, tempera- ment, tendency to disease from hereditary causes, and the occupa- tion and condition in life of the subject. Of two persons of the 452 COURT OF APPEALS OF NEW YORK. Valton V. National Loan Fund Life Assurance Society. same age and present bodily health, the one may present a risk entirely safe and proper to be taken, the other unsafe and improper to be taken. It is impossible to affix limits to the subjects into which it is not only proper but necessary for an examining surgeon to inquire, in order to arrive at a conclusion upon which he can safely advise the acceptance or rejection of a risk. Whether I am right or wrong in these views, I entertain 'no doubt that in many cases a knowledge of the pecuniary circum- stances of a person desiring to be insured is material to the risk, as affecting, in some degree, the life ; and they are a legitimate sub- ject of inquiry for the examining physician or surgeon. This inquiry may not be material in every case, but the surgeon alone can tell whether it was or was not so in a given cause. It is, therefore, competent to ask him whether he made the inquiry, and what response was given, and how far he deemed such answer ma- terial in deciding to advise the taking of the risk. In sucli cases the point of inquiry is, whether the pecuniary cir- cumstances were deemed by him material, and whether he would have advised the acceptance of the risk if it had not appeared that the person desiring to be insured was a man of means. This is the only inquiry by which the real importance of the inquiry and answers can be ascertained. For these reasons I think the learned justice who tried this cause erred in rejecting the question put to Dr. Staats, as to the effect upon his mind and action in respect to said application, and the judgment should for this reason be reversed, and a new trial or- dered ; costs to abide the event. Wright, J., expressed no opinion ; all the other judges con- curred. Note. — The question in this case was not whether it was proper for the ex- amining physician to express an opinion upon the risk based upon information not relating to the applicant's health ; but whether such information influenced him to recommend the risk. And it seems proper that the company should have been allowed to ask the latter question. This distinction may not have been clearly in tlie minds of the majority of the court below, which was perhaps the cause of their error. If the question had been whether the medical examiner could properly pass upon the risk from the basis of Schumacher's pecuniary circumstances, the de' cision of the supreme court would in all probability have been affirmed. But flie question was, Did Schumacher's answer as to his pecuniary circimistances FEBRUARY, 1865. 453 SicCord r. Noyes. and situation influence the examining physician's opinion ? not, Was it proper for him to make the inquiries ? No other case has been found in which it has been even suggested that the medical examiner has any other duty to perform than that of ascertaining the physical condition of the applicant; and his opinion of the risk, based on infor- mation not relating to health, would probably be held in light esteem by the office, where such matters are properly and intelligently considered. It is the business of the company to understand and correctly determine these questions. None of the text writers on the subject mention any other duty of the exam- ining physician than that of ascertaining the state of health of the applicant. See Reynolds on Life Assurance, 123 ; Bunyon on Life Assurance, 51 ; Angell on Life & Fire Insurance, § 283. The final rulings in this strenuously contested case, so far as they relate to insurance, may be thus stated : 1. A life policy, valid in its inception, will not be avoided by an assignment to one who has no insurable interest. See Rawls V. American Life Ins. Co , post, 549. 2. A policy is avoided by fraudulent repre- sentations concerning a fact not material to the risk, if in the judgment of the company the fact was deemed material in determining the risk ; and the occu- pation of the assured may be a material question. See Compbell v. New Eng- land Mut. Life Ins. Co., ante, 229. 3. The company may inquire of their ex- amining physician if his report in favor of the acceptance of the risk has been influenced by any extraneous representations of the assured ; such as statements concerning his occupation and pecuniary means. McCoRD VS. Notes. (3 Bradi 139. Surrogate Court of New York, February, 1855.) , Assignment. — The assured, who had obtained life policies in his own name, assigned them in part as security for a debt, the balance to be paid to his widow ; and notice was given- to the company of the assignment. Held, that the assignment was a complete transfer of the title, and that the fund was not subject to administration. The case is stated in the opinion of the court. Richard Busteed, for petitioner. N. J. Waterhury, for defendant. The Stjekogate. This is an application on the part of a cred- itor of the intestate to compel the administratrix to give additional security on the ground that the penalty of the bond taken on the grant of administration, is inadequate in amount. Laws, 1837, ch. 460, § 35. Whether such an order should be made, depends en- tirely upon questions growing out of the assignments of two pol- icies of insurance for $2,000 each on the life of the intestate. A policy for |4,000 was first taken out in April, 1850. Six montha after, it was surrendered, and in its place two for |2,000 were sub- stituted. The consideration stated was the payment of 14.22, and 454 SURROGATE COURT OF NEW YORK. McCord V. Noyes. the annual premium of $19.20. These policies were issued to the intestate in his own name, October 11, 1850, and on the 30th Oc- tober, 1850, he assigned one of them to Milton St. John, in con- sideration of the sum of three hundred dollars, the assignee agree- ing to pay the future premiums, and on the assignor's decease to pay his widow fifteen htmdred dollars. The other policy was as- signed to the same party on tl^p 14th day of February, 1851, for the benefit of the assignor's wife, the assignee obligating himself to pay the premiums. The policies were of little, if any, pecuniary value at the time of the assignments, if we regard merely the premiums that had been paid ; but it is urged that the state of the intestate's health rendered his early decease probable, and there- fore the assignments were fraudulent and void as against creditors. Under the provisions of the English Bankrupt Act, life pol- icies are held to vest in the assignee, as chattels in the order and disposition of the assured, and an assignment without notice to the company, is void as against the assignee in bankruptcy. Aiigell on Life Insurance, § 336. The policy of our law, however, is in favor of allowing the wife, either in her own name or through the medium of a trustee, to insure her husband's life free from the claims of his representatives or of his creditors. Laws of 1840, ch. 80. The company with which the policies in question were effected, have power by the charter granted by the legislature of Connecticut to insure the life of the husband for the benefit of the wife. The intestate, instead of effecting insurance directly in the name of his wife, which would have been lawful, has accomplished the same result substantially by assigning the policies to an assignee in trust for his wife, the assignee agreeing to pay the premiums, and so removing all ground for complaint that the husband had contributed the fund for sustaining the policies. The company was notified of the assignment ; and by the assignment and delivery there was an entire transfer of the title, so that the husband no longer had control over the policies, and consequently his adminis- tratrix cannot establish any claim. Harrison v. McOonkey, 1 Johns. Ch. R. (Maryland,) 34.^ The title of the assignee and of the wife is undoubtedly good and valid against the intestate's repre- sentatives. Whether creditors, who did not intervene before the transfer of title was perfected, can impeach the assignment of a contract which ' Ante, 144. JUNE, 1857. 45£ Peacock v. New York Life Insurance Company. rested merely in contingency, and which was of such a character as the law sanctions by its policy in view of the relation of husband and wife and the rights of creditors, is a question I do not think necessary for me to pass upon. The assignments being valid, so far as the intestate and his representatives are concerned, and if fraudulent as to creditors, only invalid to the extent of their claims, they have their remedy in equity, if any wrong has been done, against the assignee and the cestui que trust. The latter both claim adversely as against the estate of the intestate. To compel the administratrix to give security for what she claims in her own individual right, and under a legal title outstanding at the intes- tate's decease, seems to me alike burdensome and unnecessary. If a court of competent jurisdiction shall adjudge the assignments void as respects creditors, the case will pi-esent a new appearance. For me to interfere now would, in my judgment, be quite prema- ture. The application must therefore be denied, each party paying his own costs. Eveline Peacock, executrix, et al. vs. The New York Ltpe IisrsuEANCE Company. (1 Bosw. 338. Superior Court of New York, June, 1857.) Renewal poUcy. — In the case of a renewal of life insurance where no new conditions respect- ing health are imposed, and only a general condition is inserted that the party is in "good health," this expression must be construed by the terms of the original policy and the statements therein made respecting health. And therefore, when the insured is in substantially the same state of health when the insurance is renewed as when it was originally effected, and no new forms of disease have been developed meanwhile, the company will not be relieved, upon his death, for the reason that he was not in absolutely perfect health at the time of renewal. Preliminary Proofs. — The plaintiff need not lay before the oiBce, before bringing suit, proof that the assured was in good health at the time of renewing a life policy, unless this is a condition of the renewal policy; and if such preliminary proofs are actually furnished, and are deemed defective, the office should call attention to the defect, or it will be deemed to be waived. This action comes before the court, at general term, on a motion by the defendants for a new trial on questions of law arising upon exceptions taken at the trial, and there ordered to be heard, in tlie first instance, at the general term, and the entry of judgment to be, in the mean time, suspended ; (the plaintiff having recovered a verdict for #5,865.28.) TKe action was brought to recover the sum of $5,000, with interest, insured by the defendants upon the life of John C. Ryan, deceased. 456 SUPERIOR COURT OF WEW YORK. Peacock v. Sew York Life Insurance Company. The policy is dated the 8th day of March, 1853 ; premium $160 per annum, payable in advance on the 28th day of February in each year. The policy was conditioned, among other things, that if the pre- mium was not paid as prescribed, the defendants were not to be bound by the policy. The assured, before obtaining the policy, made certain declarations in regard to his habits and health. He did not pay the premium which fell due the 28th of February, 1854, when due. The defendants accepted the premium on the 7th. of March, 1854, and renewed the policy upon this condition, "that he (the insured) is now in good health; proof of which, in case of death, to be furnished the company." The assured died 22d May, 1854. May 29th the defendants were served with affidavits of Caleb Harstow and Henry E. Blossom, stating the death of the assured, and the disease to which they attributed his death. The declarations made by the assured when the policy was effected are stated in the points of the defendants' counsel and in the opinion of the court. When the policy was renewed the assured stated, in a letter to the president of the defendants' company, " that, as to his health, he was better off than when he got the poHcy." The defence was, that the assured was not in good health when the policy was renewed, and that no preliminary proofs had been furnished. The issues raised by the pleadings were tried before Mr. Justice Bosworth and a, jury in January, 1857. A number of witnesses were examined to show the actual state of the health of the assured when the policy was renewed, and it was proved that the renewal was on the condition that he was then " in good health." When both parties rested, the defendants moved for a dismissal of the complaint on the ground that the plaintiffs were obliged to produce to the defendants preliminary proof of the health of the assured at or before the time of claim made for the amount insured by the policy, and that it did not appear that such proof had been famished. The judge denied the motion, and the counsel for the defendants excepted. His honor the judge then charged the jury ; and among other things charged : JUNE, 1857. 457 Peacock i;. New York Life Insurance Company. That the policy on which the suit was brouglit had a condition bj' which it was forfeited if the premium was not paid on the 28th February ; that the premium was not paid on that day ; that the company had a right to insist on the forfeiture, or to accept the premium and waive it, and that on such conditions as they saw fit. That they did in fact receive it, and on the terms expressed in the receipt of March 7th ; on the condition that John C. Ryan was in good health, &c. That the only question was, whether he was in good health when the parties finally agreed, the one to leave and the other to retain the premium. , That in determining what was good health, in the understanding of the parties to the contract, they must take into view the declara- tion on which the policy was made. That declaration showed his condition as to health, and that was adopted as the basis of the contract ; so that the question was, whether, at the time of the premium being paid and retained in Mardh, the said Ryan was in good health within the meaning of these words as used by the par- ties to this contract. If you shall find that on the 7th of March he was not affected with any diseases other than those mentioned in the declaration on which the policy was issued, which, in the judgment of those con- versant with such subjects, would tend to shorten human life or increase the risk, and that those diseases had not become aggra- vated so as to make his condition substantially different from what it was when the policy was effected, then he was in good health within the meaning of those words as used by the parties, and the plaintiffs were entitled to recover. If you shall find otherwise, your verdict must be for the defend- ants. The defendants' counsel, before the jury retired fi-om the court, excepted to the judge's charge in the following particulars : 1st. To the part in which the judge charged, that, in deciding what the parties understood by good health, the jury would bear in mind the representations which were made by John C. Ryan at the time of making the application for the policy. 2d. To the part in which the judge charged, that if on the 7th of March, 1854, John C. Ryan was not affected with any other diseases than those mentioned in his application, which in the judgment of those conversant with such diseases tended to shorten human life or increase the risk ; and if those diseases mentioned in 468 SUPERIOR COURT OF NEW YORK. Peacock ». New York Life Insurance Company. the application of Ryan were not on the 7th day of March, 1854, so aggravated as to make his condition substantially different from what it was when the policy was effected, the plaintiffs were en- titled to recover. The jury retired under the charge of an officer, and returned into court and rendered their verdict in favor of the plaintiffs, and against the defendants, for the sum of five thousand eight hundred and sixty-five dollars and twenty-eight cents. J. Miller, for the defendants. 1. No proof, before action brought, of the state of health of the insured on the 7th day of March, 1854, (at which time the policy was renewed,) was made or furnished to the defendants in ccmpli- ance with the condition of the renewal. The motion to dismiss the complaint on that ground should have been granted, and the exception to the ruling of the judge in that resject was well taken. It was not the case of a defect of preliminary proof which the defendants should have pointed out, but a failure of the production of any proof whatever, and it does not appear that the defendants did any act which amounted to a waiver of such proof. 2. The charge of the judge in the particulars excepted to was erroneous. Good health, as used in the condition of the renewal of the 7th of March, 1854, is to be taken positively in the common accepta- tion of the terms, and not by comparison with the health of the insured at any previous period. Suppose the insured in his declaration had answered he was in bad health, and the defendants had made the policy notwithstand- ing, but on the renewal had required as a condition of such renewal that he was then in good health, could it be maintained that the good health named in the condition of renewal meant bad health because the defendants had made a policy originally, notwithstand- ing the insured was in bad health ? There is no legal presumption that the defendants would not have originally made the policy in question unless the insured had been in good health. No proof or presumption is given, or arises, of any agreement or understanding between the parties, defining the meaning of the terms good health, inconsistent with the general meaning of those terms. The only legal inference is, that the defendants were at the time JUNE, 1857. 459 Peacock v. New York Life Insurance Company. of making the policy willing, notwithstanding the various ailments disclosed in the declaration, to make it. But that fact is not evidence of their willingness to renew the policy after forfeiture on the existence of the same state of facts in regard to health. If the defendants had so intended, instead of the condition that the party is now in good health, the condition would have been that the party is now in as good health as he was at the time of issuing the policy. The insured might or might not, at the time of the renewal, have been cured of the ailments with which he was afflicted at the time of making the policy ; of this he was to judge. If by reason of those ailments he was not in good health at the time of making the policy, he might, perhaps, notwithstanding, have' recovered, if he had kept all the other conditions. But having forfeited the policy by non-payment of the premium, the defendants had the right to say, as they did, " Although we originally insured your life when you were afflicted with ailments that impaired your health, we now require as a condition of renewal that you are in good health ; you may, or not, accept our terms." The insured, by paying the premium and accepting the renewal, agreed to the new terms and conditions, and his legal representa- tives are bound by them. The parties themselves, at the time of the transaction, put a con- struction upon the terms "good health." The insured in his letter said he would not receive the renewal with the condition annexed, and the defendants thereupon offered to return the premium if the insured was not willing to take a renewal of the policy upon the condition. If the insured understood it to mean such health as he was in at the time of issuing the policy he would not have remonstrated, for he says in express terms, " I am now better off than at the time I got your policy." The insured, therefore, must have understood the terms "good health," as used in the condition of the renewal, to be a positive thing, which the defendants required to exist, and not by comparison, as good, or a better state of health than when the policy was issued, and with that understanding he accepted and retained the renewal. The verdict should be set aside and a new trial granted. D. Lord, for the plaintiffs. 460 SUPERIOR COURT OF NEW YORK. Peacock if. New York Life Insurance Company. 1. By the declaration of health on which the policy was effected^ the parties made a standard of good health as to the party to be insured. Perfect physical condition is not, in life insurance, the standard of good health. Ross v. Bradshaw, 1 W. Bl. 312. Willis v. Poole, 2 Marshall on Ins. 770. See cases 2 Park on Ins. 932, and Watson v. Mainwaring, i Taunt. 763. 2. The inquiries made and answered related to causes supposed to he permanent and to bear on the goodness of health, from the susceptibility they are supposed to leave in the subject. 3. The answers in the dteclaration of health show the following facts as to the health of the insured, adapted as insurable good health in this case, namely : Q: 6. That he had not been always sober and temperate ; that he had lived freely some years since, but not so now ; thinks him- self sober and temperate. Q. 9. As to serious illness : That he had had dyspepsia and piles, and one summer bilious fever. Q. 10. That he was subject or predisposed to bleeding piles oc- casionally, &c. Q. 11. That he had had palpitations and nervousness, but not for many months. * Q. 12. That he was subject to temporary colds, but was about as well as he ever was. It also appears that the insured had a personal interview with the defendants about the 16th March, 1854, in which the plaintiff spoke of being ill and irritable. 4. Under these facts the declaration as to good health, both al the time of the insurance and of the renewal, must be deemed satisfied as between these parties by a state of health subject to the drawbacks stated in the declaration of health; otherwise the defendants were receiving a premium for which they undertook no risk. 5. The charge of the judge left the question of good health to the jury under no other qualifications than were contained in the declaration of health. Compare the charge with the declaration of health. 6. The objection on the trial as to want of proof of health as preliminary proof was rightly disregarded. (1.) The requirement of preliminary proof in the policy is only of death, not of the state of health. JUNE, 1857. 461 Peacock v. New York Life Insurance Company. (2.) The receipt given by the boy who took the check never appears to have been known to the insured or his representatives. (3.) And the personal presence, at the office, of the insured was a sufficient exhibit of the subject as to health under the decla- ration. (4.) And chiefly, the defendants never called for such certifi- cate, and so waived it, even if it had been strictly preliminary proof required in the policy. Bumstead v. The Dividend M. Ins. Oo. 12 N. Y. (2 Kern.) 81. (5.) The court, even if they could imply a condition in the con- tract that such a certificate should be produced, would not imply that it must in all cases be made without a demand or call for it : there is no evidence of any such demand. Judgment for the plaintiffs on the verdict should be ordered. WooDEUFF, J. The policy of insurance — the representations which are declared to be the basis of the contract of insurance and the certificate of renewal must be construed together. This is only in accordance with the necessary intent of the parties. The very term renewal, or "renewed," imports the continued existence of the previous contract, and necessarily refers to its provisions. If there is nothing expressed in the terms of renewal inconsistent with the preexisting agreement, or the conditions in reference to which it is made, then clearly the act of renewal brings again into full legal effect all the terms of the previous policy, subject to the conditions upon which it was made, and to those conditions only. To this may be added that the design and object being to renew a preexisting policy, the terms employed to effect that object will not be deemed inconsistent with the conditions of such policy if they may reasonably be construed in harmony with those condi- tions. The nature of the transaction indicates an intent to con- tinue the former contract without modification, unless the terms of renewal show a different purpose. And again, it is a reasonable presumption that the same terms employed by the parties in the original contract are used in pre- cisely the same sense when they appear in a certificate of the re- newal_ of that contract. If these observations are well founded they are pertinent to the appeal under consideration, and would seem decisive in their appli- cation to the case. And they are especially appropriate in a case in which the whole object of the so called renewal was to waive a 462 SUPERIOR COURT OF NEW YORK. Peacock v. New York Life Insurance Company. default in not paying the premium on the precise day it became due, — a default arising from inadvertence. The original policy was made upon an express condition that if the declaration of the assured made on his application for insurance should be found in any respect untrue, such policy should be null and void. The declaration so referred to contained the representations of the assured respecting his health, and after referring to past habits of indulgence states that he had had no sickness other than dys- pepsia, and piles, &c. That he has bleeding piles occasionally; that he has had palpitations and nervousness, but not for many months ; and in answer to a specific question, " Is the said party now in good health ? " answers, " About as well as I ever was, ex- cept temporary cold ; " and it then concludes, that " I am now in good health, and do ordinarily enjoy good health ; " and it is then agreed that this declaration and the accompanying proposal " shall be the basis of the contract " between the assured and the defend- ants. The certificate of renewal, which was the only evidence of the renewed undertaking which the defendants furnished to the as- sured, after acknowledging the receipt of the premium for the second year, contained the words, " Renewed on a health certifi- cate." If no further explanation had been sought or given, it would be difficult to say that this language imported anything more than that the company had received a certificate in regard to the health of the assured, which was such that they had consented to renew the policy, and did renew the policy, and waive the default in not paying the premium on the day it became due. But the matter did not rest there. The assured, conscious, no doubt, that no actual certificate had been furnished other than his original declaration above referred to, sought an explanation, giving the cause of the default, (imputing it to the neglect of the defend- ants' agent,) stating that he would give no further explanation as to his health other than to say that he thought he was better off than when he received the policy. The explanation of the defend- ants, therefore, is in substantially the terms which formed part of the original declaration which was made " the basis of the con- tract," viz. that the condition of renewal was that the party in- sured is in " good health." JUNE, 1857. 463 Peacock v. New York Life Insurance Company. Assuming that by this explanation, or by the terms of the mem- orandum subscribed by the person who carried the check for the premium to tlie defendants, that good health thus became a con- dition of the renewal, we cannot find any ground for saying that it had any other or different meaning in the renewal than it had when made the very "basis of the original contract." These words in the contract of renewal were used in reference to the same subject between the same parties in view of the continuance of the same contract, which was to have the same legal effect and operation in the future. There appears no reason why the parties should have used or understood them in any different sense at the one time rather than at the other. We cannot say that "good health" has so definite a meaning that it admits of application to only one physical condition. Its ordinary use in the community does not probably import a perfect physical condition once in one hundred times. And when we place ourselves in the precise condition in which the parties them- selves were when the renewal was made, with the previous decla- ration before us in which good health, as agreed to in the original policy, meant just such health as the original declaration of the as- sured described, (in very terms " now in good health,") we cannot hesitate to say that " now in good health," when made a condition of the renewal of the same policy, meant precisely the same thing. The finding of the jury, then, that the assured was, when the policy was so renewed, in respect of health or disease, in a con- dition not substantially different from what it was wh6n the policy was effected, seems to us fully to satisfy the condition of the re- newal. And these views necessarily dispose of the objection to evidence on that subject, and the exception to the charge of the judge on the trial. The remaining exception rests upon the alleged insufficiency of the preliminarj' proofs in this particular ; that, before suit brought, the plaintiffs did not lay before the defendants proof that, at the time of such renewal, the assured was in good health, &c. Although there is room for doubt whether the memorandum signed by Wm. W. Wilson, the person who .took to the company the check for the premium, had any operation upon the plaintiffs' rights whatever, (it not appearing that he had any authority to do anything more than deliver the check,) still we do not think it necessary to rest our decision of this exception upon that ground. 464 SUPERIOR COURT OF NEW YORK. Peacock v. New York Life Insurance Company. The fact nevertheless exists, that the defendants did not insert any condition (that any such preliminary proof should be furnished) in the receipt they gave to the assured as his voucher for the con- tract into which the company then entered ; and when the presi- dent in writing explained the alleged conditions of the renewal he does not intimate that the furnishing of any such preliminary proof is required. And there is nothing whatever to show that the as- sured, or his representatives, were ever informed of the contents, or even the existence of any such memorandum as that signed by Wilson. The assured had himself been at the defendants' office, and the state of his health had been the subject of conversation. Under such circumstances, we greatly doubt whether the com- pany had any right to require such preliminary proof. But if they had we are quite clear that, when the preliminary proofs were fur- nished, if they were deemed defective in that particular, the atten- tion of the plaintiffs should have been called to it, or the defect must be deemed waived ; and this we should hold even if the pre- liminary proofs which were furnished were altogether silent upon the subject. On this subject fair dealing requires reasonable frank- ness and candor from the insurance company, and so much the law does and ought to require. The defendants are allowed sixty days after the preliminary proofs are furnished before they can be re- quired to pay. When, therefore, what are in good faith presented to them as preliminary proofs are in any respect defective, common fairness requires that such defect be suggested, and that it be not held in reserve to be used afterwards to obtain further delay of payment, or to defeat a suit brought for the money. But when these preliminary proofs (viz. the affidavit of Messrs. Barstow and Blossom) are read in connection with the fact that the death was only about two months after the renewal, and that the affidavit distinctly refers to the same diseases (as the cause of his death) which are mentioned in the original declaration, (the basis of the policy,) and. states that he had not been considered dangerously sick more than a week ; it is not too much to say that here is a plain implication that might well be deemed by the com- pany to satisfy their requirement. Having themselves seen the assured after the renewal was made, in their office, and conversed with him on the subject, and being now furnished with the affidavit of two persons that though his disease was of the character from which he suffered even when the DECEMBER, 1859. 465 Peacock v. New Tork Life Insurance Company. policy was originally effected, yet [as] he had not been considered dangerously ill more than a week, they had no occasion to require any other or further evidence, that at the time of the renewal, two months before, he was in the good health contemplated by the pol- icy and its conditions. Although the affidavit is not specific to the point, there was enough in it to invite the attention of the company thereto ; and if they were not satisfied they should have suggested the objection. Judgment must be entered for the plaintiffs upon the verdict. Affirmed in the court of appeals. See infra. As to waiver of preliminary proofs, see Miller v. Eagle Life §• H. Ins. Co., ante, 375. Peacock, executrix, et al., vs. The New York Life Insurance Company. (20 N. T. (6 Smith,) 293. Court of Appeals, December, 1859.) Menewal policy. — A condition in a renewal policy that the party is in " good health," is to be construed by the terms of the original policy; and the expression "good health" does not mean an entire absence of every physical ill. If the assured, at the time of re- newal, in such case, is in substantially the same state of health as he represented himself to be in the original policy, that is sufficient. The case is fully stated in the report from the superior court, sv^ra, 455. John H. Reynolds, for the appellant. Daniel Lord, for the respondent. Strong, J. The jury have found, by their verdict, that at the time of the insurance the assured was not affected with any dis- eases other than those mentioned in his declaration, on which the policy was issued, which would tend to shorten human life or in- crease the risk, and that the diseases which had been so specified had not become aggravated so as to make the condition of the as- sured substantially worse than what it was when the policy was ef- fected. Their verdict is conclusive as to those points. The only question now open for our consideration is whether the judge rightly interpreted the condition of the renewal requiring that tlie assured should, at the time, be in good health. The word " health," as ordinarily used, is a relative term. It has reference to the condition of the body. Thus it is frequently characterized as perfect, as good, as indifferent, and as bad. The epithet " good " is comparative. It does not require absolute perfection. When, ^0 466 COURT OF APPEALS OF NEW YORK. Peacock v. New York Life Insurance Company. therefore, one is described as being in good health, that does not necessarily or ordinarily mean that he is absolutely free from all and every ill which " flesh is heir to." If the phrase should be so interpreted as to require entire exemption from physical ills, the number to whom it would be strictly applicable would be very in- considerable. In applying terms somewhat indefinite, reference should be had to the business to which they relate. This rule is very necessary when construing a language which like ours is de- fective in precision. The most important question on applications for life insurance is, whether the proponent is exempt from any dangerous disease, one which frequently terminates fatally. It is not usually deemed an objection that one has some slight physical disturbance of which in all human probability he will soon be re- lieved, although it might possibly lead to a fatal disease. A slight difficulty, such as the sting of a bee, the puncture of a thorn, a boil, or a common cold, has sometimes induced complaints which have shortened human life ; but this result is so unfrequent and improbable, that the mere possibility is disregarded in the business of life insurance. Now, in the case under consideration, the as- sured, while admitting that he. had been afflicted with dyspepsia, with piles, and occasionally bleeding piles, palpitation of the heart, and nervousness, and had then a temporary cold, asserted, never- theless, that he was then in good health. That he was in that con- dition was admitted by the company when it issued the policy. The admission would have concluded the company so that it could not have controverted the allegation of good health unless upon proof of some complaint, or tendency to disease, in addition to what was contained in the declaration of the assured, if he had strictly complied with the stipulation for the payment of the pre- mium. When the policy was continued or renewed after forfeit- ure, upon the condition that the assured was then in good health, he had a right to suppose that the company attached the same meaning to those words as in the original transaction. If not, and especially if more was required, it should have been so stated ex- plicitly at the time. It is right to suppose, and such is the legal inference, that where the same words are used in reference to the same transaction and between the same parties, they should, in the absence of any direct assertion to the contrary, have the same in- terpretation. If the company had intended to insist upon any other terms than those which governed the original insurance, they FEBRUARY, 1858. 467 £use V. Mutual Benefit Life Insurance Company. should and probably would have issued a new policy. By contin- uing the existing one, with the representations accompanying it, they clearly indicated an intention to resume their previous con- tract, not to make a new one. Insurance companies uniformly consider the representations made by the applicant as a part of, and qualifying the contract. If in this case there had been any sub- stantial misrepresentation originally by the assured, that would have avoided the policy after its renewal. The defendants did not con- tend in their answer, nor insist upon the trial, that the declaration made by the assured when the policy was originally issued, was false in any particular. If it was true, then it was, according to the finding of the jury, true when the policy was renewed The eflfect of the condition imposed at that time was to extend the original representation so as that it might be considered as then made. That would prevent any loss from the occurrence of a new disease, or the increase of a preexisting difficulty daring the inter- vening time. There was nothing indicating a disposition to effect any further change as to the original contract. The same premium was then and still to be paid ; the same policy was continued, and upon the original application. The judge was right in instructing the jury, as he did in efiect, that if the same sanitary condition of the assured, as was represented in his declaration, continued up to, and existed at the time when the policy was renewed, the plaintiffs were entitled to recover. The judgment should be affirmed. AH the judges concurring, Judgment affirmed. See preceding reports of this case. Ruse v8. The Mutual Benefit Life Insurance Compant;. (26 Barb. 556. Supreme Court, Februarj, 1858.) Non-payment of premium. Forfeiture. — The policy in question in this case stipulated that the premium should be paid annually on the 10th of April; otherwise it should be void. A prospectus was read in evidence, which had been handed to the assured by the com- pany's agent, which stated that the policy would be void if the annual premium was not paid within thirty days from the time when it became due. The second year's premium was not paid on the 10th of April. The insured died on or about the 13th of that month, and soon after his death the plaintiff tendered the premium, which was refused. Held, that the company were estopped by the prospectus from insisting upon a forfeiture. Insurable interest. — In the plaintiff's application for insurance upon the life of the deceased, which application was accepted by the office, he stated that he had an interest in the life insured to the full amount of insurance. Beld, to be sufficient proof of interest. Appeal from a judgment recovered at a special term. The 468 SUPREME COURT OF NEW YORK. Euse V. Mutual Benefit Life Insurance Company. complaint averred that the defendants were duly incorporated and organized as a corporation in 1845. That on the 15th of July, 1846, at Columbus, in Georgia, they made a policy of insurance to the plaintiff, on the life of Ira D. Bugbee, of Florida, foi: the term of his life, and for the sum of $2,000, for the sole use of the plain- tiff. That the premium was paid, and the policy delivered to him on said 15th July. That B^ugbee died on 14th April, 1847, and due notice was given to the defendants. The plaintiff prays judgment for $2,000, and interest from 14th April, 1847. The answer averred that the policy was on the condition that the pre- mium should be paid on or before the 10th of April in each year. That the premium for the second year was not paid on the 10th of April, 1847. That Bugbee died after such 10th April, 1847. Wherefore the defendants denied their liability. On the trial the policy was read in evidence. It contained no date, except that it purported to be " countersigned at Columbus, the 15th day of July, 1846," and was indorsed by the defendants, " dated 10th April, 1846." It was proved that Charles Mygatt was the defendants' agent at Columbus, Georgia, in 1846 and part of 1847. That the application for the insurance was made to Mygatt, in Columbus, in April or May, 1846, and by him transmitted to the defendants, in New York, in July, 1846. That in July, 1846, Mygatt received the policy from the defendants, and delivered it to the plaintiff, who then settled with him the year's premium, $97.40. That Bugbee died on or about 13th April, 1847 ; and after Mygatt had heard of his death, and on said 18th April, 1847, the plaintiff ten- dered to him the second year's premium, which he refused to re- ceive. That when the plaintiff made his application for the insur- ance, in April, 1846, Mygatt, the agent, handed to him a pamphlet issued by the defendants, entitled " Prospectus," &c., which con- tained these clauses : " 20th. Every precaution is taken to prevent a forfeiture of policy." " A party neglecting to settle his annual premium within .thirty days after it is due, &c., forfeits the interest he has in the pohcy.' This " Prospectus " was read in evidence. The plaintiff also gave in evidence another pamphlet entitled " Prospectus," &c., issued by the defendants after the death of Bugbee, which contained this additional clause : " If the annual premium is paid within the thirty days mentioned above, (the party being in sound health,) FEBRUARY, 1858. 469 Ruse V. Mutual Benefit Life Insurance Company. the policy will be renewed by the company without extra charge." This omitted the clause about preventing forfeitures of policy. The Jefendants gave in evidence the application for the insurance, signed by the plaintiff, which contained these averments, namely, " I have an interest in the life of the said I. D. Bugbee to the full amount of the said sum of $2,000, and I hereby agree that this declaration shall be the basis of the contract between myself and the said com- pany," &c. The defendants also gave in evidence the laws of Georgia and of New Jersey against gaming. The defendants, on these facts, insisted, 1. That by omitting to pay the premium on the day mentioned in the policy it was forfeited, and that the pro- spectus could not alter the policy. 2. That there was no proof or allegation of interest. 3. That there was a variance between the pleadings and proof, in this, that it was averred that the insur- ance was for one year from 15th July, 1846, while the proof was that it was from 10th April, 1846. The judgment was for the plaintiff for 13,583.30 principal, interest, and costs. The defend- ants appealed to the general term. A. C. Bradley, for the appellants, J. W. Edmonds, for the respondent. Sutherland, J. The pohcy or contract of insurance in this case was not a contract from year to year, dependent for its con- tinuance upon the payment of the premium on or before the 10th day of April in each year ; but it was an assurance of the life of Ira B. Bugbee for the term of life, for the sole use of the plaintiff, subject to be defeated by the non-payment of the annual premium on any 10th day of April. The words of the policy are, that the defendants, " in consideration of the sum of ninety-seven dollars and forty cents to them in hand paid, by John C. Ruse, and of the annual premium of ninety-seven dollars and forty cents to be paid on or before the 10th day of April, in every year during the con- tinuance of this policy, do assure the life of Ira D. Bugbee, of Appalachicola, in the county of Franklin, State of Florida, in the amount of two thousand dollars, for the term of life, for the sole use of said John C. Ruse." In a subsequent part of the pohcy, it was agreed and provided, that " in case the said John C. Ruse shall not pay the said annual premium on or before the several days herein- before mentioned for the payment thereof, then, and in every such case, the said company shall not be liable to the payment of the sum or any part thereof; and this policy shall cease and deter- 470 SUPREME COURT OF NEW YORK. Ruse V. Mutual Benefit Life Insurance Company. mine." The policy is without date ; but was countersigned by the defendants' agent, at Columbus, Georgia, on the 15th day of July, 1846, and delivered by him to the plaintiff, on or about that day ; the plaintiif, at or about the time of the delivery, paying to the agent $97.40, one year's premium. When the plaintiff made his application for the insurance, in April, 1846, the defendants' agent handed to him a pamphlet issued by the defendants, entitled " Pro- spectus," &c., which contained these clauses : " 20th. Every precaution is taken to prevent a forfeiture of policy." " A party neglecting to settle his annual premium within thirty days after it is due, &c., forfeits the interest he has in the policy." The premium for the second year was not paid on the 10th day of April, 1847. Bugbee died on the 14th day of April, 1847, and due notice of his death was given to the defendants. After the defendants' agent had heard of Bugbee's illness, and on the 13th day of April, 1847, the plaintiff tendered to the agent the second year's premium, which the agent refused to receive. The plaintiff brings this suit to recover two thousand dollars, the amount for which the life was insured, and interest. The defendants insist on the fact, that the second year's premium was not paid on or before the 10th day of April, according to the terms of the policy, as a defence. The question in the case, we think, is, admitting, according to the terms of the policy itself, such default in the payment of the premium to be a good defence to the plaintiff's claim ; whether the defendants are not estopped by their own act and declaration — their " Prospectus " — from setting up and insisting upon such default, as against the plaintiff's claim. We think they are so estopped. The policy is one entire contract of insurance, not from year to year, as the premiums should be paid, but for the whole term of the life of Bugbee, on condition that if the annual premium was not paid on the 10th of April the policy should cease and be void. The question is not, therefore, as the counsel of the defend- ants, on the argument, seemed to suppose, whether the " Pro- spectus " issued by the company, substantially declaring that the plaintiff should have thirty days after the 10th of April within which to pay the premium, without incurring a forfeiture, could or did operate as a continuance of the policy after the 10th of April ; but the question is in this case, whether the " Prospectus " may FEBRUARY, 1858. 471 Ense V. Mutual Benefit Life Insurance Company. not be looked upon as a waiver of the forfeiture by the defendants, or whether they can now set up the condition of forfeiture in the policy against their own written declaration to the plaintiff, with reference to which it is to be presumed the plaintiff accepted the policy and neglected to pay the annual premium punctually on the 10th of April, 1847. If the defendants, by their " Prospectus," induced the plaintiff to act as he did, and rest upon its assurance of a credit of thirty days from and after the 10th of April, for the payment of the premium, then the forfeiture was caused by their own act ; and it certainly would not be right or legal to permit them to take advantage of a forfeiture which they were the cause of. It is quite immaterial, whether the " Prospectus " of the com- pany is held to be a waiver of the forfeiture, or to estop them from insisting upon it in this case ; in either view they have no defence ; and the plaintiff, having tendered the second year's premium within the thirty days, is entitled to recover. An estoppel is where one having wilfully, by act or words, in- duced another to act in a particular way, is not permitted by the law to gainsay such act or words to the injury of such other, even by speaking the truth. Upon the question of the defendants' right to insist upon a for- feiture of the plaintiff's interest in the policy in this case, the case of Buckhee v. The United States Ins. Co. 18 Barb. 541,-^ appears to be in point against such right, and the general principles of justice upon which estoppels are permitted to operate, certainly justify their application in this case. As to the other point raised by the defendants, that there was no proof that the plaintiff had an insurable interest in the life of Bug- bee, we think that the plaintiff's application in writing for the in- surance, which was accepted by the defendants, and in which the plaintiff stated that he had an interest in the life of Bugbee to the full amount of the sum of §2,000, sufficient proof of such interest as between the parties, if any proof of interest was necessary. The judgment appealed from must be affirmed with costs. Note. — There is a discrepancy, it will be seen, between the statement of tK case by the court and that preceding, respecting the time when the tender of the premium was made ; the learned judge stating that the tender was made the day hefore Bugbee's death, while we have stated that it was not made until after the agent had heard of the event. This discrepancy occurs in the origi- 1 Ante, 406 472 COURT OF APPEALS OF NEW YORK. Ruse V. Mutual Benefit Life Insurance Company. nal report of the case in 26 Barbour ; and the mistake is probably Judge Suth- erland's. It will be seen from the report of this case in the court of appeals, infra, that Selden, J., states that the premium was tendered " on or about the day of Bugbee's death ; " but in the reporter's statement of the case, 23 N. Y. (9 Smith,) 517, it is said that the tender was made a day or two after the death, which corresponds with the reporter's statement in 26 Barbour, from which our own is taken. Reference to the case of The Mutual Benefit Life Ins. Co. v. Euse, 8 Geor- gia, 534, reported in this volume, ante, 83, which is evidently the same case as the above, — a singular fact, — confirms the impression that Judge Sutherland is mistaken ; and that the tender was not in fact made until after the death of Bugbee. If this be the fact, the case appears in an aspect entirely different from that presented either in the supreme court or in the court of appeals. The point seems to have been wholly overlooked by both the learned courts, in all the stages of this important case, that a tender made after the death of Bug- bee, though within the thirty days, would be unavailing to revive the policy. A tender, to be effectud after the regular time of payment, must be made before loss. This is well settled ; and this is the very ground upon which the Georgia case of The Mut. Benefit Life Ins. Co. v. Ruse, ante, 83, was decided. See that case and the authorities cited. We are informed by Mr. Bradley, counsel for the company, that the remitti- tur in the case shows that the tender was made aft«r the death, and that he presented this very point on a motion for judgment for the defendants, but the court failed to notice it. Judgment reversed in the court of appeals. See infra. Ruse vs. The Mutual Benefit Life Insurance Company. (23 N. Y. (9 Smith,) 516. Court of Appeals, September, 1861.) Prospectus varying terms of policy. — A prospectus of a life insurance company, not referred to in the policy, nor any way annexed thereto, is inadmissible in evidence to vary the policy. CoMSTOCK, C. J., and Davies and James, JJ., dissented. Insarable interest. — One who insures the life of another must have an interest in such life; and the fact that a company issued a life policy to one who represented in the application that he had an interest in the life in question, is xioi prima fade evidence of such interest. Davtes and Mason, JJ., dissented. The case is stated at length in the report from the supreme court, supra. Alvin 0. Bradley, for the appellant. John W. Edmonds, for the respondent. Selden, J. By the policy upon which this action is brought the defendants insured the life of Ira D. Bugbee for the term of his natural life, for the sole use of the plaintiflF, in consideration of the sum of $97.40 in hand paid, " and of the annual premium of ninety-seven dollars and forty cents, to be paid on or before th« SEPTEMBER, 1861. 473 Ruse V. Mntaal Benefit Life Insurance Company. tenth day of April in every year during the continuance " of the pohcy ; and by a subsequent clause it was provided that, in case the plaintiff should not pay the said annual premiums " on or before the day " previously mentioned for the payment thereof, the policy should " cease and determine," A memorandum upon the back of the policy indicated its date to be the 10th day of April, 1846, although it was not actually delivered until the 15th of July of that year. Bugbee died upon the 13th or 14th of April, 1847, and at that time the premium for the second year of the policy had not been paid. It was, however, tendered on or about the day of Bugbee's death to the defendants' agent, who refused to receive it. From this brief statement it is plain that, if we are to look to the policy alone, as containing the contract between the parties, the obligation of the defendants ceases upon the failure of the plaintiff to pay the annual premium upon the 10th day of April, 1847. Nothing could be more explicit than the language of the policy on this subject, and no reason can be given why this provision should not take effect according to its terms, unless it is to be regarded as modified by the printed prospectus issued by the defendants and delivered by their agent to the plaintiff before his application for the policy. The clauses in the prospectus upon which the plaintiff relies are the following, viz. : "Every precaution is taken to prevent a forfeiture of the pohcy." " A party neglecting to settle his annual premium within thirty days after it is due, or paying assessments within the sixty days specified within the charter, or refusing to give satisfactory security upon the note, forfeits the interest he has in the poKcy." These clauses are not connected in the prospectus, but are sev- eral pages apart from each other. The question first to be considered on this subject is, whether the prospectus is to be treated as part and parcel of the contract between the parties. It was not referred to in, nor in any manner annexed to the policy. Nothing is better settled than that, where two parties have entered into a written contract, all previous nego- tiations and propositions in relation to such contract, whether parol or written, are to be regarded as merged in the final agreement. Such preliminary matter may sometimes be admissible under the rule which admits evidence of the surrounding circumstances for the purpose of explaining an ambiguous expression; bnt never 474 COURT OF APPEALS OF NEW YORK. Buse V, Mutual Benefit Life Insurance Company. where the terms of the contract are clear and explicit. The legal inference in all such cases, if the contract varies from what has been previously said or written, is, that the parties, upon further consideration, have changed their views. Policies of insurance are no exception to this rule, as a brief reference tc the cases on the subject will clearly show. It was held by Lord Mansfield, in the case of Pawson v. Barne- velt, that a written memorandum in regard to the subject of insur- ance, which was shown to the underwriter at the time of subscribing, and then wrapped up in the policy, did not thereby become a part of the contract ; and, in the subsequent case of Bize v. Fletcher, the same judge ruled that a strip of paper describing the condition of the ship insured, although wafered to the policy itself, was to be regarded as a representation merely, and not as a part of the pol- icy. Doug. 12, note 4. It has, however, been decided in this state that where, in mak- ing the policy, the insurance company used a printed form covering one half of a sheet, upon the other half of which was a printed memorandum headed " conditions of insurance," this memorandum was to be treated as a part of the contract. The juxtaposition of the papers is, in such a case, considered as affording prima facie evidence that such was the intention of the parties. Boberts v. The Chenango Mut. Ins. Oo. 3 Hill, 501. Murdoch v. The Same, 2 Comst. 210. No case seems to have gone further than these in incorporating extrinsic documents into a policy of insurance. Where the collateral writing is referred to in the policy itself, it has been held, both in England and in this country, that such writ- ing is to be taken as a part of the contract. Routledge v. Burrell, 1 H. Bl. 255. Worsley v. Wood, 6 Term, 710. Duncan v. The Sun Fire Ins. Co. 6 Wend. 488. In the last of these cases it was said by Cowen, J., that such memoranda "have the same force and effect as if contained in the body of the policy." It would seem, however, from the subsequent cases in this state, that to give them this effect they must be referred to in terms as form- ing a part of the policy, or at least in such a manner as to show that this was intended. The Farmers' Ins. and Loan Co. v. Snyder, 16 Wend. 481. Burritt v. The Saratoga Co. Mut. Fire Ins. Co. 5 Hill, 188. Jennings v. The Chenango Mut. Ins. Co. 2 Denio, 75. Egan v. The Mut. Ins. Co. of Albany, 5 Denio, 326. There is, therefore, not the slightest authority for holding that anj SEPTEMBER, 1861. 475 Ruse V. Mutual Benefit Life Insurance Company. preliminary or collateral writing whatever, which is neither an- nexed to nor referred to in the policy, can be taken as a part of the contract of insurance ; and the general principles of law are directly opposed to any such doctrine. But it is contended that if the prospectus is not to be regarded as incorporated into the contract itself, it is nevertlieless obligatory upon the company as a representation. Undoubtedly a written or printed statement delivered by the agent of the company to an ap- plicant for insurance, relating directly to the insurance applied for, may amount to a representation on the part of the company ; but as a representation merely, the prospectus in this case cannot aid the plaintiff. A representation by the assured, if false, avoids the policy. Here it is not sought to avoid, but to enforce the policy. The only mode, therefore, in which the prospectus can be made to aid the plaintiff is by treating the company as absolutely bound by its terms to the same extent as if it had been incorporated into the policy. The supreme court accomplished this by holding the com- pany estopped by the terms of the prospectus ; but this was clearly a misapplication of the doctrine of estoppel. It lias never, I think, been held when the conditions of a contract proposed in the pre- liminary negotiations between the parties, varied from the contract as finally consummated, that, although such conditions form no part of the contract, they may, nevertheless, operate as an estoppel upon the parties. The reasons given why these introductory prop- ositions do not become incorporated into the contract, viz. : that they are presumed to have been subsequently waived or aban- doned, conclusively repel all idea of an estoppel in such a case. It follows that the policy must be considered as embracing the entire contract between the parties ; afid the plaintiff must abide by the explicit provision that the policy should cease and determine in case of a failure to pay the premiums according to its terms. But assuming that the prospectus became a part of the policy, and had the effect to modify its provisions in respect to the time for the payment of the premium, it is still insisted that there could be no recovery without proof that the plaintiff had an interest in the life of Bugbee. In considering this point it is necessary first to ascertain by what law the question is to be determined. The contract was actually made between the plaintiff and an agent of the defendants in the State of Georgia ; but the defendants, as is to be inferred from the case, were incorporated in the State of New 476 COURT OF APPEALS OF NEW YORK. I • Ruse V. Mutual Benefit Life Insurance Company. Jersey, and the policy purports upon its face to have been executed at the city of Newark in that state. Under these circumstances, although the suit is brought in this state, the interpretation and validity of the contract cannot depend upon the laws of New York. The lex fori governs as to the remedy or remedies for enforcing the contract, but not as to its construction or the legal rights aris- ing under it. These depend usually upon the laws of the place where the contract is to be performed, although where there is anything in the circumstances to show that the parties had specially in view the law of the place where the contract is made, this law will govern, although the contract is to be performed elsewhere. I see nothing in the present case to indicate that the parties con- tracted with special reference to the law of Georgia. As no other place was mentioned, payment was of course to be made in New Jersey where the principal office of the company was located. The contract was to be performed there, and hence, upon the gen- eral principle adverted to, the validity of the contract and the rights and obligations of the parties under it must depend upon the law of New Jersey. The defendants upon the trial read two sections from the stat- utes of New Jersey as having some bearing upon the point under consideration ; but neither of these can, in my view, affect the question. The only one which could reasonably be supposed to do so, is the following : " All promises, agreements, notes, bills, bonds, contracts, judgments, mortgages, or other securities or con- veyances which shall be made, given, granted, drawn, entered into, or executed by S,ny person or persons, when the whole or any part of the consideration of such promises, agreements, notes, bills, bonds, contracts, judgments, mortgages, or other securities or conveyances shall be for money, goods, chattels, or other valuable thing or things whatsoever, were laid or betted, at cards, dice, billiards, tennis, bowls, shuffleboard, or any other game or games, or any cockfighting, or other sport or pastime, or for the reimburs- ing or repaying any monej"- knowingly lent or advanced at the time and place of such play, cockfighting, or other sport or pastime, to any person or persons so gaming, laying, or betting, or who shall at such time and place so play, lay, or bet, shall be utterly void and of none effect." This section does not reach this case. It avoids all contracts made for money, &c., won or betted at any game or games, or SEPTEMBER, 1861. 477 Ruse V. Mutual Benefit Life Insurance Company. upon cockfighting or other sports. It is aimed particularly at games, and does not avoid wagers in general. The policy in this case had nothing to do with any game or sport of any sort, and is not, therefore, within the purview of the act. Hence its construc- tion and effect must depend upon the general laws of New Jersey, which, as no evidence was given on the subject, are presumed to be the same as the common law of this state. Our inquiry, there- fore, is whether at common law, independent of any statute, it is essential to the validity of a policy, obtained by one person for his own benefit upon the life of another, that the party obtaining the policy should have an interest in the life insured. A policy obtained by a party who has no interest in the subject of insurance is a mere wager policy. Wagers in general, that is, innocent wagers, are, at common law, valid ; but wagers involving any immorality or crime, or in conflict with any principle of public policy, are void. To which of these classes, then, does a wagering policy of insurance belong ? Aside from authority this question would seem to me of easy solution. Such policies, if valid, not only afford facilities for a de- moralizing system of gaming, but furnish strong temptations to the party interested to bring about, if possible, the event insured against. In respect to insurances against fire, the obvious tempta- tion presented by a wagering policy to the commission of the crime of 8-rson has generally led the courts to hold such policies void, even at common law. It was so held in England at an early day by Lord Chancellor King, in Lynch v. Dalzell, 4 Bro. P. C. 431, and by Lord Hardwicke in Saddlers' Company v. BadcoeJe, 2 Atk. 554 ; and the courts in this country have generally acquiesced in and approved of the doctrine. In this state such policies would fall under the condemnation of our statute avoiding all wagers and gambling contracts of every sort ; but they would, no doubt, also be held void independently of that statute at common law. In Howard v. The Albany Insurance Oompany, 3 Denio, 301, Bron- son, Ch. J. asserted the necessity of an interest in the assured in all such cases, referring, in support of the doctrine, not to the stat- ute but to the decisions of the Lord Chancellors King and Hard- wicke, (supra.') In regard, however, to marine insurances, a different rule seems to have prevailed in England ; and the cases of Olendining v. Church, 3 Caines, 141, Juhel v. Church, 2 John. Cas. 333, and 478 COURT OF APPEALS OF NEW YORK. Euse V. Mutual Benefit Life Insurance Company. Buchanan v. Ocean Insurance Company/, 6 Cow. 318, are sup- posed to have established the same rule in this state. No reason, that I am aware of, has ever been given for this difference between fire and marine policies. The latter, when of a wagering char- acter, are vicious and evil in their tendencies as well as the former, and have been generally considered as noxious and dangerous whenever the question has arisen. They should, therefore, as it would seem, for the reasons applied to policies against fire, have been held void, as contrary to public policy. The distinction between these two classes of policies is, in my view, a mere matter of accident, and grew out of the peculiar manner in which the question was presented in respect to marine policies. The case of Dejpaba v. Ludlow, [1] Comyns, 361, shows how the doctrine that wagering policies upon ships are valid origi- nated. The defendant there had insured the plaintifiF, " interest or no interest." On the trial it was objected that the plaintiff could not recover unless he had a property in the ship ; but the court said that the insurance was good, and that the import of the clause, " interest or no interest," was that the plaintiff had no occasion to prove his interest. Had the question been directly presented in this case whether a mere wagering policy was valid, the decision would, I think, have been different. The case itself shows the court to have supposed that the plaintiff actually had an interest; and it is apparent from the authorities that it had always been previously held in suits upon policies not containing the words "interest or no interest," or other equivalent words, that the plaintiff must aver and prove that he had an interest. This is dis- tinctly asserted by Lord Hardwicke in the case of Saddlers' Com- pany v. BadeocJc, supra, and in the case of Craufurd v. Hunter, 8 Term, 14, the counsel, on looking into the precedents at the request of the court, found that it had been the uniform practice in suits upon marine policies to insert an averment of interest. To me, therefore, it seems clear that the decision in Depaba v. Lud- low was made because the court failed to distinguish between a waiver of proof at the trial, which the defendant was, of course, at liberty to make, and a waiver in the policy itself, by which it was converted into a mere wager. In consequence of this case, and others which followed it, Par- liament was forced to interfere, as it did by the act of 19 George II. ch. 37, reciting the mischiefs which had arisen from the making SEPTEMBER, 1861. 479 Euse V. Mutual Benefit Life Insurance Company. of marine insurances, "interest or no interest," and prohibiting them thereafter ; and when the question subsequently arose in Craufurd v. Hunter, supra, as to the validity at common law of a mere wagering policy upon a ship it was held to be valid solely upon the authority of the recitals in this act. It was in this indi- rect way that the doctrine in question as to marine policies first crept into the law. It was important to show this, because the effect of what I consider as the inadvertence of the court in De- paha V. Ludlow was not confined to policies upon ships. It must have been, I think, in consequence of the doctrine initiated by that case that it came to be understood in England that in insurances upon lives it was not necessary at common law that the party to be benefited by the policy should have any interest in the life insured. There may not have been any direct decision to that effect ; yet that such was the prevalent impression is to be inferred from the enactment of the statute of 14 George III. ch. 48, prohibiting in- surance upon lives where the person insuring had no interest in the life. Angell, in speaking of this statute, says : " At common law it seemed to have been thought unnecessary that, at the time of effecting the policy, the assured should have had any interest which might be prejudiced by the happening of the event insured against." Ang. on Life and Fire Ins. § 297. In New Jersey they have no such statute ; and the question now to be decided, there- fore, is, whether the impression which seems to have prevailed in England prior to the statute of 14 George III. was well founded.-' That impression does not appear to be supported by any ad- judged case. Life insurance appears not to have been practised to a great extent in England until a comparatively modern date, and the probability is that as soon as such insurance became frequent the evils of gambling in them was so apparent that Parliament in- terposed, upon the assumption that the same rule would be applied to them as to insurances upon ships. I cannot regard that act as affording any very strong evidence that at common law wagering policies upon fives were valid. It seems to me that were the naked question presented whether such a policy comes within the admit- ted exception to the validity of wagers in general, that is, whether it is repugnant to a sound public policy, no court not hampered by some unfortunate or mistaken precedent, would hesitate for a moment in holding the affirmative. In Massachusetts, in Vermont, 1 See Trenton Mut. Life Ins. Co. v. Johnson, ante, 327. 480 COURT OF APPEALS OF NEW YORK. Euse «. Mutual Benefit Life Insurance Companj-. in Pennsylvania, and I believe other states, it has been so held in regard to wager policies in general. But policies without interest, upon lives, are more pernicious and dangerous than any other class of wager policies ; because temptations to tamper with life arp more mischievous than incitements to mere pecuniary frauds. Chancellor Kent was evidently embarrassed by the position of this question in England. He commences his remarks on the sub- ject by saying that " the party insuring must have an interest in the life insured," anS then immediately' refers to the English stat- ute of 14 George III. chapter 48, hut says not a word upon the question whether at common law an interest was necessary. He, however, concludes by saying that " the necessity of an interest in the life insured in order to support the policy prevails generally in this country, because wager contracts are almost universally held to be unlawful, either in consequence of some statute provision or upon principles of the common law." 3 Kent Com. 368. This obscure manner of treating the subject is plainly to be at- tributed to the reluctance of the learned author to admit (notwith- standing the impression that appears to have obtained in England) that gambling in life insurance could be tolerated at common law. That impression has been here traced, as I think, with justice to the very questionable doctrine of the English courts in regard to marine policies. It has never, that I am aware of, been recognized and adopted by any American court, and is so obviously repugnant to the plainest principles of public policy that it is somewhat sur- prising that it should ever have existed. My conclusion, therefore, is that the statute of 14 George III. avoiding wager policies upon lives was simply declaratory of the common law, and that all such policies would have been void independently of that act. It is said that the defendants, by issuing the policy upon the representation of the plaintiff that he had an interest, have admit- ted his interest, and that the production of the policy is at least prima facie evidence of such interest. This position cannot be sustained. All the older authorities show that even in actions upon marine policies not containing the clause "interest or no interest," it was necessary to aver, and of course to prove the in- terest of the plaintiff. It is an indispensable part of the plaintiff's case to be made out affirmatively at the trial. Upon this ground, therefore, as well as that before considered, the judgment of the supreme court must be reversed ; and there must be a new trial, with costs to abide the event. JUNE, 1862. 481 Euse V. Mutual Benefit Life Insurance Company. All the judges, except Daties and Mason, JJ., concurred that the plaintiff must show an interest in the life insurance. On the question of evidence in respect to the prospectus being admissible as part of the policy or entering into the contract, Comstock, Ch. J., Davies and James, JJ., dissented. Judgment reversed, and new trial ordered. See Mut. Benefit Life Ins. Co. v. Ruse, ante, 83, in which it seems to have been held by a majority of the court that the prospectus was admissible. See this case again in the court of appeals, on this point, infra. See also note to the case, supra. As to insurable interest, see Lord v. Ball, ante, 154, and cases cited. Ruse vs. The Mutual Benefit Life Insurance Company. (24 N. Y. (10 Smith,) 653. Court of Appeals, June, 1862.) Prospectus. — The court intimate on rehearing that if the only question involved were as to the admissibility of the prospectus, they would now allow a reargument of the case. But the point is left undecided; the plaintiff having proved no insurable interest, so as to render the decision of the point available to him. John W. Edmonds, for the plaintiff. Alvin 0. Bradley, for the defendants. Davies, J. A motion is made for a reargument of this case. It was disposed of by this court upon two, points, (23 N. Y. 516 :) 1. That a prospectus distributed by a life insurance company, stating that a party neglecting to settle his annual premium within thirty days after it is due forfeits the interest in his policy, was in- admissible to vary or control an express provision in a policy for life, that it should cease and determine in case of a failure to pay the premiums according to the terms of the policy. The policy de- clared that if the annual premium was not paid on or before the 10th day of April in each year, during the continuance of the pol- icy, it should cease and determine. 2. That a recovery cannot be had upon a life policy, where the party taking it out does not prove an interest in the life insured. In this case the plaintiff gave no evidence of any pecuniary inter- est in the life of Bugbee, whose life he insured, or of any relation- ship to him. Both these points were considered and decided by this court. The motion for the reargument is based upon the ground that the attention of the court was not called to several decisions in Elng- 31 482 COURT OF APPEALS OF NEW YORK. Base V. Mutual Benefit Life Insurance Company. land, where a contrary rule had been adopted in reference to the prospectus issued forming a part of and controlling the terms and conditions of the policy. The cases referred to ( Wood v. Dwar- ris et al. 11 Exch. 493 ; Wheelton v. Hardisty, 92 Eng. C. L. 231 ; and Collett v. Morrison 9 Hare, 173) do certainly hold that the prospectus might equitably be regarded as forming a part of and controlling the terms of the policy. It is not improbable that an examination of these cases would have led this court to a different conclusion than the one it arrived at upon this' point. If this had been the only point upon which the case had turned' in this court, it might have felt inclined to have ordered a reargu- ment, and permitted the parties again to discuss it, and have re- viewed our opinion in the case. But this court held the second point fatal to the plaintiff's recovery in this case, and no sugges- tion is now made, that upon this point any mistake or error has been committed. It was carefully considered and is fully discussed in the opinion, andVe see no reason for permitting it to be re- opened and reconsidered. If we should come to a conclusion upon a reargument favorable to the plaintiff upon the first point, it would not avail him anything, as our decision upon the second point would remain adverse to him, and would necessarily control the disposi- tion of the case. The motion for a reargument is therefore denied, with costs. Motion denied. Note. — The. case of Wood v. Dwarris, 11 Exch. (Hurl. & G.) 493, (1856,) referred to supra, was a declaration on a policy of insurance in which the defend- ant pleaded that the policy was made upon the terms of a previous proposal, and upon the express condition, that if any statement in the proposal was un- true, the policy should be void ; and that a particular statement was untrue. Replication, that before the policy was made, the defendants issued a prospec- tus containing a statement that all policies effected by them should be indis- putable, except in cases of fraud ; and that the plaintiff effected the policy on the faith of such representation. Rejoinder, that the policy was made on the basis of the proposal ; and that there was not, before or at the time of making the policy, any promise by the defendants that the policy should J)e indisputable except in cases of fraud, save that, before the proposal, the defendants issued the prospectus containing such statement. Held, that the rejoinder was bad, and that the replication was a good avoidance of the plea. In Wheelton v. Hardisty, 8 El. & B. (92 Eng. C. L.) 232, (1857,) a similar question arose ; but there was no proof that the plaintiffs were induced by the prospectus to effect the insurance ; and the court held that the jury were not warranted in finding for the plaintiffs. MAY, 1858. 483 Mutual Life Insurance Company of New York v. Wager. In Collelt V. Morrison, 9 Hare, 162, (1851,) the policy was made out at the office so as to vary the terms of the previous agreement ; and it was held that eqjiity would interfere and deal with the case on the footing of the agreement and not of the policy. In Directors, Sj-c. v. Kisch, Law Kep. 2 H. L. 99, (1867,) a prospectus contain.' ing material misrepresentations, by which the complainant was induced to enter into a contract from which he sought relief, stated that " the engineer's report, maps, plans, &c., may be inspected, and further information obtained at the offices of the company." The complainant signed the printed form of applica^ tion, in which.it was stated that he agreed to be bound by the conditions and regulations contained in the memorandum and articles of association. An ex- amination of all these papers would have afforded him the information, the want of which he alleged as a ground for rescinding the contract. Trusting to the representations, he did not examine all. Held, that his neglect to do so was no answer to his demand to be relieved from the contract. See also Oakes v. Tur- quand. Law Eep. 2 H. L. 325. See the preceding reports of this case, supra, note, and citations. The Mxittjal Life Insurance Company of New York vs. Ambrose Wager. (27 Barb. 354. Supreme Court, May, 1858.) Misrqiresentation. Warranty. Agency. — W. insured the life of F. for his (Ws.) benefit- F. signed a declaration, not made part of the policy, that he had not been afflicted with certain diseases tending to shorten life; and W., the defendant, signed a declaration, which was made part of the policy, that F. had not been afflicted with any of the diseases referred to, to his hrmoledge. Bdd, that what would otherwise have been a warranty, was in this case so qualified by the expression to Ms knowledge, that in an action by the com- pany against W. to recover the insurance, paid to him in ignorance that the statements respecting F's health were false, they could not recover if F. (who is to be considered as the agent of W.) had none of the diseases mentioned, or if he had either of them, and W. was ignorant of the fact; and the burden of proof was upon the company to show knowledge on the part of W. Held, also, that the company, by putting the charge of fraud and misrepresentation against W. on the ground that the knowledge of F. was the knowledge of W., could not recover without proof of fraud on the part of W., in the mak- ing of the original contract of insurance ; in other words, that the company could not re- cover the monsy paid by them on the ground solely that the representations of F. were false, and that they were ignorant of the fact when they paid the money. Ingbaham, J., dissented. Insurable interest. — If in the above case W. obtained the insurance to secure himself the amount of his prior and subsequent advances, and so notified the agent at the time, he was entitled to the amount due at the death of F., and if he knowingly claimed and re- ceived more than that amount, the company were entitled to recover the excess. This action was brought to recover back from the defendant $2,566.34, paid him by the plaintiffs October 25, 1851, being the amount insured by them in his favor December 18, 1845, on the life of one Woodward Frisbie, who died September 30, 1851. The 484 SUPREME COURT OF NEW YORK. Mutual Life Insurance Company of New York v. Wager. plaintiffs claimed to recover on the ground of an alleged false and fraudulent declaration of the defendant made at the time of effect- ing the insurance : 1st, that Prisbie was not, to the defendant's knowledge, " afBicted with spitting of blood, or any disorder which tends to the shortening of life ; " and 2d, that he had an interest in Frisbie's life to the amount of $2,500 ; and also upon the ground that, when applying for payment of the loss, he fraudulently con- cealed the fact that Frisbie died of consumption, and represented that he had died of a disease of the lungs of recent 6rigin, accom- panied with diarrhoea. The case was tried before Mr. Justice Mitch- ell, at the New York circuit. A declaration by Frisbie, dated December 11, 1845, was produced, certifying that he had not been afflicted with (among other things) spitting of blood, and was not then afflicted with any disorder which tends to the shortening of life. The defendant signed a declaration dated December 8, 1845, to the same effect, as far as he knew, and that he was interested in Frisbie's life to the amount of $2,600. Wager, the defendant, and Frisbie, the decedent, resided at Rhinebeck when the policy was effected. Application was made for it to Fonda, the agent of the company at Poughkeepsie. The applicant produced the certifi- cate of Dr. Freligh, a neighbor, whicli stated that Frisbie had slight chronic bronchitis. Fonda required an examination by Dr. Thomas of Poughkeepsie, who was the regular examiner for the company. Fonda and Thomas were produced as witnesses on tlie trial. The examination was full and careful, and with a knowl- edge on the part of the company that Frisbie had had chronic brorir chitis. The proofs furnished on the application for payment of the loss were read in evidence. By these it appeared that Frisbie, with his wife, went from Rhinebeck in September, 1851, to visit his relatives at Coventry, Chenango County, and there died of " a dis- ease of the lungs, accompanied with diarrhoea." Dr. Eliphalet Piatt, Mrs. Sarah T. Weaver, widow of decedent, Peter T. Hev- enor, Thomas Reed, WilHam Weaver, and David Uhl, witnesses for the plaintiff", gave testimony tending to show that Frisbie might have had a spitting of blood within the meaning of the representa- tion. Dr. Martin Freligh, Dr. Federal Vanderburgh, Dr. Rod- man Bartlett, and John Benner, gave testimony leading to an op- posite conclusion. The policy provided that if the declaration made by Wager himself, dated December 8, 1845, should be found in any respect untrue, the same should be void. Certain evidence MAY, 1858. '486 Matual Life Insurance Company of New York ». Wager. was offered tending to throw doubt on the fact of any indebtedness by Frisbie to Wager. Fonda, the agent, testified that, at the time of the insurance, Wager stated that he had made Frisbie some ad- vances, and expected to advance him more, and that the policy was effected to protect himself. Frisbie had failed, and made an as- signment to Wager in 1845. Wager settled up Frisbie's affairs, and from time to time accommodated him with money to carry on his business. The judge charged the jury that if Frisbie had had spitting of \)lood, and Wager knew it, the plaintiffs were entitled to recover on that ground ; but that Frisbie's knowledge of it would not be sufficient to charge the defendant, if he, the defend- ant, was ignorant of it. The judge also charged, that if Wager obtained the insurance to secure himself the amount of his prior and subsequent advances, and so notified the agent at the time, he was entitled to the amount due at Frisbie's death, and if he know- ingly claimed and received more than that amount, the plaintiffs were entitled to recover back any excess paid by them. He fur- ther charged, that if the company had resisted, the burden of proving his claim would have rested on Wager ; but in this suit, brought to recover back on the ground of fraud and misrepresenta- tion what they had paid as a fair loss, the burden of proof lay upon the company. The counsel for the plaintiffs excepted to the charge on the grounds, 1. That the rule of proofs as laid down therein was not correctly laid down. 2. That the concealment of the fact that Frisbie was afflicted with spitting of blood was a fraud upon the company, and that the distinction laid down by the judge had a tendency to mislead the jury. 3. That the joint statement by Frisbie and Wager, that the former had never been afflicted with spitting of blood, did make Wager responsible for the truth of Frisbie's statement. 4. That the charge that Wager was not to be responsible in this action for Frisbie's knowledge of any facts, unless the knowledge was brought to him, misled the jury. The jury found a verdict for the defendant, and the plaintiff moved for a new trial. J. Blunt ^ J. Miller, for the plaintiffs. 1. The charge of the judge, that " in a suit by the insured against the company the burden of the proof would fall upon the insured, but as the com- pany sues on a charge of fraud and misrepresentation, after pay- ing the insurance as for a fair loss, the burden of the proof ia 486' SUPREME COURT OF NEW YORK. Mutual Life Insurance Company of New York v. Wager. changed and thrown upon them," is erroneous. (1.) In the case of a defence by the company to a suit against them ou the policy, the law presumes the declarations made by the insured to be true, and the burden of showing them to be otherwise would devolve upon the company ; but when the company had, by their proof, es- tablished a prima facie case of the falsity of such declarations, then the burden would be shifted, and it would be the duty of the plaintiff in such action to satisfactorily explain or overcome by evi- dence the facts establishing such prima fade case. (2.) In an ac- tion by the company to recover back the money, the same rules of evidence prevail, with the single difference, that in the action to recover back the money, the defendant, in answer to the proof of facts showing such prima facie case, may show, as a sufficient an- swer, that the company paid the money with full knowledge of those facts. (3.) The fact that the plaintiffs allege in their decla- ration that the defendant " falsely and fraudulently declared," does not vary the rule. (4.) If the proofs in the action entitle the plaintiffs to recover therein, provided the words " falsely and fraud- ulently " had been omitted in the complaint, then they wer.e enti- tled to a recovery, notwithstanding such insertion. The truth of such declarations were the principal matters litigated on the trial. And if it appeared that the declarations were untrue in fact, al- though made by the defendant in good faith, and that the company,' relying on the truth of such declarations, made the payment, then the company are entitled to recover the money back on the ground of a mutual mistake of fects. If, therefore, the plaintiffs failed to show that they were either " falsely or fraudulently " made, it was no variance or omission which misled the defendant to his preju- dice, in maintaining his defence upon the merits ; and should have been so regarded by the court. See Code, § 169, 2. The distinction made in the charge of the judge, that al- though in a suit by the defendant against the company, Frisbie might be considered the agent of the defendant, so far that what- ever Frisbie knew of himself would be deemed as known by the defendant, " that rule would not apply under the pleadings in this cause, and the nature of this action " was erroneous. (1.) The complaint states that the defendant declared that Frisbie was not, to the defendant's knowledge, at the time of the insurance, af- flicted with spitting of blood. That such declarations were the basis of the insurance of Trisbie's life ; that the company, believ- MAY, 1858. 487 Mutual Life Insurance Company of New York v. Wager. ing the declaration, made the insurance. That after they had paid the money, they discovered for the first time that such declarations of the defendant proved untrue. (2.) The complaint also alleges that the insurance " was subject to a certain condition " thereunder written, whereby it was provided that if the said declaration made by the said defendant, and upon the faith of which said policy was granted, should be found in any respect i/zntrue, then, and in such .case, the said policy was to be null and void." (3.) If the com- pany had been sued on the policy, they would have been obliged to plead these very matters in defence, with the exception of the averment that the company discovered the declarations to be un- true after the payment to the defendant. (4.) And it cannot be that the defendant should be charged with knowledge, when the action requires him to overcome facts interposed by way of defence, and that he is not chargeable with knowledge, when the same facts are set up as a ground of claim against him. The exception in this behalf is well taken. 3. So much of the judge's charge as states that the defendant is not affected by Frisbie's knowledge of any fact, if the defendant had no knowledge of the same fact, was erroneous, and the fourth exception is well taken. (1.) The condition was that the policy should be void, if " the declaration " should be found in' amy re- spect untrue. (2.) The declaration was a statement in regard to facts. (3.) These facts were the basis of the agreement, and upon the faith of which the policy was granted ; not the knowledge of the defendant as to the truth of the facts. (4.) If these facts were untruly stated in such declaration, then the policy became void by its very conditions, whether the defendant did or did not know they were untrue. (5.) If untrue, Frisbie, in the nature of things, must have known it ; and as their untruth avoided the policy, Frisbie's knowledge did affect the defendant, although the defendant had no knowledge of the same fact. (6.) In making the joint averment that Frisbie never had bleeding at the lungs, the defendant is to be deemed responsible for the truth of the statement, and as conusant of all Frisbie's knowledge on that point. (7.) Where representations are made by an agent of the insured, he is responsible for the truth of the agent's averments. 2 Duer on Ins. 705, 707. 3 Bligh, 205. 1 Term, 12. Maynard v. Rhode, 1 Carr. & P. 360. (8.) The statement as to the bleeding at the lungs, even if it had occurred but once, is material, and its 488 SUPREME COURT OF NEW YORK. Matual Life Insurance Company of New York v. Wager. omission is fatal to the policy. The charge of the judge, there- fore, in confining the spitting of blood to such as might endanger life, was erroneous. In Greach v. Ingalls, 14 Mees. & Wels. 96, the judge's charge on that point, similar to the charge in this case, was held erroneous. (9.) Where a creditor assures the hfe of his debtor, and allows such debtor to make misrepresentations as to his health, the creditor is bound by them, even if he be ignorant that they were false. 1 Garr. & P. 360. 5 Dowl. & Ryi. 266. 5. Bing. 603. 4. Assuming that the charge is in all respects corretc, then the verdict should be set aside on the ground of its being against evi- dence and the ch^ge of the judge. (1.) The judge charged the jury in these words : " If, however, you should agree that Fiisbie knew any material fact which the defendant did not know, f d James J. Baldwin was unable to be north of the DECEMBER, 1858. 507 Baldwin v. New York Life Insurance and Trast Company. south bounds of Virginia by the 10th day of July, 1854 ; and that his not being north of the south bounds of Virginia by the 10th day of July, 1854, was caused solely by the facts aforesaid, and without default or neglect on the part of the said James ; that the time required to travel from Appalachicola, in the State of Florida, to the south bounds of Virginia by the ordinary route and mode of travel does not exceed the period of six days ; that due notice and proof of the death of the said James, and of his sickness aforesaid, were given and furnished to the defendants on or before the 12th day of October, 1855 ; that at the time of the commencement of this action the plaintiff was, and he still is, the lawful administrator of the estate of the said James J. Baldwin, deceased ; that the said plaintiff is entitled to recover of and from the defendants the amount agreed to be paid in and by said policy of insurance ; and that there is now actually due to the plaintiff from the defendants upon the said policy of insurance the sum of three thousand dollars with interest from the 12th day of December, 1855, making in all the sum of three thousand four hundred and eighty-six dollars and forty-one cents." William Betts, for appellants. 1. The facts, as proved by the plaintiff, do not sustain the alle- gation of the complaint in the finding in the special verdict. 2. The special verdict does not find that it was impossible for the assured to have complied with the condition ; but only, that on or about the 11th of June, 1854, he was seized with sickness, and thenceforward was unfit to travel and to start on his return to the north ; and that by such sickness alone he was prevented from coming north, without any default or neglect on his own part. Supposing this to be correct, the testimony of Dr. Spencer show^ the character of the prevention : that it was a mere moral coercion acting upon his mind from the fear of consequences. 3. Where a party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstand- ing any accident by inevitable necessity, because he might have provided against it by his contract. Therefore impossibility of performance on a special contract is not matter of defence to an action brought. Co. Litt. 206 b. Litt. ch. 5, § 334. Paradine v. Jane, Aleyn, 26, 27. Shuhrich V. SdlmoTid, 3 Burr. 1637. Liddard v. Lopes, 10 East, 526. Monh V. Cooper, 2 Strange, 763. Hallett v. Wylie, 3 Johns. 47. 508 SUPERIOR COURT OF NEW YORK. Baldwin v. New York Life Insurance and Trust Company. Hadley v. Olarhe, 8 T. R. 259. Barker v. Hodgson, 3 Maule & S. 269. Baylies v. Fettyplace, 7 Mass. 331. 2 Lord Raym. 1164. 1 Lev. 11. 6 T. R. 719. Beatson v. SchanJc, 3 East, 233. Locleyer v. Offley, 1 T. R. 260. Beebe v. Johnson, 19 Wend. 500. Warner v. ' SitcMns, 5 Barb. 666. Harmony v. Bingham, 1 Duer, 209 ; S. 0. 2 Kern. 99. Com. Dig. Asst. G. 36 Cond. D. 1. Piatt on Covenants, 8 Law Lib. 1st Ser. pp. 260, 582 ; part 6, ch. 2, § 1. Angell on Comm. Carr. § 294. W. W. Story on Contr. § 975. Chitty on Contr. Springfield ed. 1842, p. 734, ch. 5, § 5. 4. The plaintiff avers impossibility of performance of a condi- tion precedent in order to lay the foundation of an action. As this, forms no defence, still less can it be allowed to support an action. A condition precedent must be performed strictly ; nothing can excuse its performance. There is no case, dictum, or authority known to appellants which allows a plaintiff to set up impossibility in excuse for performance of a condition precedent. Where a right of action depends upon the performance of a con- dition precedent, performance cannot be excused unless it is dis- pensed with or prevented by the opposite party ; although it has become impossible without any default on the part of the plaintiff, or even by the act of God. Carpenter v. Stevens, 12 Wend. 589. Smith V. Briggs, 3 Denio, 73. Page v. Ott, 5 Idem, 406. Oakley V. Morton, 1 Kern. 25, 30. Com. Dig. ut supra. Burritt v. The Saratoga Mutual Insurance Co. 5 Hill, 188, 191, 193. Farmers' Insurance ^ loan Co. v. Snyder, 16 Wend. 488. 5. The plaintiff has no equity. The indorsements on the bond • show that on a prior occasion the assured had paid for an exten- sion of one month, namely, to the 10th August, 1850, the sura of $22/^%, or more than seven times as much as the risk at the north. He knew that he was incurring a risk after the 10th of July seven times as great as the usual risk ; and the indorsement on the policy shows that the company and himself had agreed on that valuation of risk, and he assumed it himself. 6. Judgment on the special verdict should be pronounced for appellants. Lucien Birdseye ^ J. B. Yates Sommers, for respondent. 1 . The policy was to become void if the insured should, without *he consent of the company previously obtained and indorsed upon DECEMBER, 1858. 509 Baldwin v. New York Life Insurance and Trust Company. the policy, visit those parts of the United States which lie south of the southern boundaries of the States of Kentucky and Virginia. The insured visited Florida pursuant to the following consent duly indorsed on the policy : " The party insured has permission to re- side and travel by land or hy any of the regular sea steamers in any part of the United States, to he north of the south hounds of Virginia hy the lOiA of July, 1854." It is claimed by the defend- ants that this consent was conditional, and that a failure to return at the time mentioned rendered the poHcy void. They seek to give it the same effect that it would have if the following words were added to it, namely : " And it is hereby declared to he the true intent and meaning of this consent, and the same is accepted hy the assured upon the express condition that if the said James J. Baldwin shall fail to return north of the south bounds of Vir- ginia hy the time aforesaid, this policy shall be void." We submit that the consent cannot thus be read, and that no such consequences could result from a failure to return for the fol- lowing reasons: (1.) The condition, if any is annexed to the consent, was made for the benefit of the insurers, and there is nothing upon the face of it to show th&t the insured assented to the condition. They, therefore, cannot claim any benefit from it except what is properly and fairly deducible from the language used. 1 Duer on Ins. § 6, p. 101. (2.) To create a condition it is usual to insert the word " con- dition," or " proviso." Such words must be used as clearly show that the grant or license is not absolute ; that something is ex- cepted from its general operation, or that its use is dependent upon something to be done by the other party to the contract. And the words used must not be repugnant or uncertain. Co. Lit. 203 a, 203 b, 204. Bac. Abridg. Title Condition, A. 3 Com. Digest, 83, Title Condition, A 2, A 6. (3.) The only words which can be relied upon as creating a condition in the consent are the words " to he north of the south hounds of Virginia hy the lOiA of July, 1854." This language is altogether too indefinite and uncertain to create such a condition as is contended for. For aught that appears upon the face of the consent, this language was used by the insurers merely as expres- sive of a determination that the insured should return at the time specified. They do not say that the policy should be void if he did 510 SUPERIOR COURT OF NEW YORK. Baldwin v. New York Life Insurance and Trust Company. not return. If they intended it to have that effect they should have so declared. The language is that of their own selection. It must be presumed that they said all they intended. The words are merely words of limitation. Bacon's Abr. Title Condition, Introduction. (4.) If it is claimed that the language of the consent is to be construed with reference to the policy ; we submit that it cannot be so construed for the purpose of creating a condition out of words which, standing alone, do not amount to one. To constitute a vahd condition there must be a distinct and independent sentence expressly specifying the limitation or proviso with reference to which the grant is made, and it must not depend upon another sentence or instrument for its effect. Bacon's Abridg. Title Condition, A. (5.) The construction contended for would make the consent, in its nature, a warranty. Now, it is well settled that a warranty cannot be created by construction. It must either appear in ex- press terms, affirmative or promissory, or must necessarily result from the nature of the contract. It must therefore appear on the face of the policy in order that there may be unequivocal evi- dence of a stipulation, the non-compliance with wiiich is to have the effect of avoiding the contract ; or, if on another part of the same sheet, or on a sheet physically attached, the- stipulations must of themselves show that they werfe intended to be incorporated in and form a part of the contract. If they appear in another paper they must not only be referred to in the policy itself, but must be referred to in such a manner as clearly to show that they were intended to be incorporated in the policy and form a part of its con- ditions. Jefferson Ins. Oo. v. Ootheal, 7 Wend. 80. Reynolds on Life Ins. 92. (6.) But a reference to the policy to ascertain what construction should be put upon the words in question, would not help the de- fendants. For the policy nowhere provides that it shall be void if the insured fails to return within the time specified in the consent. The consequences of a visit without consent are specified, but the policy is silent as to the consequences of a failure to return in case of a visit by permission. There is, therefore, nothing in the policy which will aid in creating the condition contended for. (7.) No penalty is fixed for a failure to perform this provision of the consent. The insurers have distinctly specified the cases in DECEMBEE, 1858. 511 Baldwin v. New York Life Insurance and Trust Company. which the policy should become void. A failure to comply with the requirement in question is not one of these cases. It is no part of the original contract that, if the insured goes beyond the speci- fied limits with consent, he shall return within a given time, or for- feit the policy. If the defendants have any right to repudiate their contract and declare the poUcy at an end because the insured did not return within the specified time, such right must be derived from the terms of the consent itself. No such right is conferred by the consent. (a.) The consent does not, in terms, attach any penalty to a non-compliance with its terms. It does not say that the policy shall be void if this provision is not fulfilled. For aught that ap- pears from the language used, some other penalty may have been intended than that of a forfeiture of the policy. (6.) If the condition did confer such a right, then a new and independent proviso would be created not within the terms of the policy. (c.) To create such new proviso would be a modification of the original contract. ( foreman], shot him, during which his companions were robbing the others. The fact of their robbing a " citizen," is no proof to the contrary ; as it does not appear whether such citizen was loyal or disloyal to the United States. If loyal, and such is the presumption, that fact furnishes ample reason for their conduct toward him, and tends to prove their belligerent character. 6. By the permit of September 17, 1864, the defendant only waived the clause in the policy prohibiting the insured from pass- ing below the thirty-sixth degree of north latitude, and the only additional risk they assumed and the extra premium covered, was the effect of the climate upon the health of the insured below that degree of latitude ; in other words, the permit covered only a " climate risk," and none other. E. Darwin Smith, J. The circuit judge having taken the case from the jury and directed a verdict for the plaintiif, the only ques- tion arising upon the exception to such order and decision is, whether there was any evidence in the case sufficient to have war- ranted a verdict for the defendant. Upon the facts of the case there is very little room for dispute. The plaintiff 's husband was killed in the State of Tennessee, and south of the line of the thirty-sixth degree of north latitude, by a roving band of banditti, thieves, and robbers, such as infested all the border states during the war. The death, occurring at such place and under such circumstances, clearly avoids the policy, un- less it is covered and saved by the permit or consent indorsed upon the policy, of the date of September 17, 1864. By this permit Welts was permitted to pass, by the usual route and means of public travel, to any part of the United States south of the thirty-sixth degree of north latitude, and reside there, or return, during the term of one year from the date of such permit, SEPTEMBER, 1866. 587 Welts *. Connecticat Mutual Life Insurance Company. ■without prejudice to said policy ; provided, and the said permit was issued with the understanding and agreement of the parties in in- terest, " that the said Welts was npt insured by said policy against death from any of the casualties or consequences of the war or re- bellion, or from belligerent forces, in any place whei'e he may be." If tliis permit had not been given when all that part of the United States south of the thirty-sixth degree of north latitude was in a state of insurrection and war, and covered more or less with hos- tile armies, I should have considered that Welts came to his death from the causes covered by the proviso, and excepted from the pohcy. But he was permitted to go into any or all the insurrec- tionary states south of the line of the thirty-sixth degree of north latitude ; the insurers well knowing, as well as the assured, of the existence of the war of the rebellion in all of these states. The assured paid an extra premium for such permit. He was killed where, under the permit, he had a right to be. He was not killed by rebels in any encounter of arms. He was engaged in no bat- tle, or near any. He was twenty miles or more in the rear of the United States forces at Nashville, and it does not appear that there was any rebel force at the time north of the Cumberland. He was not exposed to any war peril, except such as existed through all the peaceful parts of Kentucky and Tennessee. Having the riglit to be in the place in which he was killed, the risk Welts then run was one covered by the permit. He was engaged in no warlike enter- prise. He was simply rebuilding railroad bridges far in the rear of, and away from any hostile forces. The band by which he was killed were, it seems, mere roving robbers, robbing union men and rebels alike. They did not interfere with the work in which Welts was engaged. They did not destroy railroads or bridges, or make prisoners of any persons in Welts' company, or others. They merely robbed the members of the company of their money, mak- ing no demonstrations indicating that they were confederate sol- diers, or acting in the interest of the rebel government. It is true that Welts ran the peril of encountering such robbers by going into Tennessee, but this, I think, was part of the risk contemplated by the permit. The same peril would have been encountered if he had been travelling quietly in that section of country, simply passing from one place to another in any part of the United States south of the line of thirty-six degrees of north latitude. This permit is to be construed with reference to the known con- 588 SUPREME COURT OF NEW YORK. Fried V. Boyal Insurance Company of LiverpooL dition of the country at the time it was given, and the parties must both be deemed to have known what the ordinary perils were in the country where the insured proposed to go, and their contract must be interpreted in the Ught of this assumption. I think, therefore, that the proper disposition was made of the case at the circuit, and that a new trial should be denied, and judg- ment ordered upon the verdict.' Judgment for the plaintiff. The cases on licenses are Hathaway v. Trenton Mut. Life Ins. Co., ante, 172, and authorities there cited. Caroline Fried vs. The Royal Insurance Company of Liverpool. (47 Barb. 127. Supreme Court, November, 1866.) Consummation of contract. Delivery. — A paid a certain amount as premium on a proposal of life insurance, to the agent of a foreign company, which was to be sent to L., the com- pany's head office. If the proposal should be accepted a policy was to be issued; if de- clined, the sum paid as premium was to be returned. If the insured should die before the decision of the head office the sum insured was to be paid. The agreement to this effect signed by the agent was sent to the company, the proposal accepted, and a policy sent back to the agent. This was never in fact delivered to the plaintiff, and the agent, upon request, refused to give it to the plaintiff. Before the end of the year, plaintiff tendered the premium for another year, which was refu'sed. The insured died before the end of that year. Held, that the contract was fully consummated, and that the facts stated constituted all the legal delivery required. Beld, also, that the tender of the sec- ond premium was equivalent to payment. Demurrer to complaint. The case is fully stated in the opinion of the court. F. Kauffman, for the plaintiff. J. Laroeque, for the defendants. Potter, J. The complaint alleges, in substance, that the de- fendants are a foreign corporation, duly chartered and entitled by the laws of New York to make contracts for life insurance ; and that one A. B. McDonald, of the city of New York, is their duly authorized agent to make the contract in question, which was as follows : " Received from Mrs. Caroline Fried, the sum of $80.26 pre- mium on a proposal of assurance for $5,000, on the life of her hus- band, Heinrich Fried, which is to be forwarded immediately to the head office at Liverpool, England, for acceptance. If it be acceptptj> a policy will be issued in accordance therewith ; if declined, the above mentioned premium will be returned. But in case the said NOVEMBER, 1866. 589 Fried V. Eoyal Insurance Company of Liverpool. Heinrich Fried die before the decision of the head office shall have been received, the sum insured will be paid in accordance with my instructions. f80.25." Signed by the said McDonald, dated 19th January, 1864. This agreement was forwarded by McDonald to the head office at Liverpool, was accepted by such head office, a policy of insurance in their usual form made out, duly authenticated by the head office, made in conformity to the terms of the proposi- tion, and sent to said McDonald, in New York. The defendants never delivered the policy in fact to the plaintiff, and refuse to do so, although requested. Before the end of the year, the plaintiff tendered the premium for another year, $80.25, to McDonald, at the office in the city of New York, which he refused to receive. Before the end of that year Heinrich Fried died. The plaintiff alleges that she had an insurable interest in the life of her husband ; that her tender of the second year's premium kept the policy alive ; that she furnished the due proof of her husband's death, and ful- filled all the conditions on her part, and claims the sum of $5,000. The demurrer of course admits the facts alleged. The defend- ants insist that the plaintiff' cannot recover, on the ground that the policy was never issued ; that the complaint alleges that the policy was never delivered ; that delivery is the consummation of the con- tract ; that issuing and delivery are equivalent terms in law, and that there could be no issuing without 9. delivery. This argument is not sound ; it is not consistent with the plain letter, sense, and spirit of the contract. I do not think it possesses even the merit of plausibility. By the demurrer the defendants admit the receipt of the premium for the first year ; they admit the power of McDonald, their agent, to make the contract in question, which was an absolute contract of insurance until the proposition should be received at the head office, and which was to be con- tinued upon their acceptance of the plaintiff's proposition ; and they admit the acceptance of the proposition, and the issuing a policy in accordance therewith. It was no part of the contract that its bind- ing effect or validity should depend upon any subsequent act of themselves or of their agent, in the actual delivery of the policy so issued to the plaintiff. The acceptance of the proposition and the premium, the making out and authenticating a policy and the trans- mission of it to their agent, was all the legal delivery required. These acts amounted to the consummation of the contract ; the minds of the parties had met, and action had been taken upon it by 590 COURT OF APPEALS OF NEW YORK. Gibson v. American Mutual Life Insurance Company. the defendants ; their retaining the premium estops them from de- nying that the contract was perfect. There was nothing in the accepted proposition that made its effect, or vahdity as a contract, to depend upon the actual possession of the poUcy by the plaintiff. It is rare indeed that a party comes into court and sets up his own breach of duty, or of good faith which he owes to his adversary, as a defence to an action. The defendants were under the implied obligation of duty, by virtue of the agreement with the plaintiff, to deUver the policy to her. The transmission of it to their agent in New York, is, in contemplation of the terms of the contract and of law, under the circumstances, a delivery to her. The law has hitherto been guilty of no such reproach as that of allowing one party to a contract, and especially a contract for life assurance, to withhold the evidence of its ratification, to enable them to play the game of fast and loose, to have it binding or not binding as the cir- cumstances of probable health or sickness, of life or death, may dic- tate pecuniary loss or gain to the party so wrongfully withholding. The refusal to deliver the evidence of the contract, and the refusal to receive the second year's premium, cannot make void a consum- mated agreement. The tender of the second premium is equiva- lent to its payment. The death of the person whose life was in- sured, entitles the plaintiff to recover. The defendants seem to suppose that the consummation of a contract, and the evidence of its ratification, are identical. This is error ; a contract may be good, while the evidence of its ratification is wrongfully withheld. There must be judgment absolute for the plaintiff. See Sheldon v. Connecticut Mut. Life Ins. Co., ante, 27, and cases cited. Cathamne S. Gibson, respondent, vs. The American Mutual Life Insurance Company. (31 N. T. (10 Tiff.) 580. Court of Appeals, January, 1868.) Attending physician. — A physician who had not been in practice for several years, hut who, in the case in question, attended the wounded man (the insured) as a ftiend, and admin- istered remedies, without compensation, is not necessarily an attending physician. Suicide. Atheism. Presumption from. — In determining the question whether the death of the assured was accidental or a case of intentional self-destruction, the fact Uiat he was an atheist or an infidel affords no presumption that he committed saicide. This was an action on a policy of insurance on the life of Mar- JANUARY, 1868. 691 Gibson v. American Mutual Life Insurance Company. cus W. Gibson, issued March 8, 1858, for seven years, payable to Catharine S. Gibson, his wife. The defences set up in the answer and insisted upon on the trial, were : 1. That the proof furnished " omitted to state truly the cause of the death of said Marcus," and 2. That " the said Marcus W. Gibson committed suicide by designedly shooting and wounding himself, with the design and for the purpose of producing death, of which shooting and wounding said Marcus died." The proofs furnished, and which were 'produced by the defend- ant on the trial, and offered in evidence, were the certificate of the officiating clergyman at the funeral of Gibson, the statement of John G. Meachem, the attending physician of Gibson during his last sickness, made in answer to printed interrogations furnished by the defendant, and the affidavit of the plaintiff. The conditions required, among other things, that the proofs should contain " the name of the physician or physicians, and other persons in attendance, and the place and date of burial, .... the affidavit of the medical attendants," &c. Gibson died on the 24th day of March, 1860. The defendant proved by Gibson's declarations, that " he was crossing on a log with his gun in his hand ; that his foot slipped and he fell off, and the gun went off and shot him through the bowels." After receiving the wound which caused his death, Gibson was brought to his own house, and lived about twenty-four hours. The defendant put the following question to one of the wit- nesses : " Have you an opportunity of knowing his religious sen- timents ? " and proposed to show that Gibson was an infidel. This evidence was excluded by the judge, and the defendant excepted to his decision. To another witness the defendant put the ques- tion : " Did you know his religious sentiments ? " and offered to show that Gibson was an atheist. This evidence was excluded, and the defendant excepted to the decision. The jury rendered a verdict for the plaintiff, and upon an appeal to the general term, the judgment was affirmed. The defendant now appeals to this court. G: Q-. Munger, for the appellant. L. W. Thayer, for the respondent. Hunt, Ch. J. In his elaborate argument, the defendant's coun- 592 COURT OF APPEALS OF NEW YORK Gibson v. American Mutual Life Insurance Company. sel insists, as his first ground of appeal, that the prehminary proofs were deficient, in that they did not contain the affidavit or certif- icate of Doctor Bartlett as one of the attending physicians. Al- though he had been a practising physician, Doctor Bartlett was not such at the time of the death of Gibson, and had not been for some years previously. He was one of the sympathizing friends, who, on occasions of accident or death, are present to give aid and comfort. Mrs. Gibson immediStely, on the arrival of her husband, dispatched a messenger for Doctor Meachem, the family physician. In the mean time the wcfunded man being in great pain, some per- son suggested that Doctor Bartlett had better make an examination of his wounds. Mrs, Gibson assenting, he did so, and he also gave him morphine to relieve his pain. Upon the arrival of Doctor Meachem, he took charge of the case. It does not appear that Doctor Bartlett acted in any other than a friendly capacity, or that he has at any time desired or expected compensation for his ser- vices. I do not know that he could claim compensation in money for his kind offices, any more than could the other neighbors pres- ent and assisting. The service was charitable and voluntary. The defendant did not make any request that this question should be submitted to the jury, but claimed, as a matter of law, that Doc- tor Bartlett was an attending physician. This claim cannot be sustained. The question in contention at the circuit was, whether the death of the deceased was accidental, or whether it was a case of inten- tional self-destruction. To aid in elucidating this inquiry, the de- fendant insisted that he had the right to show that the deceased was an infidel, and an atheist, and thence to draw an argument in support of the theory of intentional suicide. The defendant insists, upon the competency of this evidence upon the further ground, that every man is presumed to be a Christian ; that the Christian religion prohibits self-slaughter ; that this presumption of Christian- ity and its influence might operate upon the minds of the jiu^y, and should be allowed to be overthrown by the testimony offered. It is not necessary to say how far, or how precisely, the pre- sumption of personal Christianity exists. That we live in a Chris- tian country is certainly true. It is acknowledged by the laws of the land, which prohibit blasphemy and profanity, and enjoin the observance of Sunday. That we believe in a governing Provi- dence, by whom crime will be punished and virtue rewarded, is JANUARY, 1868. 593 Gibson v. American Mutual Life Insurance Company. assumed in every oath that is administered. To say, however, that every man is presumed to be a personal Christian, upon whose mind and upon whose actions the precepts of the Gospel exercise an influence, is so much against our common experience, that it cannot be assumed as a legal principle. It may be argued, how- ever, that a man may hold this belief, although his actions be not at all times influenced by it. This is probably true, and here arises the difiiculty in the admission of the evidence offered. Consider the great variety of creeds held by those calling them- selves Christians. We find not only the Roman Catholic, the Episcopalian, the Presbyterian, the Methodist, and Baptist, but a large class who believe in the punishment of sin in this world only, and the ultimate salvation of the whole human race. These are all Christians. They all acknowledge the inspiration of the Holy Scriptures, and the obligation of its commands. In what way, and how far do these systems of belief operate upon the conduct of man ? Is it certain that he who believes in the eternal punishment of the impenitent, in a future world, is a better observer of the laws of his country, and more free from actual crime, than he who denies that doctrine ? Or is it certain that he who believes in the final salvation of all men, would refrain from an offence which he would have committed, had he believed that there was no future state ? No man can answer with certainty. Does the fact that a man believes in the Christian religion, furnish legal evidence that in a particular case he has not violated the laws of God or of his country ? Experience teaches us that not only believers in the Christian religion, but those who for years have given the highest evidence that they would receive the ultimate reward of the true Christian, are guilty of grave offences, moral and legal. The law takes man as he is, with his passions, his appetites, his infirmities, and with his education, his moral training, and his religion. With all these elements, his life is a struggle, and a contradiction. What his actions will be, can be determined by no form of belief, and by no fixed principle of law. Each man's case will be different from that of his neighbor, and from day to day will be different from his own. The " infidel " is one who does not recognize the inspiration or obligation of the Holy Scriptures, or the generally recognized fea- tures of the Christian religion. The " atheist" is one who does not believe in the existence of a God. The result of this absence 38 594 COURT OF APPEALS OF NEW YORK. Gibson v. American Mutual Life Inenranoe Company. of belief upon his axjtions is speculative entirely. Does his soul shrink back at the idea of annihilation ? We know not. He may not admit the existence of a soul ; and the eternal rest of the grave may form his idea of paradise. On the one side would stand the idea of annihilation, and on the other that of an offended God. Who can say, as matter of fact, which would produce the strongest effect on the human mind? Is there any feeling or principle stronger than that instinctive dread of death which all men feel, and which neither the faith of the Christian nor the reasoning of the atheist can overcome ? It does not depend upon life or faith. It is instinctive, and common to all men. It would, in my judgment, be incompetent to impeach one's con- duct, and to adjudge new motives and principles upon the proposed idea. To adjudge that a man's belief in Christianity will prevent, or tend to prevent the commission of suicide, or that atheism will produce, or tend to produce a contrary effect, is to adopt a princi- ple more subtle and speculative, more uncertain and more remote than the law can recognize. If a sound argument, it would be apphcable to some extent in every case where character was in- volved. Would it be a just ground of impeachment of the good character of a party to an action, that he is an infidel or an athe- ist ? If Gibson had been the plaintiff in an action of slander, could his opponent have reduced his damages by showing his belief in these respects ? If he had been indicted for murder, and the ques- tion of character had been introduced into the issue, could the prosecution have attacked him by showing his skepticism? Or could he have sustained his character by proof that he held a re- ligious belief? Such a suggestion finds no countenance in the authorities. Conduct and life, as distinguished from belief, give the standard of character. In law, it would be a totally immaterial circumstance. It affords no certain or practical test of conduct. The offer in the present case is based upon the same idea, and the argument in its defence, although plausible and attractive, cannot be sustained. Judgment should be affirmed, with costs. All the judges concurring, Judgment canned. MARCH, 1868. 596 Baker v. Union Lif^ Insurance Company. Baker vs. The Union Life Insurance Company. (6 Abb. Pr. (N. S.) 144. Superior Court of l^ew York, March, 1868.) Payment of premium. Waiver. — Knowledge on the part of the company of the non-pay- ment of a premium note when due is a notice of the breach of the contract of insurance ; and any extension of the time thereafter is a waiver of the forfeiture. Estoppel. — Where an insurance company take a note for the premium and receipt the same as cash, and the insured has died after the maturity of the note, without having paid the same, the company are estopped from setting up a forfeiture of the policy against the party for whose benefit the same was underwritten, and who had no knowledge that the note had been taken and had not been paid. The case is stated in the opinion. Moore, for the plaintiff. Jernegan, for the defendants. MoCuNN, J. This is an action' to recover the sum of $10,000, being the amount of a policy on the life of the husband of the plaintiff. The facts are as follows : In December, 1864, Mr. Baker, the husband of plaintiff, insured his life for and on account of his wife in the company of the de- fendants for $10,000, and gave his notes for the premium, which notes were accepted and received by the company, and were re- ceipted on the policy as so much cash. The policy was then taken by Baker and given to his wife, there being no evidence before the court that she had any knowledge that her husband had given his notes for the premium on the policy, instead of cash. One of the notes became due and was not paid at maturity, and Baker prom- ised repeatedly to take the same up, the company indulging him as to time. Baker finally died before the note was paid, and the plaintiff, his wife, brings suit on the policy. The defendants answer and say, that by reason of a certain printed memorandum, (they call it an agreement,} placed on the margin of the policy, wherein it is said that if any promissory notes given under said policy are not paid at maturity, the policy shall become void ; they are not bound in law to pay, but on the con- trary are released from all their obligations in that respect. After a careful view of the law, looking at all the facts as they stand in the case, we are clearly of opinion that the plaintiff is entitled to recover. We hold that where the wife's interest in her husband's life is insured, and the husband's notes are received and receipted as cash to the wife or the person to be benefited bj the policy, it is a receipt in payment as cash, and the receipt is a part 696 SUPERIOR COURT OF NEW YORK. Baker v. Union Life Insurance Company. of the agreement. This is the rule laid down in the case of Gioit V. National Protection Ins. Co. 25 Barb. 190, and in that case the facts are not near so clear and strong in favor of the plaintiffs as they are in the case under consideration. In this case the wife, for whom the policy was effected, did not know but that her hus- band had paid the cash for her premiums ; they were receipted as cash on her policy by the company ; and for aught we can tell, if she had known the money had not been paid she might have ad- vanced the premium herself. But even if the plaintiff had given the notes herself, or was cognizant of the fact that they were given instead of money for the premium, the policy under such a clause is not void because of the non-payment of the note, but voidable only at the election of the company. Instead, however, of elect- ing to avoid the policy, the conipany assented to the delay in pay- ment, and were' expecting from day to day the proceeds of the notes from Baker, the husband, and they held the other notes not yet due or earned, and up to his death had taken no step indicating an intent to forfeit the policy ; and as there is no dispute that pay- ment of the notes at jnaturity was waived, and as no agreement was thereafter made with plaintiff to change her rights, the com- pany was and is liable to her, and can only look to the collection of Baker's notes. Nay, more, I shall hold that a knowledge on the part of the company of the non-payment of the note is a notice of the breach, and any extension of the time thereunder vras a full waiver of the forfeiture. There is another view of the case which must, to my mind, con- clude the defendants. I mean the view that they are estopped from denying the payment of the premium in cash by their own acts in giving the receipt for cash. The rule of law is clear that where one, by his own words or conduct, causes another to believe the existence of a certain state of things, and induces him or her to act on that belief, the party so doing is concluded from averring or proving a different state of things as existing at the time he made such representations. In legal parlance, this is termed estoppel. This was the rule held in the queen's bench in the case of Pickard V. Sears, 6 Adol. & El. 469 ; so also in the case of Freeman v. Cooke, 2 Exch. 654, Baron Parke holds, " That where a party gives a receipt or writing, and knows at the time he is giving it that the same is untrue, (as in this case,) he gives it with the understand- ing that it will be acted upon and used against him as if it were MAY, 1868.. 597 Hogle V. Guardian Life Insurance Company. true." If in this case the company did not intend that these notes should be received as cash on account of the premiums of this ^woman's policy, why did they not say so in their receipt? It would certainly have been as easy for them to say " notes " as to say " cash." But they intended the notes to be received as cash ; they were received as cash ; and they must be strictly held to that construction. Indeed, there never was a case wherein the doctrine of estoppel can so completely apply as in this case. Estoppel, as applied in such a case as this, is not made applicable upon the ground of wilful misrepresentation or fraud in making the admission or declaration, but upon the ground that it will be a fraud to show that it is untrue, to the prejudice of a third party, and of one who has acted upon the faith of the statement. In this case the plaintiff saw the receipt upon her policy, and saw that the language of that receipt said the premium was received in cash, and she acted upon that statement, and we cannot allow this com- pany, after the death of her husband, to take advantage of their own misstatements in that receipt. For all we know, as I have said before, this very receipt may have prevented her from paying the notes, and it would operate as a fraud to permit its denial ; and this is the very essence of estoppel.-' The rule would be the same if a creditor, interested in the life of a debtor, was insured, and the insurance perfected by the debtor, and the premium received by the company was in the notes of the debtor ; but thus receipted in cash, could the company dis- pute it ? By no means. Then the rule should be just as strictly applied in this case. Judgment affirmed with costs. See Bouton v. American Mut. Life Ins. Co., ante, 51, and cases cited. HoGLE VS. The Guardian Life Insurance Company. (4 Abb. Pr. (N. S.) 346. Superior Court of New York, May, 1868.) Who may me. — The heir-at-law of one who has insured his life in his own name for her benefit, may bring an action for the insurance money in her own name as the real party in interest, under the Code, § 111. Fake representations. — If an insurance company rely upon the report of the examining physician, and not upon the statements of the insured, erroneous statements by the latter to the physician, which amount only to opinions, will not avoid the policy. The case is stated in the opinion. L. K. Miller ^ W. E. Feckham, for the appellants. 1 See Provident Ins. Co. v. Fennell, 99. But see Pitt v. Berkshire Ins. Co. 284, 288. 598 SUPERIOR COURT OF NEW YORK. HtogU V. Guardian Life Insurance CoinpallJ-. Walden, for the respondents. GaeviNj J. This action is brought by the daughter of E. H Warner, who himself procured his life to be insured for $10,000. The defendants insist that inasmuch as the loss is payable to the assured, his executors, administrators, and assigns, the plaintiff can- not maintain this action. The parties are bound by the contract found in the policy. The defendants agree, in consideration of the premium paid and to be paid, to insure him in the sum of $10,000 for the period of his natural life ; and the defendants agree, sixty days after notice and proof of his death, to pay the assured, his executors, &c., the sum assured. This is expressed on the face of the policy to be for plaintiff's benefit. If "assured" means the plaintiff, she can maintain this action. The objection is put upon the language of the policy and its legal iihport. Let us see. It is for her benefit. No one can recover the sum assured until after his death. Subsequent to that event he cannot sue. The fruits of the contract are solely hers. Upon these facts she certainly can maintain the action, unless there is some legal rule vfliich prevents it. She is the party in interest. The meaning of the term " as- sured " is to be derived from the connection. In reinsurance it is applied to the party that has already taken a risk as insurer; not to the assured in the original policy. Carrington v. Commercial Ins. Qo. 1 Bosw. 152. In this case, not to the person whose life is insured, but to the plaintiff, for whose benefit it was made. The father made the contract. The daughter was to have the finiits. Thus, in terms it must refer to the plaintiff, and cannot be applied to the deceased. But it is said " his," immediately following " as- sured," qualifies and controls the meaning. This is plausible and ingenious, and upon the argument made some impression upon my mind. But I think it is overturned both by reason and authority. In Ghwrch v. B/uhhart, 2 Cranch, 187, the objection was taken that the action was brought in the name of John B. Church, Jr., when the contract was made with John B. Church. Justice Gush- ing, who tried the case at circuit, says : " From the evidence it is plain' the policy was for the son ; the property of ship and cargo is proved to be in the plaintiff;" thus establishing the principle that where there are divers persons answering to the description of the assured, "the policy is applied to the interest of the party f6r whom it was intended. I Phil, on Ins. § 411. It is also liaid down in Reynolds on Life Assurance, § 22, that the " assured " MAY, 1868. 599 Hogle V. Guardian Life Insurance Company. is the person who is to receive the benefit of the insurance. We must therefore assume the promise was to pay the plaintiff, which brings the case within ail the authorities. The contract was with Warner, whose life was insured for her benefit, and the promise is to pay her. The action is properly brought in her name,, (^Lawrence V. Fox, 20 N. Y. 268,) but whether this is so or not, the plaintiff is the real party in interest, and can maintain the action. Code, § 111. The insurance was effected by Warner. He applied for it, paid the premium, took all the initiatory steps for proving it. It was delivered to Warner, and nothing is clearer than that Warner could make the loss payable to whom he pleased. He did so, mak- ing it payable to her. Therefore, the question of whether she had an insurable interest in the life of her father, does not and cannot arise. Any person has the right to insure his own life, though he does it for the benefit of another. JRawls v. American Life Ins. Co. 27 N. Y. 282.1 jjg jj,ay have the loss payable to the assured, or to his own assignee or appointee ; and whichever be the form, his interest in his own life is the same. There is, therefore, no question as to her interest in his life. That question does not arise. 13 N. Y. (3 Kern.) 31. 23 N. Y. 516. A policy of insurance effected upon one's own life may be disposed of as the insured sees fit. It is not material that the beneficiary, appointee, or assignee have an interest in the life of the insured at the inception of the policy. A valid policy once made, it so remains if the conditions are complied with. 20 N. Y. 32. On the termination of the life, the sum assured is payable. 27 N. Y. 290.^ This brings us to the main question in the case, and the one which the defendants urged upon the argument with great firmness and resolution. It is claimed by the defendants that Warner mis- represented the facts as to his August sickness, and untruly repre- sented that certain of his organs properly performed their functions. These misrepresentations are based upon a statement made by Warner to the company in his application, that he had never had any serious illness, except fever seven years before, and that the functions of the abdominal and urinary organs were properly per- formed. The last statement was made in answer to a question put by the examining physician. It can hardly be said, in regard to the last statement, that it was a misrepresentation, taking into account all the evidence in the case. 1 Ante, 558. 2 gee note to Lord v Dall, ante, 168. 600 SUPERIOR COURT OF NEW YORK. Eogle V. Guardian Life Insurance Company. The company did not rely upon what Warner told the doctor, hut on the doctor's report, which is supposed to embody his opinion, not the patient's statements. The defendants could have put the questions and taken Warner's answers, but their object and design was to obtain a professional opinion. As such, his answers must be taken and regarded by us. It was the doctor's duty to make such personal examination of^ Warner as to satisfy himself, as he was answering to the defendants. This we must presume he did. He was in the defendants' employ, and was bound conscientiously — as he doubtless did — to discharge his trust. The doctor says, (after describing his height and complexion,) " he had a healthy appearance, and was a well-preserved man of his age. If he had been feeble I should have remarked it, and should have examined as to its cause ; " thus showing that the doctor did more than take his mere answers, and was satisfied to answer as he did. This statement must be referred to the general condition of the specified organs, not to occasional and temporary derangements of the sys- tem, which are common to all. The very next question is in a form which, if addressed by the doctor to Warner in regard to the point under consideration, would have elicited a history of any and all difficulties of the organs in question, showing that question 10 was only intended to call for general information from the doctor by the company, and not the past and present history of the func- tions referred to. But it appears, as a matter of fact, that the doc- tor was told Warner had had colic, at this interview. It is difficult to see how the physician could have been misled in his opinion by the answers made to him by Warner, or the com- pany in any way deceived. Again : was the August illness seri- ous ? Certain facts are not disputed. The statement was made by Warner that he never had any " serious illness " (except that of a fever, seven years before) ; that he was ill in August, 1866 ; made the statement in September following, and died February 16, 1867. But where there is such abundant medical testimony to sustain the interpretation given by the' referee to the character of the August sickness, taken in connection with the reasoning which must occur to the common mind for not regarding such an illness serious, we should be hardly justified in disturbing the judgment, upon the ground that it was misrepresented. As a question of fact, the finding of the referee must be regarded as conclusive. It is true there is evidence on the part of the defendants of a charac- NOVEMBER, 1868. . 601 Robinson v. International Life Assurance Society of London. ter which, taken alone and unanswered, would be entirely con- trolling against this view of the case ; but the decision of the ref- eree, like the verdict of a jury, should not be disturbed when founded upon conflicting evidence. There must be an end of liti- gation, and questions of fact can only be settled by adhering to this rule. As to his answer in regard to the character of the August ill- ness, it was the mere expression of an opinion, and was neither a warranty nor a inisrepresentation. The sickness was recent, and therefore remembered, but if he did not consider it serious, it in his opinion did not call for an affirmative answer. Many persons do not call an illness serious which does not utterly prostrate them for the time being ; if they are able to be about their house, are up from their bed every day and dressed : more especially is it so with those whose business is in-doors. This may have been, and doubtless was the opinion of Warner. In this opinion he is confirmed by his family physician, and several physicians who have testified upon the trial. We must therefore hold that Warner fully answered all the questions put to him, and having done so, he was not bound to go any further. 27 N. Y. 295. We think the cause has been well tried, and the j;idgment should be affirmed, with costs. Judgment affirmed. Robinson vs. The International Life Assurance Society OF London. (52 Barb. 450. Supreme Cowrt, November, 1868.) Confederate money, — C. was the special agent for the defendant company, a foreign cor- poration, from the spring of 1868. Renewal receipts for the premium were issued to him by the company's general agents at New Yorlt, and constituted his authority to re- ceive the premiums. After June, 1861, owing to the rebellion, none of these receipts were issued to C. ; but from that fime it was claimed by the plaintiff that the premiums were received by the local agent under a verbal authority by which renewal receipts were from that time dispensed with. The only currency in circulation in Richmond at this time was confederate money, and with this the insured paid his premiums regularly to the time of his death. The jury having found that C. was authorized to act without the renewal receipts, it was held, that the agent was authorized to receive confederate notes, under the circumstances, and that the company were liable. Mullin, J., dissented. This action was brought upon a policy of life insurance issued by the defendant by its local board of directors in the city of New York to Cunningham P. Macmurdo on the 8th day of December, 1845. The policy is substantially in the usual form of such instru- 602 SUPREME COURT OF NEW YORK. Bobinson v. International Life Assurance Society of London. ments, and by it, in consideration of the payment of the premium agreed upon, the defendant agreed and undertook to insure Mac- murdo's life in the sum of ten thousand dollars. The premium upon the insurance was regularly paid by the assured, who was a resident of Richmond in the State of Virginia, to and including the month of June, 1861. After that, and down to the time of the decease of the insured, which happened in Optober, 1862, the amounts becoming due for premiums under the policy were paid by the assured, but such payments were made in what is known as confederate cur- rency. All these payments were made after the spring of 1858 to W. S. Cowardin, who was the defendant's agent at Richmond, He was appointed as such agent by the defendant's general agents at the city of New York. And he received what were called re- newal receipts, which were delivered to the insured from time to time for the premiums paid upon his policy down to about the month of June, 1861. These renewal receipts were issued to the local agent by the general agents at the city of New York, and constituted his authority to receive the premiums. After June, 1861, none of these receipts were issued to the local agent. But from that time it was claimed by the plaintiflF that the premiums were received by the local agent under a special authority verbally conferred, by which renewal receipts were from that time dispensed with. After the decease of the insured the proofs required by the pol- icy were furnished to the defendant, and the claim for payment was assigned to the plaintiff. Upon the trial a verdict was recovered by the plaintiflF, and from the judgment entered upon it the defendant appealed. Jag. W. Gerard, Jr., for the appellant. 1. The sub-agency at Richmond was created by the New York board, and the London corporation knew nothing of it, and had no j)rivity with the agent. 2. The company had a double gitui, in London and in New York, and the American branch was a separate and independent corporation as to business in the United States. The Jonge Klas- sina, 5 C. Rob. 302. The Ann Smith, 1 Dodson, 221. The Anto- nia Johanna, 1 Wheat. 159. Mbers v. United Ins. Co. 16 Johns. 128. Phil, on Ins. 112, § 164. Society v. Wheeler, 2 Gall, 105, 131, People V. Central R. Co. 33 How. Pr. 407. 1 Duer on Ins. 525. The domicile of a party is the test of his national character. 5 Lawrence's Wheat. 559-569. MeConneli v. Hector, NOVEMBER, 1868. 603 Bobinson v. Intetuatioilal Life Assurance Society of London. 2 Bos. & Pul. 549. 1 Duer on Ins. 495. 1 Kent, 85-88, 10th ed. The Indian Chief, 3 C. Rob. 12. The Venus, 8 Cranch, 253. Beehe v. Johnson, 19 Wend. 500. The Venice, 2 Wal 279, The Frances, 8 Cranch, 363. The Freundschaft, 4 Wheat. 105. This doctrine prevails in the case of agency. The Anna Catha- rina, 4 0. Rob. lOiT. 1 Kent, 87. The San Jose, 2 Gal. 268. 3. The state of war which existed made all parties resident in the two sections enemies in contemplation of law. Mrs. Alexan' der's Cotton, 2 Wal. 404. The Hiawatha cases, 2 Black, 638. Q-riswold v. Waddington, 16 Johns. 438. Blatch. Prize Cases, 556. Act of July 13, 1861. 12 U. S. Stat. 257. Proclamation, Aug. 16, 1861. The domicile of the defendant being in New York, its national character for the time was that of an American com- pany ; and all intercourse and business transactions between it and the plaintiff, or the sub-agent at Richmond, were illegal and void. 4. The state of war revoked the agency. Carver v. Lane, 4 E. D. Smith, 168. Lawrence's Wheat. 557. The Julia, 8 Cranch, 181. The Rapid, Idem, 155. Q-riswold v. Waddington, 15 Johns. 57. 16 Idem, 438 1 Kent, 10th ed. 77. The William Bagalay, 5 Wal. 307. Monger v. Abbott, 6 Idem, 534. Jecker V. Montgomery, 18 How. 110. Fsposito v. Bowden, 7 E. & B. 788. A fortiori is the insurance of an enemy's goods, and par- ticularly of his life, against public policy, and suspended during the war, if not avoided by the war. 1 Duer on Ins. 417. 3 Kent, 255. 1 Phil, on Ins. 3d ed. p. 104, § 149. Furtado v. Rodgers, 3 Bos. & P. 191. Kellner v. Le Mesurier, 4 East, 396. G-amba v. Le Mesurier, Idem, 407. Brandon v. Curling, Idem, 410. 5. Even if the defendant be regarded as a neutral sojourning here, it is against public policy to uphold this contract. 1 Duer on Ins. 623. People v. Central B. 33 How. Pr. 407. Eennett v. Chambers, 14 How. 39. 6. There was no evidence of express authority to take confed- erate notes, and such authority cannot be implied. They were not money, and an agent's authority to receive payment means in money strictly. Mathews v. Hamilton, 23 111. 470. Todd v. Reid, 4 B. & Aid. 210. Russell v. Bamgley, Idem, 395. Dun- lap's Paley on Agency, 280, 281. Partri^e v. Bank, 58 Eng. Com. Law, 396. 0-rant v. Norway, 73 Idem, 457. 11 C. B. 457. Ontario Bank v. lAghibody, 13 Wend. 101. Taylor v. Robinson, 14 Cal. 396. Story on Agency, § 98. 10 Barn. & Cress. 760. 604 SUPREME COURT OF NEW YORK. Sobinson v. International Life Assurance Society of London. Barker v. Q-reenwood, 2 Y. & Col. 414. 5 Mees. & Wels. 645. Soward v. Chapman, 4 Car. & P. 508. 1 Starkie, 233. Cw- derwood v. Mehols, 17 C. B, 239. Stewart v. Aberdein, 4 Mees. & Wels. 211, 228. 7. Dealing in these notes was illegal ; and no authority can be implied to do an illegal act. Clark v. Bank, 3 Duer, 241. Wright V. Overall, 2 Caldwell, 355. Craig v. Missouri, 4 Peters, 410. Briscoe v. Bank of Kentucky/, 11 Idem, 258. £1. It. Robinson, for the respondent. 1. Cowardin was, until after the death of Macmurdo, the authorized agent of the defend- ant to receive payment of the premiums falling due on his policy. (1.) The existence of war or rebellion in the State of Virginia did not revoke or in any way impair the authority of Cowardin to act as the agent in the receipt of premiums upon existing policies, (a.) Even if the defendant had been a New York corporation the war or rebellion would have no such eifect so far as existing con- tracts were concerned. A power of attorney is not revoked by war. An agent whose principal resides in the enemy's country may continue to act as agent, and his acts be valid ; e. g. he may sell a piece of property under a power given before the war, and the sale will be valid. Grriswold v. Waddington, 15 Johns. 69. He may collect debts under a power given before the war, and payment to him will bind the principal. Clarke v. Morey, 10 Johns. 69. Bell v. Chapman, Idem, 183. Even as between the citizens of two hostile countries, war does not dissolve or suspend all contracts, but only such as in their execution involve the crime of treason — giving aid and comfort to the enemy — the transfer of property, commercial intercourse and communication. And thus it is held that an alien, resident in the United States, during a war between his country and the United States, may sue and be sued. If he may sue, a fortiori he may receive payment without suit, or may authorize an agent resident in the debtor's country to do so. Clarke v. Morey, 10 Johns. 69. And in Buchanan v. Curry, 19 Johns. 136, it was held " not unlawful for a citizen of this state to pay a debt or perform a contract with an alien enemy during war if the payment or performance be made to the agent of such alien enemy wi^Jiin the state, the contract having been made before the war," " As when A, an American citizen, entered into a contract in February, 1812, with B, a British subject, for the delivery of timber, part of which was dehvered after the deola- . NOVEMBER, 1868. 605 Kobinson v. International Life Assurance Society of London. ration of war, to the agent of B, at the stipulated place within the United States." Held not illegal. See also Olarke v. Morey, 10 Johns. 69 ; Conn v. Penn, 4 Wash. C. C. Rep. 430 ;^ Dennistoun V. Imbree, 3 Idem, 396. The act of Congress of July 13, 1861, (Stat, at Large, vol. 12, p. 251, § 5,) and the proclamation of the President of August 16, 1861, in pursuance of it, was merely an application of the existing rule with respect to the inhabitants of belligerent states to the contest then going on. It did not intro- duce a more severe rule, nor did it apply to commercial intercourse between neutrals and the inhabitants of the other belligerent. It was held by Attorney General Bates, in an opinion delivered De- cember 4, 1861, that under this act of Con^-ess, and this proclama- tion, there was no objection to the execution of contracts which, while they involved the transmission of property to the loyal states, did not involve the transmission of property to the states in rebel- lion. See opinions of the Attorney General. (5.) The com- pany is, however, an English company, and in no sense whatever a New York company. It is incorporated by and under the laws of Great Britain, not under the laws of New York. The only right which it has to transact business here is as a foreign corpora- tion, under the laws of 1853. It made its deposit of fl00,000 with the insurance department as a foreign company, and makes its annual return to the insurance department as a foreign com- pany, and has an officer upon whom process may be served as a foreign company. It cannot by. its own act give itself a charter of incorporation from this state, and the manner in which it chooses to transact its business here by general agents and a board of di- rectors cannot certainly affect its legal status here as a foreign cor- poration. Being therefore a corporation in a neutral country, in what possible way could the existence of the late war, considered as a war, affect it as principal in its legal relations with its agent in one of the belligerent countries ? Regarding the late war as a mere insurrection, why should a political disturbance of that kind stri]) the agent of an English corporation, in the district occupied by the insurgents, of his authority to act for his principal? It might with equal reason be contended that all the powers of attor- ney held in this city for foreign houses were revoked during the riots of 1863. Gowardin's authority was not therefore revoked or modified by the mere existence of the war. Besides, the defend- ants themselves recognize it as existing after the war. They ad- 1 S. C. Peters C. C. 496 : 5 Wheat. 424. 606 SUPREME COURT OP NEW .YORK. Eobinaon v. International Life Assurance Society of London. mit, in their answers, the validity of the payment of the renewal premium by Macmurdo, June 8, 1861, when the war had been going on for several months. (2.) The instructions of the court, therefore, with reference to this part of the case were, if anything, too favorable to the defendants. Their ninth and tenth requests to charge were properly refused, and their seventh and eighth re- quests charged as requested, were too favorable, in that the court ruled that the defendants, an English company, " were to be re- garded in the same light as citizens of the United States, under all the provisions of law affecting the relations of 'citizens of the United States with their enemies." (3.) The explicit instructions which the jury found had been given by the general agents to Cowardin through Willis settle the question of the continuance of Cowardin's authority after the war, if there is any doubt about its continuance as a matter of law. 2. Even prior to the instructions to Cowardin, testified to by Willis and Cowardin, the apparent authority of Cowardin to re- ceive premiums of insurance upon policies was not restricted to cases of the delivery by him to the insured of receipts for such premiums, signed by one of the general agents of the defendants in' New York. (1.) His practice in this respect, even before the war, had not been uniform. (2.) Whatever his private instruc- tions may have been, they were not communicated to policy holders and could not affect them, and evidence of them should have been excluded. (3.) The renewal is complete by the payment of the premium. The receipt is evidence, not of the debt, but of its pay- ment. It is a voucher entirely for the benefit of the policy holder, which he may dispense with if he chooses. The foriji of it is a mere matter of private instruction between the company and the agent, of which the policy holder knows nothing. How then can it be claimed that the absence of this particular form of receipt was an implied revocation of which policy holders were bound to take notice at their peril ? It would be extraordinary indeed if the failure of the principal to send a voucher would destroy the effect of a payment to an authorized agent. (4.) There >\'as a receipt, signed by Cowardin alone, and not by the general agents, given to Macmurdo on the payment of June 8, 1861, which is admitted in the answer to have been a valid payment. On the 26th of June, 1861, Cowardin wrote to the general agents inclosing an account showing this and other payments, and stating that he was issuing temporal^ receipts on such payments. On the receipt of the letter NOVEMBER, 1868. ., 607 Bobinsoa v. International Life AsBurance Society of London. and account no objection was taken to his action, and the payments were posted in the defendants' books as valid payments. 3. The court, therefore, would have been justified, even without reference to the explicit directions to Cowardin to take the pre- miums and give temporary receipts, in instructing the jury that there was no restriction upon Cowardin to afiect policy holders, such as the defendants claimed. In leaving the question of such directions to the jury, and in instructing them according to the defendants' first and second requests, its course was one too favor- able to the defendants, and one with respect to which they can have no ground of complaint or exception. 4. Cowardin having been the authorized agent of the defendants to receive renewal premiums and give his own receipts therefor until after the time of Macmurdo's death, Macmurdo's policy was not forfeited, -because the premiums falling due after the 8th day of June, 1861, were paid to and received by Cowardin in confederate currency. (1.) There was evidence that the general agent, Hol- brooke, instructed Cowardin to go on and receive premiums, with full knowledge of the issuing of confederate currency ; and it also appeared that after the receipt of Cowardin's letter of February, 1863, telling all about the payments in confederate currency, and all about the circumstances of Macmurdo's particular case, the company still allowed him to act as their agent, and took no ex- ception to his conduct. (2.) The question as to the kind of money received by Cowardin, or the manner of payment to him, is entirely a question between him and his principal. His habit was not to transmit the thing actually received for premiums to the company, but to credit them with the amount of the premiums and pay the company by his own draft, so that in the case of the payments of premiums after the 8th of June, 1861, they have the liability of Cowardin precisely as they had in previous cases, and therefore, so far as the company are concerned, it is a matter of no consequence in what shape they were paid to Cowardin. This was the regular way in which business was transacted between the company and the agent, and even when this is not the regular way, it has been held that " an agreement in good faith between the insured and an insurance agent, that the agent shall be personally responsible to the insurers for the premium, and that the insured should be the debtor, not of the insurers but of their agent, is a payment of ^the premium." Parsons on Contracts, 5th ed. vol. 2, p. 487, and cases 608 SUPREME COURT OF NEW YORK. Robinson v. International Life Assurance Society of London. cited. What right, therefore, has the company to go behind the agent's admitted liability and inquire into the nature of what he received ? If he had chosen to receive any other depreciatefi cur- rency, e. g. the bills of Virginia banks, there being no fraud on the part of the policy holder, can the company on that ground claim a forfeiture of the policy? No matter what the agent received, and even if he received nothing at all, can the company claim a forfeiture of the policy ? (3.) The position of the plaintiff, there- fore, is even stronger than if he had paid the premiums in confed- erate currency directly to the company itself .and taken its receipts. Even if they could have questioned the legality of the transaction in that case, they cannot do it as the case stands, if the previous reasoning be correct. (4.) But they could not in any case claim the forfeiture of the policy on the ground of the illegality of the payment, (a.) They are an English company — a company be- longing to a state which, during the late war, was carrying on a regular commercial intercourse with the states in rebellion — run- ning steamers into their ports, recognizing their government as lawful, their currency as valid, their obligations as more valuable than those of the United States. Should such a company be al- lowed to forfeit a policy on which the premiums had been regularly paid during seventeen years on the ground that the fast few pre- miums were paid in a currency which they once sustained as far as they could, but now seek to repudiate as illegal? (5.) The company and its authorized agent had the power to waive the per- formance of this condition of the policy. This they could do by letter, by parol, or in any other way in which the intention to do so was clearly expressed ; and they did so in the present case, by voluntarily accepting a payment in confederate money as a valid payment. Buehhee v. Im. Co. 18 Barb. 541.^ Ruse v. Im. Co. 26 Idem, 656.2 (^^^^ gy accepting the payment in confederate money as a good payment, the company prevented Macmurdo from offering to pay in gold and silver, or in any other manner, or from taking any other steps to keep his policy from being forfeited. They are, therefore, now estopped from disputing the validity of these payments, (d.) It will be noticed, also, that the company have never offered to restore what they received, or any portion of it, although it had an actual value at the time it was received. It has been expressly decided that in such case a payment in con- .1 Ante, 406. " Ante, 467. NOVEMBER, 1868. 60S Robinson v. International Life Assurance Society of London. federate currency, even though it were originally received under compulsion of fear or duress, is binding. In Emerson v. Lee, de- cided in the supreme court of New Orleans, it was held tliat a payment in confederate money, which was received under com- pulsion of fear or duress, did not extinguish the debt, provided the party receiving the currency retained and tendered back the iden- tical currency to the party who used it — otherwise, if he used it, so as to recognize the payment. In such case he should not be allowed to recover the debt, as well as to have the benefit of the confederate money paid. A fortiori, of course, in this case, when the payment was voluntarily received in the beginning, as well as subsequently recognized, (e.) Executory contracts of which the consideration was confederate currency were upheld in Green v. Sizer, 40 Miss. 530, 552, and in Murrell v. Jones, Idem, 565, 574, on the ground, ably sustained, that when " the contract does not grow immediately out of the illegal act, but is unconnected with it and founded upon a new consideration, such contract is not invalid, but will be enforced by the courts, notwithstanding the issuance of treasury notes might be wholly unlawful." And so in Phillips V. Eooker, Phillips North Carolina Eq. Rep. 193 ; *S'. 0. 7 Am. Law. Reg. N. S. 40, and in Turley v. Nowell, Idem, 301, bills in equity to enforce contracts of which the consideration was confederate currency were sustained. It was conceded in these cases, on all sides, that with respect to executed contracts of .wliich the consideration was confederate money, no question could be raised. And even those courts which have been most strenuous in denying the validity of executory contracts, have held that they would not disturb executed contracts, though predicated upon con- federate treasury notes. Senly v. Franklin, 3 Coldwell, 472. Brown v. Wylie, 2 West Virginia, 502. Abbott v. Dermott, 34 Georgia,'227. The contract in question is an executed contract. The plaintiff, in this case, does not seek the performance of an executory con- tract, of which the consideration was confederate money. He merely asks that a contract, of which the consideration was lawful money, should not be set aside and forfeited on the ground that a condition subsequent of that contract was not adequately performed' by a payment in confederate money, although the other contract- ing party chose to receive the payment as a good performance, and to waive any other performance of the condition subsequent. Our' 39 610 SUPREME COURT OF NEW YORK. Eobinson v. International Life Assurance Societj of London. position is that, however it may be with the enforcement of an executory contract, the consideration of which was confederate notes, when such a contract has been executed, and the rights of the parties voluntarily settled, for the quiet and repose of society, courts will not disturb it. To illustrate our meaning : If a debt was contracted during the war, in confederate money, the creditor cannot recover it again. If a debt was contracted before the war, in gold and silver, and paid during the war in confederate money, received not under protest or duress, the debt cannot again be re- covered. If property was sold and paid for during the war in confederate money, the vendor cannot now recover back his house, nor can he sue for the value of it. Phillips v. Mooleer, Supreme Court, North Carolina, 7 ; S. 0. Am. Law Reg. N. S. p. 40. If property was sold before the war for which notes were given, and the last of those notes fell due during the war and was paid in con- federate currency, the vendor cannot now recover on that note. If property was sold before the war, for which notes were given, with the condition annexed that if the vendee failed to pay any of the notes the property should be forfeited, and the owner entitled to re- claim it, and the last one or two notes were paid in confederate money, the owner could not enforce the forfeiture, nor could he re- cover on the notes. If a lease was made before the war, liable to be forfeited by a failure to pay the rent reserved, and the rent was paid in confederate money, the landlord could not insist upon a for- feiture, or bring an action of ejectment to recover the land. If a policy of insurance was made before the war by which the com- pany agreed to pay a certain sum on the death of the insured, and he agreed to make quarterly payments during his life, and the last one or two of these payments were made in confederate money, the company cannot forfeit the policy, nor can they recover the pay- ments. This was the view taken, of the law by the learned judge who tried the case, in his refusal of the defendants' third, fifth, and sixth requests to charge, and in his instructions to the jury. The opposite view, claimed by the defendants, would uproot fhe whole fabric of southern society, resting upon the daily contracts between man and man during the four years of war, and would operate more harshly than any confiscation measure which could be devised. This court will hesitate long before adopting a principle fraught with such monstrous injustice, and which, carried out in the present case, would confiscate a policy of insurance — the provision for a NOVEMBER, 1868. 611 Sobinson v. International Life Assurance Society of London. family, to secure which premiums had been paid for a long series of years — for the benefit, not of a northern citizen, but of an Eng- lish corporation. Daniels, J. It appeared by the evidence given upon the trial of this cause that the defendant, at the time of the issuing of the policy in suit, and at all times since then, was an insurance corpo- ration created by an act of the English parliament. And as that was its legal character, although it had complied with the laws of this state providing for the manner in which foreign insurance com- panies may carry on and transact the business of insurance within this state, it nevertheless stUl remained and continued an English corporation. The law of this state, however, conferred authority upon the defendant only to transact its business within the State of New York. It could not, nor did not, authorize or empower it to appoint an agency or carry on its insurance within the State of Virginia. Whatever it did in that respect was done by virtue of the laws or comity of that state. And for that reason no particu- lar reference will be required to the provisions of the statute under which foreign insurance companies are permitted to carry on the business of insurance in the State of New York. It is sufficient, for the purposes of this case, to assume that the defendant was lawfully engaged in that business in this state, and that it had legally and properly created and maintained its agency for that purpose. And that the agency here, by a proper exercise of its authority, had appointed the agent at Richmond to transact the business of the defendant and its New York agency required to be done at that place. But even these assumptions, added to the circumstance that the defendant had organized a local board of di- rectors at the city of New York, having authority to issue policies and adjust losses without consultation with the corporation itself, could not have the effect of changing the nature of the corporation under which all this was performed. The board was organized and the agency was created by the act and under the authority of the corporation. The local board and the agency combined did not form or constitute a corporation, but simply the local means or agency through which the corporation carried on and transacted its business in this country. When the local board and agency issued a policy, collected a premium, adjusted a loss, or appointed a sub- ordinate agency, it was not done for itself but for the defendant. And the power exercised in performing either or all of those acts 612 SUPREME COURT OF NEW YORK. Bobineon v. International Life Assurance Society of London. was derived from and used for the defendant. No matter how formal or complicated such a local organization may be, it can only possess and exercise the power conferred by its foreign charter and the laws of the state upon the corporation itself. And when it makes use of such powers it does so not as> an independent body^ or in the nature of a subsisting corporation, but as an; agency, merely, of the corporation under which such organization may have been effected. This is entirely apparent from the facts that, without the charter and the laws of the state relating to such cor- poration, the local board could be neither regularly organized or acquire the power of acting at all. And in case these laws were to be repealed, and the charter were withdrawn, or the corporation wei'e to be otherwise dissolved,, the local board and agency would, necessarily, from that time cease to exist. It is not intended to be affirmed that the right of foreign corporations to transact business in this state is absolutely dependent upon the existence of some statutory regulation in their favor. But only that the transaction of such business is dependent upon a compliance with the provisions of those statutes while they may be maintained by the legislative authority of the state. But it is maintained that,, wliile these laws are in existence a compliance with their requirements,, whether it be by a mere agency, properly so called, or by a board of local dir rection, having a general charge and control over the American business of the corporation, without any imniedjate dictation or control from the corporation itself, constitutes, in fact as well as in law, a mere agency, and nothing beyond that. And. this is insuffir cient to change the domiciliary nature of the corporation itself, under whose power and authority, whether acquired by its fopeign charter or the laws of the state relating to foreign insurance com- panies doing business here, this formal as well as efficient organizar tion may have taken place. This organization was merely' the medium through which the defendant carried on and transacted its American insurance business — the means through which it was done, not the body itself, which did that business. Accordingly, when insurances were made, as is shown by the policy issued, in this instance, it was the defendant that made the insurance,, and was to receive the premium for it, and pay the loss arising under it, and not the agency and board of directors existing in the city of New York. It is true the money would pass into the hands, of the local agency, and under the control of the local board, when pre- NOVEMBER, 1868. 613 Bobinson v. International Life Assurance Society of London. miums were paid, and from them in the payment of losses, accepted and adjusted by them, but still it would be all the time received and disbursed as the money of the defendant, in whose behalf and under whose authority the local board and agency alone had the power of acting. As the contract of insurance made in this case was necessarily the contract of the defendant, therefore, when the war or southern insurrection arose it was not one which existed between a loyal citizen and a rebel ; but of necessity between a neutral and a rebel recognized by the defendant's government as a belligerent. And this recognition, though not binding upon or adopted in a friendly spirit to the government of the United States, was binding and controlling as authority upon the defendant. As a contract between a neutral and a rebel, or, as the defendant's government designated him, a belligerent, it was neither annulled nor suspended by the proclamation of the President or the laws of Congress. For they were not expressly or by necessary implication made applica- ble to cases of that character. The plaintiff was not, therefore, prevented from maintaining this action by anything rendering ille- gal the insurance which was effected in this case. But by the terms of the policy the right of the assured to depend upon it as an insurance was rendered conditional upon tlie per- formance of the stipulations requiring payment of the premiums. By the written appointment of the agent at Richmond no authority was conferred upon him to receive payment of insurance premiums. That appears to have been derived from what were called renewal receipts which were forwarded from the agency at New York to the local agent, and by him delivered to the assured as the pre- miums were paid. Even this practice was discontinued after the early part of the year 1861. This discontinuance did not arise out of any disposition manifested by any act of the defendant or the New York agency to terminate its policies or to decline pay- ment of its premiums, but on account of their inability to communi- cate readily with the local agent at Richmond. When it took place, the means for carrying on such communication had been in- terrupted and suspended by the insurrection. The facilities before that time supplied by the mails and express companies traversing the country had necessarily been withdrawn, on account of the hos- tile and dangerous condition of the southern states. And the only remainmg means of communication was that which was supplied 614 SUPREME COURT OF NEW YORK. Kobinson v. International Life Assurance Society of London. by individuals occasionally passing around or through the lines of the military forces. The agency at New York appears to have been of the most com- plete and general character, but still, as already shown, merely an agency. It therefore had the power to create and appoint subor- dinate agencies wherever in its judgment the business of the de- fendant required them to be located. And this it could do either by way of writing or by parol. And when the appointment was made by writing, and nothing limiting the action of the local agency was contained in it, the power of the local agent could afterwards, without any legal impropriety, be enlarged by parol. In this respect the New York agency was unrestricted by any lim- itations placed upon its action by the defendant, or the instruments used by itself for the creation of the subordinate local agency. For while the written power of appointment issued to Cowardin in this case conferred certain authority upon him as agent for the defend- ant, not as agent for the New York agency at the city of Rich- mond, it contained nothing preventing additional authority being given to him either by the New York agency or by the defendant itself. Neither was anything of that nature contained in the re- newal receipts. For by the printed instructions issued to him by the New York agency, he was only prohibited from receiving pre- miums without a regular renewal receipt in the absence of special authority for acting otherwise from the New York ofSce. This agency could, therefore, authorize the subordinate agency to re- ceive the premiums accruing on the defendant's policies without supplying him with renewal receipts for that purpose. And in the condition of the country after the premium was paid in June, 1861, which rendered the transmission of these renewal receipts imprac- ticable, it was claimed, on the part of the plaintiff, that such au- thority was actually conferred. Evidence was given upon the trial tending to substantiate this claim, and on the part of the defendant to resist it. This evidence was of a conflicting nature, and as it was fairly submitted to the jury, this court, at the present time, has no power to interfere with their conclusion upon that subject. They have found that the authority was conferred, substantially of course, as the evidence on the part of the plaintiff tended to establish it. And if it was, it amounted to a general authority to the local agent at Richmond to receive the premiums without renewal receipts, and without spe- NOVEMBER, 1868. 615 Bobinson v. International Life Assurance Society of London. cific directions as to what he should receive them in. It was therefore a general authority to him to collect the premiums accru- ing in the defendant's favor upon the policies which it had pre- viously issued. And this authority, under the well settled princi- ples of the law of agency, the agent became bound to his principal to make use of according to the ordinary course of the business he was employed in, and the settled usages, if any were found to exist, relating to the subject. He could not therefore bind his principal or satisfy the powers of his agency by accepting property for the premiums, for that would convert the power to receive payment merely into an authority to traffic in merchandise. But from the nature of the power to receive payment the agent necessarily de- rived the authority to accept whatever was generally used for the purposes of making payments in the locality where the debts were to be collected. As it has turned out, it would have been more profitable for the principal if the agent had collected the premiums upon this insurance in gold coin or treasury notes of the United States. But when this authority to collect the premiums was ex- ercised, it appears from the evidence that it could not be either con- veniently or effectively used in that manner. For gold was shown to have disappeared almost entirely from circulation, and it is a matter of history that the insurrectionary authorities discounte- nanced the use of United States treasury notes. When this authority was given, which the jury have found was conferred upon the agent at Richmond, there was no immediate indication that any further opportunity would be afforded for com- municating with him while hostile relations existed between the government and the rebel states. And it must therefore have been designed for his guide, under circumstances at that time not fully anticipated or comprehended. The end to be obtained by the use and exercise of the authority was to be the payment of the indebtedness accruing to the defendant. And if circumstances should arise requiring the exercise of judgment and discretion in making the collection, it must have been intended that this agent should determine such matters for himself. On account of the im- practicability of communicating either with the defendant or the general agency located here for the procurement of special direc- tions, such emergencies must, from the nature of the times, have been necessarily within the expectation of the general agency, and when they arose afterwards it was the duty of the special agent to 616 SUPREME COURT OF NEW YORK. Kobinson v. International Life Assarance Society of London. determine upon the best mode of securing the object of his princi- pal under the circumstances. His duty, as well as his authority, was to collect the debts maturing in favor of the defendant. How that could best be done was necessarily left to his own prudence and judgment when the changes in the times rendered a deter- mination upon that point indispensable to the exercise of his au- thority. That such changes did arise is clearly shown by the evidence. For soon after the agent at Richmond was directed to collect the premiums without renewal receipts, the actual currency of that locality was supplanted by confederate notes of the insurrectionary government. Although not made a legal tender for the payment of debts, all other species of currency was soon driven out of circu- lation by them. And after that they were the financial means used for buying and selling property, and for creating and discharg- ing debts ; and while that was their character, and the premium upon gold and foreign exchange was not far above them, they were received by this agent in payment of the premiums due on this in- surance. The uncontradicted evidence given in the case is that these notes were issued soon after the passage of the act providing for them, which was on the 19th of August, 1861. And from that time they passed, equal to bank notes, and during the residue of 1861, and through 1862, they were known as confederate money, and passed almost at par at Richmond. The acceptance of this currency as payment of the premiums upon the policy in suit, spurious and unlawful as the currency itself was, very materially differed from the acceptance of payment in property, or in counter- feit notes, or the notes of insolvent banks. For the acceptance of property was not within the spirit or scope of the agency, and the bills of insolvent banks and counterfeit notes would be wholly de- void of value, and therefore no payment whatever in any just sense of that term. But these notes were not of that description. For they had a circulating value at the time the agent received them, and were used for all the ordinary purposes of currency. While in that condition he received them as payment, and from the hopeful account given by him of the prospects of the confed- eracy, contained in his letter of June, 1861, he undoubtedly did so in good faith, believing that he was promoting his principal's inter- ests by doing so. From the nature of the power which the jury have necessarily found was conferred upon him, the circumstances NOYEMBER, 1868. 617 Bobinson v. International Life Assurance Society of London. that must have been expected to attend the execution of it, the emergency he afterwards encountered when the previous currency of his state was practically excluded from circulation by that which was issued by the confederate authorities, the premiums upon this policy were in judgment of law paid when the defendant's agent received the amount due for them in these notes. It was the only feasible mode, under the circumstances existing at that time, in which the premiums could be collected by him, and as it had been made his duty to obtain their payment, he was necessarily author- ized to receive it in that manner. But even if that authority were not a necessary incident of the power conferred upon him, still, as he was authorized to collect the premiums, his acceptance of confederate notes for the amount of them discharged the assured; For, under the circumstances exist- ing at the time when the authority to collect was conferred upon him, it could neither have been expected nor intended that the identical currency received by him should be remitted to the gen- eral agency at the city of New York. This currency, although valuable at Richmond, was worthless at New York. The only mode, therefore, in which the value it had at Richmond could be transmitted to New York was by purchasing gold or foreign ex- change with it, and it appears from the evidence that it was capa- ble of being so used. In addition to this, the course of business previously established between New York and the Richmond agency was for the agent at the latter place to make up his ac- counts and remit his collections once in each month, which was in- consistent with the obligation or expectation that the identical moneys received by him were to be remitted to the agency at New York. On the contrary, the notorious and general course of busi- ness in cases of that description was to purchase exchange with the local currency and in that manner transmit its value to the place to which it was to be forwarded. Not only the state of public af- fairs, but the customary mode shown to have been adopted in the transaction of this business, also indicate that it could not have been intended that the local currency used and received for the payment of debts at Richmond should be remitted in kind to New York. On the contrary, this was received for the convenient trans- action of the agent's business at the place where it fulfilled all the purposes and offices of a monetary currency. And accompanying its receipt was the corresponding duty to invest it in such funds or 618 SUPREME COURT OP NEW YORK. Bobinson v. International Life Assurance Society of London. commercial paper as would enable him to transmit its local value to the general agents, whose business was carried on at a place where that local value had no existence. Under this relation and obligation of the local agent he became the defendant's debtor for the value of the confederate currency at the time and place when and where it was received by him. And that obligation can only be effectually discharged by transmitting or paying that value in lawful money or its equivalent to the de- fendant's general agents at the city of New York. By the accept- ance of the premiums in confederate notes the agent discharged the assured, but at the same time, under his obligations arising out of the peculiar circumstances of the case and the previous course of business between himself and the defendant's general agency, he became the defendant's debtor for the amount received, with the duty of remitting it in such a manner to the general agency at New York as to transfer the full local value for the time being received by him to such agency. The portion of the answer to the sixth cross-interrogatory pro- pounded to the witness Cowardin was properly excluded. It was not evidence tending to prove any fact whatever in the case ; but it consisted merely of the supposition of the witness, which in no sense constituted evidence of the existence of the fact it related to. No ground is presented by the case in this action which will jus- tify a reversal of the judgment recovered by the plaintiff; it should, therefore, be affirmed. MuLLiN, J. I concur in the conclusion at which my brother Daniels has arrived in this case ; but I cannot agree with him that Cowardin had authority to receive premiums, after the breaking out of the rebellion, in confederate notes, so as to bind the defendant. Cowardin had been in the practice of receiving whatever passed as money in Richmond prior to the rebellion, and remitting to the defendant's agents in New York such premiums in funds current in that city. The authority thus to remit continued after the com- mencement of hostilities, as it had not been revoked. Cowardin had no authority to remit to the defendant at London. The agents here were the only persons to be recognized. And when it happened that the cuiTency in circulation in Richmond became of no value in New York, the right of Cowardin to receive it ceased. He might as well have received forged paper as confed- DECEMBER, 1869. 619 Northup V. Railway Passenger Assurance Company. erate notes. There was no value in either. His power to accept such bills in payment never existed for an instant of time, as there never was an instant of time when they were lawful currency, or of any value at New York, at which place only could Cowardin make payment. Judgment affirmed. Geokge Noethup, administrator, &c., of Lucilla Noethup, vs. The Railway Passenger Assurance Company. (2 Lansing, 166. Supreme Court, December, 1869.) Accident policy. Conveyance. — In an action upon a policy insuring against injury " caused by accident while travelling by public or private conveyances," it appeared that the as- sured, in the course of a journey, after leaving a steamboat started on foot to a railway station some seventy rods distant, though there were conveyances at hand which she might have taken. While thus walking she slipped and fell and received injuries from which she died. Beld, that the accident did not occur while travelling by anj' conveyance within the meaning of the policy. The case is stated in the opinion. D. Rumsey, for the plaintiff. W. F. Cogswell., for the defendant. James C. Smith, J. By the terms of the contract in this case, the defendant undertook to insure the plaintiff against personal in- jury " caused by an accident while travelling by public or private conveyance provided for the transportation of passengers," &c. The contract was expressed in an insurance policy or ticket, which was issued to the plaintiff, by the agent of the defendant, at Rathbone, Steuben County, and which the plaintiff procured with the intent of setting out on the same day, to travel by public con- veyance to the county of Madison. Immediately after procuring the ticket, the plaintiff entered upon the intended journey, in company with her husband and others, and the party travelled by cars on the Erie railway to Elmira, and thence by cars on the Canandaigua and Elmira road to Watkins at the head of Seneca Lake. From Watkins they went by steamboat on said lake to Geneva, where they arrived about eight o'clock in the evening. On landing at the steamboat wharf, the party started on foot, to go to the station of the New York Central Company, about seventy rods from the wharf, in further prosecution of their journey, and on the way from the wharf to the station the plain- tiff's intestate sHpped and fell upon the sidewalk, and thereby re- ceived injuries of which she died in a few days. 620 SUPREME COURT OF NEW YORK. Noithup D. Railway Passenger Assurance Company. It appears from the statement of facts submitted to the court, that persons arriving on the steamboat generally pass from the wharf to the railroad station through the public streets of Geneva ; and that upon the arrival of the steamboat, on the occasion above referred to, there were public hacks for hire at the wharf, for the purpose of conveying passengers, if hired to do so, to any part of said vil- lage, or to the railroad station. , Without undertaking to lay down any general rule, or to do any- thing more than to decide the particular case before us, we are of opinion, upon the facts submitted, that the accident referred to was not w^ithin the terms of the policy. True, the accident occurred to the plaintiff " while travelling," and that, too, while travelling on the very journey which she had in view when she procured the ticket ; but at the time when the accident occurred, the plaintiff was not travelling by any " public or private conveyance for the transportation of passengers," but was voluntarily pursuing her journey on foot, although there were conveyances at hand, which she might have employed, if she had chosen to do so. The de- fendant insured only against the perils of travelling by conveyance ; and if the plaintiff had gone " by conveyance " from the wharf to the station, the accident in question could not have occurred. The counsel for the plaintiff argues that the risk assumed by the defendant is not confined to accidents occurring during the very act of riding, but that it covers every accident happening while doing any act necessary or proper to be done, during the making of the journey, including, in the present case, the passing from the steamboat wharf to the railroad station, in any usual or proper mode. Accidents may be supposed, which though not occurring in the very act of riding in a conveyance, would be covered by the defendant's contract. The case of Theobald v. Railway Passen- gers' Assurance Company, 26 Eng. L. & Eq. 432, cited by the plaintiff's counsel, presents an instance of that kind. In that case, the train had stopped at a station where a change of cars took place, and the plaintiff, while stepping out of the car, met with an injury without any negligence on his part, and in consequence of the step of the car being accidentally slippery. There, as was said by Pollock, C. B., " though, at the time of the accident, the plain- tiffs journey had in one sense terminated by the carriage having stopped, he had not ceased to be connected with the carriage, for he was still on it. The accident also happened without negligence JUNE, 1870. 621 Koelges v. Guardian Life Insurance Company. on his part, and while doing an act which as a passenger he must necessarily have done, for a passenger must get into the carriage and get out of it when the journey is at an end, and cannot be considered as disconnected from the machinery of motion until the time he has, as it were, safely landed from the carriage and got upon the platform. The accident is attributable to his being a passenger on the railway, and it arises out of an act immediately connected with his being such a passenger." Tiie policy in that case insured against injuries " happening to the assured from rail- way accidents whilst travelling in any [first] class carriage on any line of railway," &c., and it was held that the accident was within the meaning of the policy. But that case does not go to the ex- tent of holding that the policy covered every accident happening to the assured while doing any act necessary or proper to be donej during the making of the journey. The distinction between that case and the one before us is ob- vious. There, the assured was injured while yet on the carriage in which he had made his journey, and while in the act of getting out of it, which, as a passenger, he must necessarily have done. Here, the assured when injured, was not in, on, or in any way con- nected with any conveyance, and she was pursuing a part of her journey on foot, she having voluntarily chosen to walk, in prefer- ence to taking a carriage. Judgment should be given for the defendant. Judgment for defendant. Gektrudb Koelges, respondent, vs. The Guardian Life In- surance Company, appellant. (2 Lansing, 480. Supreme Court, June, 1870.) Nonpayment of premium when due. — In an action upon a life policy conditioned to be void in case of the non-payment of premium when due, it appeared that the premium had not been duly paid in two instances. The plaintiff then proved that she had subsequently paid the amount due to one of the company's clerks, and had received from him a receipt for the same, signed by himself for the secretary. It also appeared that though the clerk had been sometimes employed by the company to collect premiums, this was no part of his duties ; and though he had acted as agent for the company, he had in fact no author- ity to receive premiums upon policies which had been forfeited ; nor had he any authority to sign the secretary's name to the receipts. The company never received the money paid by the plaintiff to the clerk, though knowledge of the transaction was brought to their cashier. Held^ that the company were not liable. ByriaiBs and. charter. — The company ma}' introduce copies of their by-laws and charter in evidence, to show the powers of their agents and employees In respect to the receipt of premiums. 622 SUPREME COURT OF NEW YORK. Koelges v. Guardian Life Insurance Company. The case is sufficiently stated in the head-note and in the opiL-. ion. L. K. Miller, for the appellant. B. D. Bernard, for the respondent. Baknaed, p. J. At the time of the payment by plaintiff to Hoi- ley of the two quarterly premiums, the policy was forfeited by itf terms. It then became incumbent upon the plaintiff, in order to recover upon the policy, to show a receipt of the premium, by some one authorized to receive it after the forfeiture, or to show a ratifi- cation of an unauthorized receipt by the company, by an accept- ance of the money with knowledge of the facts, or in some other way. I think the case fails to show Holley's authority to receive the money after forfeiture. He was a clerk of defendants ; had been an agent to receive applications for insurance in New Jersey, which appointment had been revoked. He had been sent by a previous secretary to collect premiums, but always with strict orders to col- lect none on forfeited policies. Holley signed the receipts for the payments in question as agent for the then secretary. There is no proof of his power to act as agent for the secretary. Neither HoUey nor the secretary is produced as a witness. If the secre- tary had power to waive the forfeiture, he is not proved to have done it. Holley had never done a like act ; his power to bind the company, by receiving money on policies on life, would be no evi- dence of power to waive the forfeiture by receiving the premiums, after the policy had ceased to exist by reason of non-payment. The company have never received the premiums collected by Holley. I am unable to distinguish this case in principle from an unre- ported case in this district, (Taylor v. The British Commercial lAfe Insurance Company.') In that case, the policy was upon the life of one E. P. Taylor. William Wilson was the agent to receive the premiums ; he was instructed, if the premiums were not paid in thirty days, to return the receipt to the general agent in New York. The policy provided that it should be void if the premiums were not paid within thirty days after the same became due. Tay- lor suffered default for over thirty days. About fifteen days after the policy became forfeited, the assured paid the premium to a clerk in the office of the agent, Wilson ; within a few days after this pay- ment the assured died. The company never received the money. JUNE, 1870. 623 Koelges v. Guardian Life Insurance Company. The clerk in the ofBce of the agent had generally received the premiums for his father, the agent. The court held that William Wilson had no power to waive the forfeiture, or to bind the com- panj' by receiving the money after default. That he was a special agent, and could not exceed his powers as such, and bind his prin- cipal by his acts, although the assured knew nothing of his limited powers. In that case the charter and by-laws were admitted in evidence. I think it was erroneous to exclude them in this case. If they did show who was authorized to remit forfeitures, they should have been received. From the evidence of the president of defendants, I suppose they did. The rejected evidence, or such parts of it as would show its pertinency, should properly have been presented by the case, so that this court could more satisfactorily determine this point. I think the judgment and order denying a new trial should be reversed, and a new trial granted, costs to abide the event. Note. — If the company had received the money paid to the clerk, this would have been a waiver of the forfeiture, and they would have been liable. See Bouton V. American Mut. Life Ins. Co., ante, 51, and cases cited. NORTH CAROLINA, Hezekiah Gr. Sprxjill vs. The North Carolina Mutual Life Insurance Company. (1 Jones, 126. Supreme Court, December, 1853.) Death in armed resistance to lawful authority. Construction. — In an action upon a policy of insurance on the life of a slave conditioned to be void " in case the said slave shall die by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped authority, or by the hands of justice," it was proved that the slave met his death in the armed resistance of a la^vful patrol. Held, that the condition of the policy was not broken. Assumpsit, before Ellis, J., fall term, 1853, of Washington su- perior court, upon the following agreed case. The plaintiff owned a negro slave named Harry, and on the 13'th of September, 1850, the defendants insured his life for five years, in the sum of $500, by a policy which contained the following clause : " In case the said slave shall die -by means of any invasion, in- surrection, riot, or civil commotion, or of any military or usurped authority, or by the hands of justice, this policy shall be void, null, and of no effect." During the year 1852 the slave ran away from the plaintiff, and a reward was offered for his restoration. Afterwards, on a night of September of that year, a party of men, being patrols lawfully appointed in Martin County, went to a negro house, in that county, where the slave in question was found. They told him to submit, and he would not be hurt ; but this he refused to do, and came to the door armed with a scythe-blade ; this he did twice ; then re- entered the house, and shut the door. He then opened the door and jumped out, with the blade of the scythe raised in a striking position. One of the patrol standing in the door, about eighteen feet distant, without saying anything to him, shot the slave in the right side, of which wound he died in a few minutes. Upon these facts the court below gave judgment for the defend- ants, and the plaintiff appealed. Heath, for plaintiff. Busbee ^ Smith, for defendants. DECEMBER, 1853. - 625 Spruill V. North Carolina Mutual Life Insurance Company. Nash, C. J. We do not concur in the opinion of his honor below. The death of the slave Harry does not come within any of the exceptions contained in the policy. It is not pretended that his death was occasioned either from the want of proper medical aid, or by an invasion of the country. An insurrection is, by Mr. Worcester in his dictionary, defined to be a seditious rising against the government, (as in the case of Governor Dorr, in Rhode Isl- and ;) a rebellion ; a revolt. Justice Blackstone, in his 4th vol- ume, 147, says, a riot is where tliree or more persons actually do an unlawful act, either with or without a common cause. To this Chitty, in his note, says, " tlie intention with which the parties as- semble, or at least act, must be unlawful," and this qualification of Mr. Chitty is recognized by this court in the case of State v. Stal- cwp, 1 Ired. 30. A commotion is defined, by the lexicographer above referred to, to be a tumult ; and a tumult to be a promiscuous commotion in a multitude ; an irregular violence ; a wild commotion. A civil com- motion, therefore, requires the wild or irregular action of many persons assembled together. There has not been, within our knowledge, any usurped civil power, and no military power but that recognized by the constitution. To die by the hands of justice is to die by some judicial sentence for the commission of some felony. Let us now test this case by the definitions above stated. The slave Harry was owned by the plaintiff", and was, at the time his death occurred, a runaway. The individual who shot him was one of the regular patrol, who were then engaged in discharging their proper duty, in their proper district ; and finding the slave there, they endeavored to apprehend him, as it was their duty to do, aiid m the attempt made by him to escape he was killed. Here was no seditious rising against the government, nor was there any riot. The patrol was there for a lawful purpose ; there was no tumult, nor any military or usurped power ; nor did Harry die by any ju- dicial judgment or proceedings. The plaintiff^'s case is not within any of the exceptions or conditions of his policy. - We cannot adopt the ingenious suggestion of the defendants' counsel, that the defendants intended to insure against what is called a natural death, as distinguished from a violent death. It is sufiScient to say, such is not the contract. Judgment reversed, and judgment here, according to the case agreed, for the plaintiff; for the sum of f 500, with interest from the 1st of September, 1852. 626 SUPREME COURT OF NORTH CAROLINA. Woodfin «. Aslieville Mutual Insurance Company. John W. Woodfin vs. The Ashetille Mutual Insurance COMPANT. (6 Jones, 558. Supreme Court, August, 1859.) Payment of premium. — In an action against a life insurance company whose charter and by-laws required the payment of annual premiums, but whose policy contained no con- dition of forfeiture in case of non-payment of said premiums, heM, that the insurance was not forfeited by a failure to pay the annual instalment. Notice of loss. — The by-laws of a mutual life insurance company contained a provision, re- quiring notice of loss forthwith, and a particular account on oath or affirmation of the circumstances therewith connected. It was admitted that the plaiutiflf had not given formal notice, with the circumstances of the loss, on oath; but it was also admitted that he had given informal notice as soon as the loss occurred. Held, that the action coald not be maintained. Assumpsit, before Bailey, J., at special term, July, 1859, of Buncombe superior court. The plaintiff declared upon a policy of insurance upon the life of a slave, proved to have died within the period of insurance. There were two points of controversy, ^rs^, whether, as the plain- tiff did not pay his annual instalment, as required by the charter and by-laws of the company, he had forfeited his. right to recover the insurance money. The plaintiff, in reply, insisted that he had had no notice that the instalment was due, or about to fall due. It was proved that it was the custom of the company to notify per- sons bv a written notice, dropped into the post-office, shortly before an instalment became due, and it was proved by their secretary that he did in fact notify the plaintiff in that way, but whether he ever received the notice he could not say. The insurance was for five years, and the requirement as to the payment of instalments was not inserted as a condition on which the insurance is to con- tinue. The second point of controversy was upon the 18th section of the company's by-laws, which was as follows : " All persons insured by this company, having sustained losses by death or fire, shall forthwith give notice to the secretary of the company, of such loss, and, upon oath or aflBrmation, shall deliver a particular account of the circumstances therewith connected, to- gether with proper vouchers of the amount of loss or damage sus- tained.'' It was admitted by the plaintiff that he had not given formal notice, or stated the circumstances, on oath, connected with the AUGUST, 1859. 627 Woodfin V Asheville Mutual Insurance Company. loss ; but it was admitted on the other side that he gave the com- pany informal notice as soon as the loss occurred. The question arising on this state of facts, was whether the suit could be sustained without such notice. Upon these facts agreed the ease was submitted, and his honor decided for the defendants, and the plaintiff appealed. N. W. Woodfin, for plaintiff. Merriman, for defendants. Peaeson, C. J. Upon the point, that the policy was forfeited by reason of a failure, on the part of the plaintiff, to pay the annual instalment, this court is of opinion with the plaintiff, irrespective of the question of notice. The policy contains no condition by which it is to be void if such payment is not made, but insures the life of the slave for five years, absolutely, in this respect — leaving the annual payment of $12.24 to be enforced, not as a condition, but as a part of the consideration. Upon the other point, i. e., the effect of the failure on the part of the plaintiff to give notice to the secretary of the company of the death of the slave, accompanied by " a particular account of the circumstances therewith connected, upon oath or affirmation," as required by the 18th section of the by-laws, this court is of , opinion against the plaintiff. It is true, the policy contains no such condition, but as this is a mutual insurance company, the plaintiff, as one of its members, accepted the policy, subject to the provisions expressed in the by-laws, and, in order to maintain an action, it was incumbent on him " forthwith," that is, in reasona- ble time, to give the notice and deliver a particular account, on oath, of the circumstances, as required. This requisition is not a mere formal matter to enable the com- pany to pay the amount of the insurance without suit, and thereby save cost, but is a matter of substance, in order that the company may, as soon after the loss as practicable, institute all proper in- quiries as to the circumstances, so as to guard against fraud by false swearing and other means of imposition. It follows that this requirement must be strictly performed, and that an informal no- tice, without a statement on oath, will not answer the purpose, or entitle the party to maintain an action. Pee Curiam, Judgment affirmed. Note. — It is difficult to perceive any solid ground for the ruling of the court in this case respecting notice of the death. Taylor v. JEtna Life Ins. Co., ante. 628 SUPREME COURT OF NORTH CAROLINA. Woodfin V. Asheville Mutual Insurance Company. 189, is an authority in point, in which it is held, upon similar facts, that the fail- ure to send the physician's certificate on oath, when notice of the death had act- ually been given, would not avoid the policy. This seems to accord more with reason. If the chief object of notice, as stated in the opinion, is to enable the company to institute further inquiry, and to guard against fraud, this end would be as well attained by the simple, informal notice, as by a full statement on oath. Upon the other point respecting non-payment of the premium, see McAllister V. New England Mut. Life Ins. Co.^ante, 293 ; Ruse v. Mutual Benefit Life Ins. Co., ante, 467, and note. OHIO. The Fraternal Mutual Life Insurance Company vs. Henri- etta Applegate. (7 Ohio State, 292. Supreme Court, December, 1857.) Wife'i separate property. — Under the general Jaw relating to life insurance, whicli pro- vides that " it shall be lawful for any married woman by herself, and in her own name," &c., " from her separate property, to cause to be insured for her sole use the life of her hus- band; " and the 8th section of the act incorporating The Fraternal Mutual Life Insur- ance Company, 49 0. L. 220, which provides that any married woman may insure the life of her husband for her sole use, " and in case of her surviving him, the amount shall be payable to her for her sole use and benefit, free from any claims of the creditors, or repre- sentatives of her husband." Held^ that these provisions treat the wife as & feme sole in respect to policies of insurance taken out in her name upon the life of her husband, and place such policies beyond the reach of the husband, and that a subsequent surrender by him of such a policy would be unauthorized and void. Admissions of the husband respecting the wife's separate property, and prejui^icial to her in- terests, are inadmissible. Covenant, with two counts, upon a life policy, dated January 7, 1851, on the life of Henry S. Applegate, in the name, and for the sole use and benefit of his wife, Henrietta Applegate, in the sum of $2,000. The application was signed " Henrietta Apple- gate, per H. S. Applegate." Among the answers to the interrogatories contained in the ap- phcation and made part of the policy in terms, the said Henry states that he " had not since birth been afBicted with consumption, or any other disease of the lungs, spitting of blood, habitual cough," &c. The declaration' made profert of the policy. The defendant set out, upon oyer, the policy and the application, and filed eight pleas. The first plea was non est factum, and was followed by four, set- ting up misrepresentations and false allegations in the application as to the health of H. S. Applegate, and the spitting of blood. Replication to' the pleas. The sixth plea alleged the surrender of the policy, in considera- tion of the supposed misrepresentation, and the issuance of a new policy for $500 upon his life, dated June 21, 1852, for the benefit of his representatives, without premium. Demurrer to this plea, which was sustained in the court below. 630 SUPREME COUHT OF OHIO. Fraternal Mutual Life Insurance Company v. Applegate. The seventh plea alleged the surrender, by H. S. Applegate, of the policy sued on, with the consent of the defendant in error, and that he thereupon took out a new policy for $500, which his wife accepted. The eighth plea alleges the surrender of the policy, and the ac- ceptance of another for 1500 by the defendant in error. Replication to the seventh and eighth pleas. The grounds of defence were — 1. Misrepresentations in the application upon which the policy is- sued. 2. The surrender of the policy, and the acceptance of a new one by Mrs. Applegate. The court below tried the cause on submission, and found the issues for the plaintiff. Motion for a new trial by the company overruled, and judgment entered. Judgment affirmed on error at the general term of the superior court. Petition in error to the supreme court. Taft ^ Perry, for plaintiff in error. 1. The original policy was surrendered for a valuable considera- tion, and the surrender was binding. 2 Story Eq'. §§ 1378, 1380, 1382, 1388, 1389, 1390, 1392, et seq. to 1402. 2 Roper H. & W. ch. 19, §§ 2, 182. 2 Ves. 75, 191, 610, 612. 11 Ves. 220, 221. 18 Ves. 435, 436. 17 Johns. 548. 1 Johns. Ch. 350, 450. 4 Barb. 407, 546. 2. The policy was void for the reason that Applegate had been afflicted with spitting of blood previously to the issuing of the pol- icy, contrary to the statements in the application. His subsequent declarations on this subject should have been received, hecemse, first, they were the declarations of the person who knew best the facts in the case. Declarations of a member of a family on a question of pedigree, 1 Greenleaf Ev. §§ 109-123 ; of a former owner of real estate, made while owner, 7 Conn. 319, 3 Rawle, 438, 4 S. & R. 174, 6 Watts, 388 ; stand on reasons not so strong as the declarations of a party as to his own health. Statements of patients to their physicians, admissible as to health, because they best know the facts, Aveson v. Lord Kinnaird, 6 East, 188 ; 1 Greenleaf Ev. §§ 109, 123 ; Angell on F. & L. Ins. § 315. Keller ^ Force, for defendant in error. 1. The policy became the wife's separate property, and his at- tempted surrender was void. Swan's Rev. St. 480. 49 0. L. 220. DECEMBER, 1857. 631 Fraternal Mutual Life Insurance Company e. Applegate. 2. The husband's declarations were not competent, and the fact that he was dead could not make them competent. Lund v. Tyngsborough, 9 Gush. 36. They were not competent as declara- tions of an agent. Smith v. Bodfish, 39 Maine, 136. Burnham v. Ellis, Idem, 319. Franklin Bank v. Cooper, Idem, 542. Patton v. Minesinger, 25 Penn. State, 393. Runk 'v. Ten Eyck, 4 Zab. 756. Welsh v. Johnson, 2 Sneed, 73. Qov. ^ Lex. B. v. Ingles, 15 B. Mon. 637. Bait. ^ 0. E. v. aallaghue, 12 Gratt. 655. Admissions of a husband will not bind a feme covert as to her separate estate. Dawson v. ffall, 2 Gibbs, (Mich.) 390. They were not admissible on the ground of being declarations of a sick person. Grardiner Peerage Case, note to Aveson v. Kin- naird, 6 East, 188. Lusk v. McDaniel, 3 Ired. 485. Eckles v. Bates, 26 Ala. 655. Allen v. Van Oleve, 15 B. Mon. 236. Aveson v. Kinnaird, 6 Ea^t, 188, overruled by Stohart v. Dry- den, 1 Mees. & W. 615. Scott, J. The first question which arises in this case is : Did the court below err in sustaining the demurrer to the sixth plea ? The general law in relation to life insurance taken for the bene- fit of wives, provides that " it shall be lawful for any married woman by herself, and in her own name," &c., "from her separate property, to cause to be insured for her sole use the life of her hus- band," &c. Swan's Statutes, 480. By the eighth section of the act incorporating this company, (49 O. L. 220,) it is provided, " that policies of insurance may issue to any married vs^oman in her own name, or in the name of a third person, as trustee, to cause to be insured for her sole use, the life of her husband ; and in case of her surviving him, the amount shall be payable to her for her sole use and benefit, free from any claims of the creditors or representa- tives of her husband, provided the annual premium shall not exceed the sum of $150, unless paid from the private property of the wife." These provisions treat a married woman as a feme sole in re- spect to policies of insurance taken out in her name upon the life of her husband. Such policies become her separate property, and are placed beyond the reach of her husband or his creditors. Henry S. Applegate had, therefore, no legal right to control this policy, and the unauthorized surrender of it by him, as set up in the sixth plea, constituted no bar to the action ; and the demurrer was, therefore, properly sustained. It is shown by the record, that the plaintiff in error, upon the 632 SUPREME COURT OF OHIO. Fraternal Mutual Life Insurance Company v. Applegate. trial in the court below, offered in evidence certain statements made' by Henry S. Applegate to Doctor Vattier and several other wit- nesses, during the negotiation for the surrender of the pohcy, and the substitution of the $500 policy in its stead, which took place more than a year after the issuing of the policy upon which suit was brought. This policy was issued June 7, 1851. Mr. Applegate was taken with hemorrhage of the lungs in De- cember following, from which he never fully recovered ; and died of pulmonary consumption about the close of the year 1852. The statements offered in evidence consisted of admissions made by said Henry S. Applegate in relation to the condition of his health before the date of the policy sued upon ; that he had spit blood be- fore that time, and that his declaration upon that subject, contained in the application for the policy, was untrue. Counsel for the defendant in error objected to the reception of these admissions by the court " for the purpose of establishing the condition of Henry S. Applegate's health before the issuing of the policy ; which said objection was sustained by the court, and there- upon the court refused to receive and consider the said declarations for the said purposes." Was this ruling erroneous ? There is no direct evidence in the case that Applegate, in the surrender of his wife's policy, or in the negotiations which preceded this arrangement, acted as the authorized agent of Mrs. Applegate. It is not shown that she had knowledge of the transaction at the time, or ratified it afterwards. The surrender was made in writ- ing by Henry S. Applegate, in his own name. He did not even profess, as in the taking out of the policy, to be acting as the agent of his wife. The transaction was manifestly against her interest, for the second policy was for but one fourth the amount of the former, and was for the benefit of other parties. Her assent can- not, therefore, be presumed. The court below accordingly found, and, as we think properly, in her favor, upon the issues presented by the seventh and eighth pleas. The statements in question, then, are the declarations of a stran- ger, one who is neither a party to the suit, nor was, at the time of making them, acting as the agent of a party. They are not the declarations of a sick person in relation to his condition at the time of making them ; for they relate to transactions and a state of facts long past. They were not admissions against interest ; for they could injuriously affect only his wife's separate property. They DECEMBER, 1857. 633 Fraternal Mutual Life Insurance Company v. Applegate. were not the statements of one who had been a witness on the trial, offered to impeach his credit ; but were offered and excluded merely as proof of the facts claimed to have been thus stated. It may be true that these were the declarations of the person who best knew the facts of the case ; but whatever weight this consid- eration might properly give to competent evidence, it cannot re- move the objection to its competency. Coming from the witnesses through whom it was offered, it was still me*e hearsay. Nor do the declarations become competent because made by a person de- ceased, and who cannot, therefore, be produced as a witness upon the trial. This circumstance alone, however unfortunate for a party, will never convert hearsay into competent evidence. And it cannot be claimed that from the mere relation of husband and wife a/eme covert'iB bound, in respect to her separate property, by the admissions or declarations of her husband. Indeed, I am not aware of any recognized rule in the law of evidence under which such declarations can be held competent. Counsel for plaintiff in error rely mainly on the authority of Aveson v. Kinnaird, 6 East, 188. The admissibility of the evidence in that case was placed upon grounds which do not exist in the case before us. The declara- tions there were regarded as a species of cross-examination, and as statements made by a sick person in relation to the condition of her health at the time of making them ; besides, the authority of that case has not been acquiesced in ; and the contrary doctrine was since held in Stobart v. Bryden, 1 Mees. & W. 615, where the question was considered both on principle and authority. We think that the evidence, viewed in connection with the pur- pose for which it was offered, does not fall within any established exception to the general rule in regard to hearsay, and was there- fore properly excluded. Discarding these admissions of the deceased, we have no doubt that the finding of the court below upon the issues made by the first five pleas was fully warranted by the evidence. Judgment affirmed' Bartley, C, J., and Swan, Beinkebhoff, and Sutliff, JJ., concurred. See to the same effect, Rawls v. Amer. Mut. Life Ins. Co., ante, 649, 558 ; but see Kelsey v. Universal Life Ins. Co., ante, 76. 634 SUPERIOR COURT OF CINCINNATI. Kobert v. New England Mutual Life Insurance Company. Sanderson Robert vs. New England Mutual Life Insur- ance Company. (Disney, 355. Superior Court of Cincinnati, May, 1857.) Payment of premium. — In a contract of life insurance the prompt payment of the premium is of the substance of the agreement, and this principle applies as well to the case of a premium for which a credit has been given as to any other. Premium. no(e. — A policy of life insurance, conditioned to be void in case the premium should not be paid on or before the time therein mentioned, was issued on the paj-ment of half the premium in cash, and the giving a note for the balance. The note was not paid at maturity, and the insured died shortly after it became due. The testimony was conflicting as to whether the insured was notified of the maturity of the note ; but payment of the same was ofiered after the death of the assured and refused. Held, that the com- pany were not bound to give notice to the insured respecting the maturity of his note, and that by the failure to pay the same when due the policy terminated. Beld, also, that this was not a forfeiture which could be relieved against. Action upon a life policy, issued by the defendant on the life of George W. Sessions, dated February 22d, 1855, for the term of seven years, in the sum of $8,000, in consideration of aa annual payment of |90.40. The policy contained the following clauses : " In case the premium shall not be paid to said company on or before the time herein mentioned for the payment of the same, then, and in every such case, said company shall not be liable for the payment of the sum insured, or any part thereof; and this pol- icy shall thereupon cease and be forfeited." " In case of this policy becoming null and void, the holder of the same will not be entitled to a return of any part of the premium paid thereon." " This policy, and any sums that shall become due thereon from said company for loss, or for distribution, or for return of premium, are pledged and hypothecated to said company, and they have a lien thereon, to secure the payment of any premium, or part thereof, on which credit may be given, or to be given, to said company therefor ; and on non-payment of any such premium, or such note or security, or any part thereof, when due, all claim on this policy shall be forfeited to said company, and the policy shall be void." The application contained these words: "Premium payable in advance." The policy issued on payment of §45.20 cash, and the giving a note of even date thereof for the same amount, payable August 22d, 1855, These facts were indorsed on the policy. This pol- MAY, 1857. 635 Kobert v. New England Mutual Life Insurance Company. icy was returned to the company for a slight alteration and a new policy issued ; but the indorsement respecting the note was omitted by mistake. Action was brought on this latter policy. The note was not paid at maturity, and the said Sessions died on November 15, 1855, after the note became due, and the company were notified of the death. No demand or offer of payment was made, though there was conflicting testimony as to whether Sessions was notified when the note matured. The note remained with the agent of the company after the death of the insured, when, on November 20, 1855, plaintiff offered payment of the same to said agent, which was refused. Filden, Rairden ^ Curwen, for plaintiff. Coffin ^ Mitchell, and Kelber ^ Force, for defendant. Gholson, J. Before proceeding to examine the particular cir- cumstances of this case, it is proper to consider the clauses of the policy having reference to the premiums to be paid to the com- pany. The first clause is clearly intended to show the amount of the premiums and the times they are to be paid. The second clause on the subject clearly provides that if a premium be not paid at the time mentioned in the policy, the company shall be no longer liable, and the policy becomes void. The third clause as clearly provides that wh^en the policy becomes void, and the liabil- ity of the company upon it ceases, there shall be no right in the holder of the policy to .claim or recover any part of the premium before paid. This clause was intended to apply to the case where a premium had been paid and the policy became void before the time provided for the payment of another premium. It might, but for this clause, have been claimed that the consideration having failed in part, there should be a proportionate return of the pre- miums. No such claim could be made as to premiums before fully earned. As to them such a provision was unnecessary, and the terms of the clause are limited to any part of the premium before paid, meaning the current premium then being earned. The last clause on the subject of premiums is intended to provide, -generally, for circumstances having relation to the giving of credit for any premium, or part thereof; the particular circumstances under which credit may be given not being described, but left to an arrangement between the parties. There are two general objects apparent: First, the securing a lien on the policy, and an any sums becoming 636 SUPERIOR COURT OF CINCINNATI. Robert v. New Bngland Mutual Life Insurance Company. due thereon for the payment of any premium, or part thereof, on which credit may be given. Secondly, to make the continnanoe of the policy depend on the payment of any premium, or part thei'eof, for which credit had been or might be given, when the same became due. As has been suggested, the system of credits the company had adopted, either generally or in the particular instance, is not speci- fied in the policy. If credit was given for the first premium, or a part of it, the mode and time were not thereby fixed as to any sub- sequent premiums, and might be changed by the parties. Indeed, there is nothing in the policy which at all makes it obligatory on the company to continue to give credit for the future premiums, though it might have been for the first. The clause, then, being general in its terms, and intended to apply to different and differing circumstances, it is not necessary that every part of the clause should have meaning and effect as to the acts of the parties in the particular case. As the credit was given, a portion of the clause might have no meaning. By a change in the mode of giving credit, or an extension of the time of credit, its proper meaning might ap- pear. The clause is in the nature of a fundamental law, intended to apply to such cases as might come within the purview, and to the extent only that they might be embraced. It does not necessa- rily apply, in all its parts, to every case in which credit is given for a premium, or a part thereof. For example, the portion of the clause securing a lien on the policy, or on any sums of money becoming due thereon, might be operative in some cases and not in others. It is quite clear that the last clause on the subject of premiums embraces within its terms the present case. The conclusion most obviously presented by all the circumstances of the case, and upon a fair construction of the contract is, that there was a giving of credit for a part of the premium. The whole premium was not paid in cash ; for one half of it a credit was given, and a note taken for the amount. The clause, in express terms, provides that if any note given to the company for a premium, or a part thereof, shall not be paid, when due, all claim on the policy shall be forfeited to the company, and the policy shall be void. The contingency for which provision was thus made, happened. A note was given for a part of the premium ; it became due during the life of the assured, and was not paid. It is claimed, on the part of the plaintiff, that the recital in the MAY, 1857. 637 Robert v. New England Mutual Life Insurance Company. first clause of the policy, that the premium for the first year had heen paid, is conclusive, and precludes the defendant from showing that there was a giving of credit for a part. It is claimed that if a note was received, it must be considered as having been received as a payment. Without examining into the various decisions upon this subject, I think there are several satisfactory reasons why no such claim can be sustained in this case. The rule would not, cer- tainly, apply to a case where, at the time the policy was delivered, there was an indorsement upon it showing the truth, that half the premium had been paid and a premium note given for the other half; nor would it apply where a policy so indorsed had been re- turned to be altered in a matter for the benefit and accommodation of the assured, and another policy with the alteration being sub- stituted, and, by mistake and accidental omission, no indorsement was made. There is another reason equally satisfactory to my mind why there is no estoppel in this case. The very instrument containing the recital claimed as the estoppel, also shows upon its face, that, notwithstanding the recital, the existence of the other matter is contemplated, and the right to show the truth is reserved. The last clause expressly refers to " any note or security given, or to be given " for the premium, or any part thereof. Why refer to a note given at the time of the delivery of the policy unless the fact, if it existed, that such a note had been so given might be shown ? There is still another reason, which, as it has a bearing upon another point, it is proper to state. The execution and de- livery of the policy, and the making and delivery of the note, were simultaneous acts, were parts of the same transaction, and, as to the point of dignity as contracts, stand in law on the same footing, neither being under seal. Now the note, on its face, expressly shows the consideration for which it was given, " being in part of premium on policy No. 5237, of said company, on the life of George W. Sessions." Thus, in direct terms, negativing the con- clusion that the whole premium had been paid, and in as direct terms bringing the note itself within the provisions of the last clause, as a note given for a part of a premium, and therefore a premium note within the meaning of that clause. Here it is proper to observe, that the terms of the note that it was for a part of the premium, meaning, undoubtedly, the first annual premium of $90.40, together with the fact that interest is charged on the amount of the note fi:om date, shows that it was not the contract 638 SUPERIOR COURT OF CINCINNATI. Robert v. New England Mutual Life Insurance Company. of the parties that the premiums were to be paid semi-annually. The apparent proposition so to pay, contained in the application, was either not assented to by the company, or more probably was understood as a request that a credit of six months, according to the conditions in the policy, should be given for one half of each annual premium ; and this request, as to the first premium, was granted, and the policy and npte accordingly executed and deliv- ered. According to the view of the case which has been presented, the defence of the defendant must be made good upon the breach of the condition as to the non-payment of the note given for a part of the premium ; and the plaintiff must show, either generally or under the circumstances of this case, upon some principles of law or equity, a right to recover notwithstanding that breach. As a general rule, when the terms of a contract between parties are ascertained, what those terms require is the law of the case, and must determine the rights involved. If the terms of the con- tract violate no' law or principle of public policy, and have been assented to upon an adequate consideration, and without fraud or duress, it is a principle of the common law that there should be an exact and strict compliance. 13 Ohio, 79-83, JEastonv. Pa. ^ Ohio Canal Co. 5 Denio, 326-329, Ugan v. Mut. Ins. Co. of Albany. 3 Hill, 161, 162, Beadle v. Chenango Co. Mut. Ins. Co. 2 Denio, 75-84, Jennings v. Chenango Co. Mut. Ins. Co. To the strict and rigorous rule of the common law, as to the con- struction and enforcement of contracts and conditions, an exception has been established by which relief is given in certain cases, upon principles of eqtiity, against penalties and forfeitures. In some cases this relief has been obtained in a court of law ; in others, an application to a court of equity has been required. In what cases and under what circumstances this relief would be afforded in equity, has been a subject of no little discussion. " There is no branch of the jurisdiction of equity more delicate than that which goes to restrain the exercise of a legal right. That jurisdiction rests upon this principle, that one party is taking ad- vantage of a forfeiture." " Equity will relieve where a penalty is forfeited, if the case admits of a certain compensation ; and the true foundation of the relief is, that when penalties are designed only to secure money, or damages really incurred, if the party ob- tains his money or damages, he gets all that he expected or re- MAY, 1857. 639 Robert v. New England Mutual Life Insurance Company. quired." The principle is not confined in its application, to breaches of covenant for non-payment of rent. " It is still, how- ever, in all the cases, a forfeiture or penalty which is in question." 2 Johns. Ch. 526-535, Skinner v. Dai/ton. " It is said, that in all cases of penalty or forfeiture, equity will relieve, if compensation can be made and the default be only in time. The true ground of relief in such cases is to be found in the intention of the parties. Where, from the nature of the agreement, the penalty is only in- tended as a security that the consideration shall be performed, a court of equity may relieve ; for, notwithstanding they do so, they give the party that which he stipulated to receive, and therefore no injury is done : but where the relief would destroy the substance of the contract, as if the thing stipulated be a collateral act, relief cannot be granted, for no precise value can be afBxed to such an act." 1 Ohio, 14, 20, 'Eutcheson v. MoNutt. It will have been observed from the statement of the principle in tlie authorities quoted, that it is the intention of tlie parties which is to be looked at to ascertain whether, in a particular case, there be a proper ground for relief; whether the case be one of the ex- action of a forfeiture, or the relief, if granted, would destroy the substance of the contract, according to the real intention of the par- ties. And this intention is to be ascertained from the nature of the agreement rather than from the language of the contract. 16 Mees. & Wels. 846, Price v. Gireen. Of this, the cases as to liquidated damages present an obvious illustration. Parties can- not, by any particular phraseology, turn what is properly a penalty into liquidated damages. 5 Covs'en, 147, b, Spencer v. Tilden. It will be observed that in one of the authorities, the case of a collat- eral act, as to which no value can be fixed, is put as an example merely, and does not exclude the idea that there may be cases where no relief 6an be obtained when there has been a breach of a covenant for the payment of money at the specified time. That there are such cases, is shown by the authorities : 2 Story's Equity, § 1325 ; 13 Ves. 433, 434, Sparks v. Prop. lAv. Water Works ; 1 Russ. & My. 506 ; 4 Cond. Eng. Ch. 533, Davis v. Thomas. But without inquiring now into their character, or the principle on which they rest, I proceed to the direct question, whether there can be relief against the prescribed consequence, in a policy of life insurance, of the non-payment of the premium at the time it be comes payable, according to the contract between the parties. 640 SUPERIOR COURT OF CINCINNATI. Robert v. New England Mutual Life Insurance Company. It is difficult (looking at the clauses in the policj/) to see any clear distinction, as regards relief in equity, between the non-pay- ment of an annual premium at the stipulated time, and the non- payment of a premium, or part thereof, for which credit had been given. If, for example, the company had given credit for one half of the premium for a year, then the second annual premium, as well as the part for which credit had been given, would become due at the same time. Why should a different rule apply ? Was it not the intention of the parties, and is it not the nature of the agreement, that they should stand on the same ground ? Indeed, the counsel for the plaintiff, during the argument, was understood to claim that relief would be proper in either case, interest for the delay being sufficient compensation as well in one case as in the other ; and if there be nothing in the nature of the agreement to show that this would not be so, the conclusion seems just. I shall therefore inquire, in the first place, as to the ordinary annual premium, in a life policy, whether its non-payment at the stipulated day really forfeits any farther right, or whether the con- dition requiring such payment is a mere penalty, as to which relief will be given on the payment of the interest, and this though, while the premium remained unpaid, the assured died ? To the proposi- tion thus generally and simply stated, there can, I think, be but one answer ; and, until it was presented in the examination of the case, I had never supposed there could be any doubt but that, from the very nature of the contract of life insurance, the prompt and pimctual payment of the premiums was of the very substance of the contract. An attempt was made, in an early case, to assimilate the condi- tions in a life policy, requiring the payment of the premium, to the condition annexed to a deed conveying real estate. But the court said that the analogy did not hold, and that the Miles applicable to conditions with respect to lands did not apply. " This is a contract of assurance, and must be construed according to the meaning of the parties, expressed in the deed or policy." 12 East, 183, Want, et ai. V. Blunt. Prom the nature of the contract for life insurmnce, it appears to have been considered that, the annual premium not being paid, to authorize a recovery something must have taken place subsequently between the parties, which would amount to a new contract. 12 East, 183. 7 Mees. & Wels. 151, Acei/ v. Fernie. 8 Georgia, MAY, 1857. 641 Robert v. New England Mutual Life Insurance Company. 534, Mut. Life Ins. Co. v. Ruse.^ Of this the subsequent receipt of the premium, and other acts might be proper evidence. 18 Barb. 541, BucUee v. U. S. Ins. A. ^ T. GoP- Ti Eng. Law & Eq. 140, Wing v. Harvey. But, in the absence of any such acts, no case can be found, at law or in equity, in which a recovery was enforced. There is, however, to my mind, a still stronger reason why, as to the ordinary annual premium in a life policy, there can be no relief in case of its non-payment on the day specified. The con- tract is of the description which is termed unilateral. To have it continue from year to year is in the nature of a privilege, secured by the agreement of the company. It may be waived or abandoned by the party, and the company has no right to thrust it upon him without his consent, expressed in the mode and at the time ap- pointed, and the very nature of the business of the company re- quires that they should know, at the time, whether their agreement is to continue. The principle upon which relief has been refused, in the case of a privilege of purchase, fully applies. 1 Russ. & My. 606, Davis v. Thomas. It remains, in the next place, to consider whether the condition in the policy, as to a premium note, stands on the same footing as that in relation to the annual premium ; and it is upon this point of the case alone, as to which I have found it difficult to come to an entirely satisfactory conclusion. On the one hand, there are con- clusive considerations applying to the annual premium, which do not apply to the premium note, particularly that just mentioned, the want of any mutuality of contract, in the one case, and its ap- parent existence in the other. On the other hand, the well under- stood condition that the prompt payment of premiums was neces- Baiy to continue the existence of the policy, and the reasonable conclusion that it was the intent of the parties, as expressed in the clause as to credit, only to waive partially and temporarily this payment, retaining in full force the condition. In other words, providing in such a case as the present, substantially though not in form, for semi-annual premiums. I have considered several collateral questions as tending to throw light on. the principal one, and among others, whether, on the non- payment of the premium note, the company, had they elected so I Ante, 83. « Ante, 406. 41 642 SUPERIOR COURT OF CINCINNATI. Robert v. New England Mutual Life Insurance Company. to do, might have maintained an action for the amount, and so en forced the continuance of the contract until the end of the year. With a view to this question, a case recently decided in Indiana has been called to my attention ; 5 Ind. 170, Ind. Mut. Ins. Co. v. Conner. That was the case of a fire policy, and a premium note had been given. The risk was ended by a sale of the property in- sured. The court held that the consideration of the premium note, up to the date of the sale, was good, and it having been paid in that proportion, there could be no recovery for the balance. This case, it will be readily seen, is not entirely applicable to the pres- ent. There the claiming to recover on the note would not affirm and continue the risk ; here it might have that effect. The princi- ple decided, however, appears to be important and just. It is the principle before adverted to, and in reference to which one of the clauses of the policy appears to have been framed — the one which provides that there can be no recovery back of a premium paid, when the policy has become void. The clause would not enable the company to recover money for a consideration which had failed. Having regard to this principle, it would appear to place the company in this position — either that there was no right to re- cover on the note, (in other words, that the obligation upon the policy and note had both ceased,) or that some act of election must be made, either to affirm or disaffirm the continued existence of the obligation, both on the note and the policy ; and until such act of affirmance or disaffirmance, if made within a reasonable time, the obligation on each side might be considered as still continuing. Now, an act of affirmance or disaffirmance, and particularly the latter, if requisite, could only be performed by a personal demand, or something equivalent. At least, it must require some act to be in some form communicated to the other party. Is there any rea- son to suppose that the rights of the party not in default in this case, and secured by the express provision of the agreement, de- pend on the performance of any such act, and remain in abeyance until it is performed? The well established principles of law impose no such burden. I do not find that the maker of a note is entitled to notice or de- mand in any form. He is " bound to pay," without notice, to whomsoever may happen to be the holder, on the precise day when it becomes due. If he places himself in a situation of hardship, MAY, 1857. 643 Eobert v. New England Mutual Life Insurance Company. from the difficulty of finding out the holder, it is his own fault. 2 Mees. & Wels. 223, Poole v. Tumhridge. When there is a cove- nant to pay a sum of money, in gross, on a certain day, it is incum- bent on the covenantor to seek out the person to be paid, and pay or tender him the money, and for the simple reason that he has contracted so to do. 8 Exch. 689-696, Haldane v. Johnson. And it has been held, that where a condition is annexed, by will, to a devise or bequest, and no one is bound to give notice of such con- dition, the parties must themselves take notice, and perform the condition, in order to avoid a forfeiture. 10 Ves. 246, note. 2 Atk. 617, GJiauncy v. 0-raydon. The question whether the company was bound to do any act in disaffirmance of the contract, will at last be found to depend on the intention of the parties, as shown by the nature of the agreement, and to resolve itself into the general question under consideration. As a general rnle, a condition in a policy not complied with, de- feats it, and no act is required on the part of the company. 1 Phil, on Ins. ch. 9, 410. 2 Denio, 75-84. 7 Wend. 270, Fowler v. .^EtTia Ins. Co. I have found no authority which establishes an exception in the case of a condition as to the non-payment of a premium note. There is one case which would appear to show that there is no exception ; but, being a case at law, it is not con- clusive as to the point under consideration. It was the case of a fire policy issued by a mutual company for five years. Premium notes had been given, upon which assessments were payable thirtj' days after notice ; and the policy provided that in case of the non- payment of any assessment, the policy was thenceforth null and void. An assessment was made and not paid ; and, a loss occurring, the non-payment of the assessment was set up as a defence to the action. Tiie court said : " The parties may insert what conditions they please in a policy, provided there be nothing in them contrary to the criminal law or public policy. This is constantly done in marine policies, and the principle extends to all other policies." 3 Hill, 161, Beadle v. Chenango Co. Mat. Ins. Co. The court, in this case, appear to place a condition as to the payment of premium notes upon the same footing as other conditions usually contained in policies. If the breach of such a condition is a good defence at law, the absence of any case in which relief has been given in equity, upon the p-eneral ground of the jurisdiction to relieve against forfeitures, is 644 SUPERIOE COURT OF CINCINNATI. Robert v. New England Mutual) Life Insurance Company. a forcible objection to the propriety of extending that branch of the jurisdiction to such cases. After much reflection on the subject, there are to my mind serious objections to any such relief in this case upon the principles which appear to have been established upon the subject, and which have been before stated. The contract of life insurance is one of a peculiar nature. The company, for example, is called on, in this case, for the considera- tion of ninety dollars and forty cents, to pay eight thousand dollars. If such demands are enforced, as they undoubtedly may be, when there has been a compliance with the terms of contract, in what mode is the loss to be made up unless by the receipt of premiums, and the judicious investment and use of the money received ? It is very justly said, in the printed form of the application of the company, which is a mutual insurance company, that " the stability and permanency of such a company, depends : 1. Upon an ade^ quate premium being demanded. 2. Upon its being paid, or suffi- ciently secured, so that the company shall not run a risk on lives any further than each one contributes his just proportion to the funds of the company," To carry out and enforce this principle is, in my opinion, the object of the clause which, in effect, makes the continuance of any interest in the funds dependent on a strict compliance with the obligation as assumed, to contribute to them. I cannot resist the conclusion that the prompt payment of the pre- mium is of the substance of the agreement, in a contract of life insurance, and that this principle applies as well to the case of a premium for which, in favor of the assured, a credit has been given, ks to any other. Such being the principle applicable to the case, in my opinion, there is nothing in the fact of a note being given and being re- tained by the company, which forbids its application. On the con- trary, taking the policy and the note together, as one and the same transaction, which it would still more properly be, had the indorse-- ment been made, I think it might be very fairly claimed; that, upon the non-payment of the note, being for a definite part of the cm;' rent annual premium, and the consideration, by the terms of the agreement, ceasing, the company could not have enforced itspayr ment. It has not escaped my obserYg-tion, that the note is made payable to order; but it could not be negotiated, and there could have been no intention that it should, be negotiated, so a? to be. clear of JANUARY, 1868. 645 Ensworth o. New York Life Insurance Company. the condition in the policy upon which its consideration depended. For that consideration, and its connection with the particular pol- icy, is clearly shown on the face of the note, and it could not be taken without full notice. The fact that this statement appears on the note, and that there was, or should have been an indorsement of the receipt of the note upon the policy, is, as has been before suggested, strongly significant to show that it was the intention of the parties to carry out, in substance, the proposition which in fact appears to have been made, that a semi-annual premium should be paid. It has been claimed for the plaintiff, that if, upon the general grounds of the jurisdiction in equity to ■ relieve against forfeiture, there can be no relief, still there are special and peculiar grounds upon which it may be granted. I have already made observations on the point as to notice of the time the note became due, and en- deavored to show that there was no right to require or ixpect no- tice. I do not find, in this case, that there have been on the part of the company any acts of waiver. If the agent had done any acts of that description, no authority for them from the com- pany has been shown. That he had no such authority was noti- fied to the assured by an indorsement at the foot of the policy. Upon a full view of the whole case on its merits, I feel bound to come to the conclusion that there must be a finding for the defend- ant. Judgment for the defendaM. See Mut. Ben. Ins. Co. v. Ruse, ante, 83. JekemIah Ensworth vs. The New York Life Insurance Com- pany. (7 Law Reg. (S. S.) 332. U. S. Circuit Court, Northern District of Ohio, Jan- uary, 1868.) liability of company to agent. — An action was brouglit against an insuirance company by the agent for breach of contract, whereby the company agreed to give the agent a certain percentage on renewals of policies while they continued in force; held^ that the action was sustainable, and that the probable duration of the policies might be proved. An established custom among insurance companies as to an agent's property in policies pro- cured by him may be introduced to e:Lplain such contract. The plaintiff brought his action in a state court, from which the defendant, The New York Life Insurance Company, caused the same to be removed, under the provisions of the act of 1789, to the circuit court of the United States. 646 U. S. CIRCUIT COURT, N. DIST. OF OHIO. Ensworth v. New York Life Insurance Company. The plaintiiF was, in 1861, appointed defendant's agent at Cleveland, Ohio, and an agreement was made by which he was to receive 10 per cent, on first premiums on policies procured by him, and 5 per cent, on the renewal premiums, as long as such policies should remain in force. In February, 1865, the plaintiff was dis- missed from the agency on the ground that he engaged in procur- ing policies for another company, although there was nothing in his agreement, or acceptance of the agency, which specifically forbade his doing this. During his agency he had procured fifty policies, a majority of which were for the lives of the insured, and the re- mainder required premiums to be paid for ten years. Some had expired by forfeiture, or by the death of the insured. Upon tlie termination of the agency the collection of the renewal premiums was taken away from the plaintiff against his consent, and given to his successor. It was shown that the probable expectancy of the life of the* policies so procured would be from eight to thirteen years ; and taking all the contingencies of forfeitures and deaths into consideration, they would remain in force an average of at least ten years. Also, that a custom prevailed among insurance companies and agents, by which agents acquired a property in lists of policies procured by them. Plaintiff claimed that the withdrawal of the collection of such premiums on renewals from him, was a breach of the contract by which he had suffered damages to the amount of $2,337. Wi/man ^ Barlow, for plaintiff, argued that the damages arising from the breach of contract are definite and immediate ; are a sub- ject of mathematical calculation ; that the list of policies procured by the agent has an intrinsic and market value, and that his dam- ages in consequence of the breach are recoverable at once ; and cited 2 Black, 590 ; 31 Vt. 582 ; 3 Parsons, 189. F. J. Bickman ^ S. J- Andrews, for defendant, claimed the forfeiture by the plaintiff of his right to commissions under the contract by misconduct ; that the commissions on renewal premi- ums to be paid in future, could not be considered in measuring damages; and that actions must be brought yearly for the future commissions. Sheeman, J., after reciting the contract, and instructing as to the general weighing of testimony, charged the jury: That if an agent should grossly misconduct himself in the course of his agency, and should prove unfaithful to his trust, he would forfeit JANUARY, 1868. 647 Ensworth t>. New York Life Insurance Company. his claim to his compensation or commission ; but his misconduct and infidelity must be gross and aggravated before such conse- quences would follow : ordinary or slight misconduct would not work a forfeiture of his commissions, although it might be a good cause for a revocation of his agency. In this case the contract is claimed by the plaintiff to be an- en- tire contract, and that there may be an entire breach ; that the damages can be readily ascertained from well known principles de- rived from long-used life tables. On the other side, it is claimed to be a divisible contract; and that the breach can be severed into several parts. I know of no general rule of law that would abso- lutely and definitely determine into which class this particular case would fall, nor can any adjudicated case, similar in all respects to this, be found. If any existed, it would undoubtedly have been found by the learning and research of the counsel. This contract may be said to be a continuing contract ; but whether it is an en- tire or divisible contract depends upon its terms. When a con- tract is made for tlie building of a house, and a party refuses to fulfil, it may be considered an entire contract ; and one refusal may properly be treated as an absolute breach, and one suit may cover all the damages. On the other hand, a contract to deliver the crops of a farm for several successive years is one capable of division, and several actions may be brought each year for the re- fusal to deliver the crops. Again, it has been held and decided that a continuing contract to pay a sum of money by instalments, or the hire of a laborer by the month for a whole year, is a divisible contract, and may be sued on from month to month, or when the instalments become, due and payable. On the other hand, it is well settled that a con- tract to board, clothe, and support old people during their lives, is one entire contract ; and one suit may be brought for the whole damages sustained by a breach. The principle deduced from these cases is, that if a contract is formed of parts which are so far in- separable that if any one is taken away there is a completed and final breach, then all must be included in the damages ; but if the contract is such that it can be separated and divided into one or more distinct and separate breaches, then an action will lie and damages be had for those breaches. If it be found from the evidence that this contract contemplated that the plaintiff should have the absolute right and ownership in U. S. CIRCUIT COURT, N. DIST. OF OHIO. Ensworth v. New York Life Insurance Company. the policies obtained by him, to the extent of five per centum on their renewals during the life of them, and that this right became fixed at the moment and could not be divided from other duties and other matters, then it is one entire contract, and you must find and fix his damages from the evidence given as to the value of such an interest in the policies. But if the contract contem- plated that he was entitled to the commissions on the premiums, only as the policies were renewed from year to year and the pre- miums paid to the life insurance company, then the contract is di- visible, and he can only sue and recover damages after those pre- miums for renewals are paid in. In this case the plaintiff would be entitled to recover the amount of the commissions on the re- newals only down to the day on which he brought his suit. In this connection it may be said that a well-established custom among life insurance companies and their agents, as to the kind and extent of property that agents may possess in the lists of poli- cies they procure, may be considered as explaining the contract as claimed, because the parties are presumed to make the contract in reference to that custom. The verdict rendered was for the plaintifi', damages $1,000, which was the full value of the commissions on the renewal pre- miums to become due during their estimated probable lifetime, afler deducting the costs of collection. PENNSYLVANIA. Hartman vs. Keystone Insurance Company. (21 Penn. State, 466. Supreme Court, 1853.) Occupation. — The insured in liis application stated that his occupation was that of farmer. It was proved that his real business was that of slave-catcher. Held, that the policy was avoided; slave-catching being proved to be a more hazardous employment than farming; Held, also, that the occupation which the insured was bound to disclose to the office was that in which he was engaged at the time he made the application. TesUmony of ea^erts. — The testimony of the company's clerk that he considered slave- catching a dangerous business, and that a risk would not be taken at any premium on the life of one known to be so engaged, is admissible; though there was nothing in the printed rates of premium to show that persons of this class were considered hazardous subjects. Previous declarations of insured. — Declarations of the insured made several months before his application, that he intended to effect an insurance upon his life are inadmissible to rebut evidence of tlie defendant tending to show that the insurance was effected with a view 10 suicide. Sincide. — In a policy conditioned to be void if the " assured die by his own hand," this expression includes self-destruction by taking arsenic. Suicide will avoid a life policy, though there be no condition to that effect in it. This was an action of covenant to August term, 1851, by Daniel Hartman, administrator of the estate of William Callender, deceased, against The Keystone Mutual Life and Health Insurance Company of Harrisburg. It was founded on a policy of insurance granted to William Callender, upon his own life, in the sum of $5,000, and was dated 26th March, 1851, for the period of one year, payable within sixty days after due notice and proof of the death of the insured. The insurance was eiFected in Harrisburg, about noon of the 26th March, 1851. The insured left Harrisburg on the same day and died at his own house in York during the night following at about half-past three o'clock, a. m. The execution of the policy was admitted in the pleadings, also the death and notice to the defendants. The company, in defence, pleaded that at the time of effecting the insurance Callender mis- represented his occupation, stating that he was a farmer ; whereas it was alleged that he was engaged in the business of slave-catch- ing. And it was further alleged that he was also engaged in run- 650 SUPREME COURT OF PENNSYLVANIA. Hartman v. Keystone Insurance Company. ning cars on the railroad. It was also alleged in pleading that the insured had committed suicide. On January 21st, 1852, plea " covenants performed absque hoc." In a notice of special matter notice was given on 2d March, 1852, that the defendants intended offering evidence to show that Callender came to his death by his own hand ; that he committed suicide by taking arsenic : also his written and printed application for insurance, and that in the same he misrepresented his occupa- tion; that he was not a farmer as stated therein, " but was en- gaged in running cars and travelling upon the railroad, and in the still more perilous business of slave-catching." Also that he pur- chased arsenic in Harrisburg on the day of insuring. Also that evidence would be given of the declarations of Callender before and after he obtained the policy, indicating his intent to commit suicide, and that a, post mortem examination was had, and " a large quantity of arsenic found in his stomach, causing his death." On 19th January, 1853, a further notice was given that the defendants would offer in evidence the different rates of premium depending on the occupation of the insured, and that the company would not or did not at any time insure any person engaged in running cars upon the railroad or occupied in such business, at the rate of premium charged in this case. On part of the defendants evidence was given of the post mortem examination of the body of Callender and of his stomach, and of the detection of arsenic in it. Also of his purchase of arsenic in Harrisburg at about eight o'clock, A. m., of the day of his effecting the insurance. It was also proved that Callender, about nine o'clock of that day, inquired of the witness as to the manner of obtaining an insurance ; and that the witness advised the insurance ; that in the course of their conversation Callender inquired the effect as to the policy if the person insured committed suicide. Also other evidence was given of his declarations made before the insurance, in order to show an intention on his part to commit suicide. He left Harris- burg on horseback, about one o'clock of the day of his insuring, for his home at Yprk ; he was ill on the way, and died dm-ing the night next following. To support the issue under the second plea evidence was given in order to show that Callender was concerned in hunting runaway slaves. HARRISBUEG, 1853. 651 Hartman v. Keystone Insurance Company. The application for insurance was given in evidence,. in which it was stated that the applicant was a farmer. Under the third plea evidence was given that Callender had been engaged in running a railroad market car ; but it was testified that about four months before his death he ceased doing so. It was proved, on part of plaintiff, that Callender, when young, was employed on a farm. That he was so engaged till he became a young man. That he never learned any other business than that of farming. That after he married he farmed for a year. Another witness testified that he knew Callender to be farming in 1843 or 1844, and that the witness had made a bargain with him in the fall of 1850 to farm some land on shares ; that he had bought a horse and made arrangements to get another person to plough his com ground in the spring of 1851. It was also tes- tified that in the fall of 1850 Callender had also made arrangements for making brick. In the list of particulars or conditions on which information is required of applicants to this company for insurance, is an inter- rogatory as follows : — " 22. Is the party aware that any untrue or fraudulent allega- tion, made in effecting the proposed assurance, will render the policy void, and that all payments of premium made thereon, and dividend credits, will be forfeited ? " In the declaration which Callender signed, when proposing the insurance, it was stated : " I do hereby agree that the said statement and this declaration shall form and be the basis of the contract between me and the said company, and that if the same be not in all respects true and correctly stated, the policy shall be void," &c. In the policy it is declared to be its true meaning and intent, inter alia, that in case the assured shall, without the consent of the company previously obtained and indorsed upon the policy, be personally employed as an engineer or fireman, in running a loco- motive or steamer, or in the manufacture or transportation of gun- powder, or in case he shall become so far intemperate as seriously to impair his health, or induce delirium tremens, or shall die hy his own hand, in, or in consequence of a duel," &c., " this policy shall be void, null, and of no effect." It was proposed to prove by this witness that the company would not have insured the life of a person employed in running 652 SUPREME COURl? OP PENNSYLVANIA. Hartman v. Keystone Insurance Company. cars on a -railroad or in catching slaves, or if they did, it Would have been at a much higher premium ', and that although they had no printed rules applicable to any but safe lives, their practice was to exact a much higher premium where the risk was great." This was objected to as irrelevant and incompetent; that it was not shown that the class of persons mentioned in the offer was em- braced in the rules or table of premiums of the company ; and that notice had not been given to the plaintiff that the rates of premium would be increased by the fact that the applicant, previpus to Id's application for insurance, had been engaged in running cars, or in slave-catching, the notice extending only to persons then so engaged, and that there was no condition in the policy that the running of cars upon a railroad thereafter, or the catching of slaves thereafter-, should work a forfeiture of the policy. Also, that the testimony offered amounted to no more than the opinion of the witness. The court held it to be competent to prove misrepresentation at the time of effecting the policy, and that the business in which the party was engaged was more dangerous than the one he stated ; that under the notices it was competent to prove the rates of pre- mium charged or which would have been charged upon such occu- pations, and that the company did not insure and would not have insured the lives of persons engaged in running cars on a railfoaS,. The witness stated that the occupation of a farmer was the least dangerous ;• that no rates are published but for occupations deemed safe ; that the business of running cars on railroads is deemed hm- ardous, and an extra premium charged ; that the rate of premium depends on the exposure to danger. He further said, " We would not take a person at any price if it was known that he was engaged in slave-catching. I consider it a much more perilous occupation than farming — liable to be shot down or assassinated. Our rates of premium are based on good lives ; if extra danger as to occupa- tion, or residence, or state of health, exists, an extra premium is charged." The court rejected evidence offered on the part of the plaintiff, that about two years before Callender's death he declared his in- tention to quit the business of running cars, in which he was then engaged, and to have his life insured for the benefit of his wife and children ; and to follow it up by evidence of declarations, made by him on Tarious occasions down to the time of his effecting the in- HARRISBURG, 1853. 653 Hartman v. Keystone Insurance Company. surance, to the effect that he would have his life insured for the benefit of his family as soon as he got money enough, or could spare it from his business, to pay for the policy. This was offered in order to rebut any inference that he procured the policy upon an idea recently conceived with a view to suicide. The evidence was rejected on the alleged ground that it was not competent to show such intention by the declarations of the party ; because it would be his mere statement unsupported by any act which it tended to explain. After the evidence was closed, the plaintiff claimed the right, under the pleadings in the cause, to begin and conclude to the jury. The court determined that the defendants, under the pleadings, had the right to begin and conclude for the following reasons : " The plaintiff had full notice, more than thirty days before the trial, that the pleadings would be so changed as to prevent the necessity of his preparing any evidence, and throw the onus prohandi entirely on the defendants. This alteration has been allowed by the court. In no event would the plaintiff have been called on to make more than mere formal proof, had the pleadings stood as before ; and the fair rule is, that the party who has to be first in proof, and main- tain by evidence the affirmative of the issue, shall have the right to conclude to the jury." At plaintiff's request an exception was sealed to this decision. Peaeson, J., charged the jury. In his answers to two of the points proposed on part of the plaintiff, he said : If the premium would have been increased, or the company would have refused to insure altogether, had the true occupation been given, and a false one was stated, it would be such a falsehood as would vitiate the policy. That it need not be stated in the policy that it shall be void if any false representations are made. That the law requires the party to speak the truth. The conditions necessary to be in- serted are those which are to avoid the policy, if it be violated after it is given. Further : K there was the suppression of a material fact increasing the risk, or which, if disclosed, would have led to the demand of a higher premium, or caused the insurance to be re- fused altogether, it is fatal to the policy, &c. On March 19, 1853, verdict was rendered /or defendmiUi See the opinion of Chief Justice Bi,ack for the substance of the . principal assignments of error. The case was elaborately arguedi by Fisher-, (with whom was - 654 SUPREME COURT OF PENNSYLVANIA. Hartman v. Keystone Insurance Company. Potts,') for the plaintiff in error. It was, inter alia, contended that the misrepresentation, to he material, must be connected with the death of the insured, and that it was not shown that he lost his life when engaged in, or in consequence of having been engaged in the capture of slaves ; the instruction of the court on this sub- ject being, inter alia, " If you believe there was a statement of falsehood, or other suppressign of the truth, in this particular, with intent to defraud, the policy is void, even if Callender did not lose his life when engaged in, or in consequence of having been engaged in the capture of slaves. When such a contract is obtained by fraud, it is void from the beginning." That the misrepresentation to avoid a policy must be material to the risk, reference was made by the counsel to the case of Clarh V. Manufacturers' Insurance Company, 8 How. 235-250. Berryhill ^ Mb Qormich, for the company. It was, inter alia, contended that a false assertion will vitiate a policy of insurance, even though the loss happen in a way not affected by that falsity. Park on Insurance', 286. On true principles of equity and justice, the concealment or misrepresentation by the assured, whether wil- ful or not, of any such facts as might reasonably be supposed to have influenced the underwriter in taking the risk or fixing the rate of premium, will avoid the policy. Arnould on Insurance, vol. 1, 488. Policies on lives are equally vitiated by fraud or false- hood, as those on marine insurance, because they are equally con- tracts of good faith, in which the underwriter, from necessity, must rely on the integrity of the insured for the statement of circum- stances. Park on Insurance, 283, 327, 647, 648. 3 Kent, 282. 2 Duer on Insurance, 381. Ellis on Insurance, 111. If the as- sured conceals anything material for the company to know, the policy is void, and it matters not whether the assured considered it material or not ; and what amounts to a misrepresentation or a material concealment is a question for the jury. 8 B. & C. 586. 3 C. & P. 350. 3 M. & R. 45. The materiality of facts con- cealed or misrepresented is not to be determined by the event, but results solely from their probable influence on the estimated value of the risks at the time they were assumed. The question is not whether the loss that is claimed is attributable in any degree to the risks that were concealed ; but whether, had the facts been known, the underwriter would have subscribed the policy, or would have limited himself to the premium that he received. He is dis- HARRISBURG, 1853. 655 Hartman v. Keystone Insurance Company. charged if the contract is not such as, with a knowledge of the truth, he would have consented to make. Duer on Insurance, vol. 2, 382. The seventeenth and last error relates to the construction of the words of the policy. The intention is manifestly to guard against suicide, and there is but an error in punctuation. If the policy is to be considered silent on the subject of suicide, then on principle the same result must follow, for suicide would be a fraud on the insurance company as clearly as the burning of a house by the party who had it insured would render a fire policy void. Black, C. J. This was covenant on a policy of insurance for the benefit of William Callender, the plaintifF's intestate, upon his own life. The defence set up by the company was that the as- sured had committed suicide, and that when he made application for the insurance he represented his occupation to be that of a farmer, though he was in fact not a farmer but a slave-catcher. It was also pleaded that he had been engaged in running railroad cars, but the evidence did not show it. There are seventeen specifications of error, but some of them are repetitions of others. The material questions raised in the argument may be thus stated. 1. Whether it was erroneous to permit the defendants to amend their pleas as they were amended on the trial. 2. Whether the facts on which the defence based itself could be given in evidence under the pleading and notices. 3. Whether persons who owned stock in the company and were insured by it could give up their policies and sell out their shares for the express purpose of becoming witnesses, and thus make themselves competent to testify for the company. 4. Whether there was evidence of the assured being a slave- catcher which the court could submit to the jury. 5. Whether, if he was a slave-catcher, his declaration that he was a farmer was such a misrepresentation as made the policy void. 6. Whether the occupation of the assured was the trade or busi- ness which he had learned in his youth, or that which he was pur- suing at the date of the, policy. 9. Whether the testimony of the company's clerk, that he con- sidered slave-catching a dangerous business, and that a risk would not be taken at any premium on the life of one known to be so 656 SUPREME COURT OF PENNSYLVANIA. Hartman v. Keystone Insnraoce Companjr. engaged, is admissible ; there being nothing in the printed rates of premium to show that persons of this class were considered hazard- ous lives. 8. Whether the declarations of the assured, several months be- fore his application, that he intended to effect an insurance on his life, were admissible to rebut evidence given by the defendant tending to show that the insurance was effected with a view to suicide. 9. Whether the conditions of the policy must be so construed that the assured might commit suicide by taking poison without thereby making the policy void. We will consider these questions in their order as I have set them down. 1. By the act of 1806, a defendant may amend or change his plea before or during the trial, if it be necessary that he should do so in order to reach the merits of the case. His counsel is gener- ally permitted to judge of this necessity. The court cannot tell whether it is needed or not until they have all the evidence before them. When an amendment is asked for with a view to some unfair advantage, such as throwing on the plaintiff the burden of proving a fact not previously put in issue, and thus exposing him to the danger of defeat or the necessity of a continuance ; or where the object is to get the conclusion of the argument, it ought to be refiised. And because every court is liable to be imposed on in this way, leave to amend ought never to be given unless the motion for it be supported by an affidavit that it will affect the merits of the case, and that the change is not desired for any other reason. But we cannot reverse the judgment for an improper alteration of the plea. I do not find any case in which this has ever been done. A plaintiff may amend his declaration as he pleases, pro- vided only that he does not introduce a new cause of action. If this rule be violated the judgment will be reversed, because we can determine it on a simple inspection of the record. But the right of the defendant to change his plea, is not limited by anything but the discretion of the court, and by that he is held merely to good faith. It is alleged here, and we think with some reason, that this amendment was made to give the defendants the right of address- ing the jury in conclusion. If it was, and the court discovered it HARRTSBURG, 1853. 657 Hartman V. Keystone Insurance Company. in time, the purpose should have been defeated, and the conclusion given to the plaintiff notwithstanding. But neither is it a fatal error that the court permitted the counsel to speak in the wrong order. It is true the English cases say otherwise. There very- much depends on having the last word, and more still on the right to begin. But an English trial bears so little resemblance to an American one, that their decisions on a point like this are entitled to no weight whateve.' with us. 2. It does not seem to us necessary to discuss the next question at much length. The pleas virere sufficient to put in issue the facts proved. The variance allgged between the evidence and the notice is very unsubstantial. A notice of- special matter must state the facts upon which the defendant relies, and not either the evidence by which they are to be estabhshed, or the inferences to be made from them. Here the plaintiff was in substance notified that proof would be given to show that Callender -was insured as a farmer at a premium lower than would be taken from a person who was known to be engaged in running cars ; that he was engaged in running cars, and also in the still more perilous business of slave- catching. From this we think the plaintiff was bound to under- stand that the company would either have declined the risk alto- gether or exacted a higher premium if they had known the assured to be engaged in the business they alleged him to have been fol- lowing. Although, therefore, these notices are not very artistic, nor much to be admired for their clearness, yet there is nothing in them nor out of them -which makes it necessary to reverse the judgment on that account. It is natural and right that we should lean, as we always do, against sustaining an exception which has so little to do with the merits. 3. The witnesses who sold their stock and gave up the policies they had obtained upon their own lives, were competent. The rule in Post v. Avery ^ applies only to persons -who have assigned choses in action on which the recovery would have been for their own use if no assignment had been made. The assignor cannot be a -witness on the trial of an action in which the claim assigned comes directly in controversy. But otherwise he may. Thus a legatee, having sold his legacy, is a competent witness for the exe- cutor, (4 Barr, 373 ;) or a widow, who has parted with her interest in the estate of her husband, may be admitted to testify in favor of 1 5 Watts & S. 509. 42 658 SUPREME COURT OF PENNSYLVANIA. Hartman v. Keystone Insurance Company. his administrator. 7 Barr, 315. A will may be proved by a leg- atee, (1 Ser. & R. 275 ;) or by a devisee, (5 Ser. & R. 315,) if he has released his interest before he is called. It is said these witnesses were interested, because they were still liable to be called on for such instalments yet unpaid on their stock as should be necessary to meet the demands on the company, and the judgment in this case might increase the amount so called for. To say nothing of the remoteness of this interest, there is no proof which shows it to exist. It lies on the objecting party to sustain his objection. If the fact on which it rests be doubtful, the witness is heard. There was no evidence here which showed, or tended to show that the stock had not been fully paid up before the trans- fer. The plaintiff had the examination of the witnesses in his own hands before they were sworn in chief, and if he asked no question on this subject we presume it was because he knew the answer would be adverse to him. They were not parties to the record in any sense which made it necessary to exclude their testimony for that reason. All the arguments against the admissibility of these witnesses are disposed of at once by the decisions of this court in Smith v. The Bank, 5 Ser. & R. 318, and The Bank v. G-reen, 3 Watts, 374, where it was decided that persons who bore exactly the same relation to the parties were, nevertheless, entirely competent. Though these cases are older than Post v. Avery, I think I have shown that their authority is not shaken by it. 4. It was shown on the trial that the assured had not for many years been a farmer ; that he had been at Wilkesbarre in search of fugitives, and had gone to Hagerstown to bargain for the appre- hension of others ; that he was at Harrisburg in pursuit of negroes, whom he spoke of running over to Frederick without a warrant. In short, the evidence is very strong that for some months at least previous to his death he was habitually and very diligently occu- pied at this business. But what is more still to the purpose, he told a person at Hagerstown, a few days before he effected the in- surance, that he was engaged in that business and had a man at Harrisburg who knew all the slaves that ran away from that part of Maryland. This is said to be frivolous, and so insufficient to establish the fact that the court ought not to have permitted a ver- dict to be given on it. We are not of that mind. 5. If the insured, who represented himself to be a farmer, was HARRISBURG, 1853. 659 Hartman v. Keystone Insurance Company. in fact a slave-taker by occupation, and if the business of slave- taking would expose his life to greater danger than farming, it is not possible to escape the conclusion that the policy was thereby rendered void, since, if it was wilfully made, it was a fraud ; and though made ignorantly, or by mistake, it was a warranty by the express terms of the policy. The plaintiff can only recover if the declaration of the assured, upon the faith of which the risk was taken, was strictly true in every material part. It will not do to say that this was immaterial. Every fact is material which in- creases the risk, or which, if disclosed, would have been a fair rea- son for demanding a higher premium. Nor is it of any consequence that the death was not, in fact, produced by a cause connected with the subject of the misrepresentation. One who falsely de- clares himself free from consumption cannot effect a valid insurance on his own life, though he die of cholera. A soldier or a sailor who warrants himself a merchant has a void policy, even though he is not slain in battle or does not perish at sea. In such cases the whole contract is entirely void, as much as if it had never been made, and of course it cannot derive any force or validity from a subsequent event. Clark v. Manufacturers^ Insurance Company, 8 How. 235, cited by the plaintiff for the contrary doctrine, does not sustain it. It is contended that the misrepresentation, to be fatal, must re- late to some fact which would not only increase the risk, but also induce the insurer to demand a higher premium. The authority produced in support of this is the Columbia Insurance Company V. Lawrence, 2 Pet. 25 ; S. C. 10 Peters, 557. The opinion in that case is expressly grounded on the construction of what are called the " fundamental rules " of the company there sued, and has no application to the question here. The law undoubtedly is, that a policy like the present one will be vitiated by the misrepre- sentation of any fact which would increase the risk merely ; and so the general rule was laid down by C. J. Marshall in the case cited. The policy before us provides that it shall be void if the declara- tion be found in any respect untrue. This, of course, does not in- clude inaccuracies which are not material. But anything which increases the risk cannot be immaterial. The questions whether there was any misrepresentation-: whether, if there was, it related to a fact which increased the risk ; or would, if known, have influenced the company to demand a 660 SUPREME COURT OF PENNSYLVANIA. Hartman v. Keystone Insurance Company. higher premium, or to decline the contract altogether, were all submitted to the jury on legal evidence, and with instructions which, in our opinion, are not open to any just exception. 6. The court very properly charged that the occupation of the insured, which his duty required him to disclose, was that business which he was engaged in at the time he made his application. If it meant the trade he learned in his youth, and which he had fol- lowed years before, it would indeed be immaterial whether he told the truth or a falsehood, and it would have been mere folly in the insurers to ask him the question. 7. The testimony of the clerk was rightly admitted. He swore, in substance, that a farmer's occupation was considered the least hazardous ; that an extra premium would be charged for insuring one who was running on railroads ; that no rates were included in the published tables except for occupations deemed safe ; that he considered slave-catching much more hazardous than farming, and that they (the company) would not insure a person at any price who was known to be engaged in it. It would have been wrong to exclude this on the ground that the printed tables (which are the same as those published by other ofHces) contained no reference to the occupations which are deemed extra hazardous. There was a good reason for omitting it. On persons pursuing some of these occupations no risk would be taken at all, and therefore no rates could be affixed to them. Upon others, the extra premium charged would depend so much on the particular circumstances that a rule could not be given. But this omission to say in the printed tables that a slave-catcher would not be insured, is certainly no reason why one who follows that busi- ness might lawfully impose himself on the company as a farmer. The mere opinion of a witness who knows no more about the subject than the jury, and who undertakes to draw from facts al- ready proved deductions which they can make as well as he, is not admissible. An example of this is found in Jefferson Ins. Co. v. Ootheal, 9 Wend. 72, where such evidence was rejected for the soundest reasons. How far the effect which a particular fact ought to have on the risk or the premium may be proved by witnesses conversant with the business, is a vexed question. But though the cases conflict seriously, I think none of them =go so far as to say that one who knows the practice, not only of the particular office, but of insurance offices generally, may not give his opinion of the HARBISBURG, 1853. 661 Hartman v. Keystone Insurance Company- influence whicli a given fact would have had as an element in the contract. Certainly this is the opinion supported by the strongest authority and the best reasons. 8. There is no rule of evidence which would have given the court the slightest excuse for admitting the declaration of the as- sured in favor of his own representative. 9. The conditions of the policy are, that it shall be null and void " if the assured shall die hy his own hand, in, or in consequence of a duel, or by the hands of justice," &c. The plaintiff argues that the first clause here quoted does not embrace a suicide committed by swallowing arsenic. Where parties have put their contract in writing their rights are fixed by it. But the contract is what they meant it to be, and when we can ascertain their meaning from the words they have used, we must give it effect. One rule of inter- pretation is, that we must never attribute an absurd intent if a sensible one can be extracted from the writing. No absurdity could be greater than a stipulation against suicide in a duel. The words " die by his own hand " must, therefore, be disconnected from those which follow. Standing alone they mean any sort of suicide. Besides this, the court was very plainly right in charging that if no such condition had been inserted in the policy, a man who commits suicide is guiltj' of such a fraud upon the insurers of liis life that his representatives cannot recover for that reason alone. Judgment affirmed. Woodward, J., dissented. LowRiE, J., was absent during the argument. Note. — An insurance company required the applicant to give his profession or occupation. He filled up the form thus : " J. T. P., Esq., Saltley Hall, War- wickshire." He lived at Saltley Hall, but he also kept an ironmonger's shop at D., in the same county. The company insured his life by a policy under which the rate of premium was the same as it would have been had he described himself as an ironmonger. The policy was conditioned to be void if the said statement was in any respect untrue, or if there had been any concealment whatever. It was held that the policy was not avoided by the omission of the assured to state that he was an ironmonger. Perrins v. Marine, ^c, Ins. So- ciety, 2 El. & El. 317 : 6 Jur. (N. S.) 69, (1859.) As to the admissibility of the testimony of experts. Bawls v. American Mut. Life Ins. Co., ante, 558, and Fraternal Mut. Life Ins. Co. v. Applecjaie, ante, 629, are in conflict with this case. Suicide. See Eastabrook v. Union Mut. Life Ins. Co., ante, 139, and cases cited. The ruUng that suicide will avoid a policy even if there be no condition to that effect is hardly sustained by authority. In Dormay v. Borradaile, 10 Beav. 335, (I 647,) the insured covenanted "to 662 SUPREME COURT OF PENNSYLVANIA. Philadelphia Life InsuTance Co. v. American Life and Health Insurance Co. * do aid perforin all such acts, matters, and things as should he requisite for con- tinuing and keeping on foot a policy." Held, that this covenant could not he read negatively, as if he had covenanted to do no act whereby it would become void ; and, therefore, that the covenant was not broken by the suicide of the covenantor, whereby the policy became forfeited. No case can be found in which a life policy has been declared void for suicide, unless there has been an express condition to that effect. See Nimick v. Mut. Ben. Life Ins, Co., post, 689, and note. See also Hwn v. Anglo-Avstrfilian, Ifc., Ins. Co. 7 Jur. (N. S.) 673. Philadelphia Life Insurance Company vs. American Life AND Health Insurance Company. (23 Penn. State, 65. Supreme Court, Philadelphia, 1854.) Reinsurance. — A insured the life of B on the 24th of Februaiy, 1851, with the privilege of insurance for another year. On the 31st of May, 1851, the insurer, A, obtained an insjir- ance of the said risk from G, for the term of one year; but the time when the year was to begin or end was not stated. B, the insured, had died in a distant state several w^eks before the second insurance was effected, but his death was unknown at the time to both parties. Held, that the reinsurance must be considered as taking effect on the 24th of February, and not on the 31st of May. This was an action of covenant by The Philadelphia Life Insur- ance Company against The American Life and Health Insurance Company, on a policy issued by the defendants on the 11th Febru- ary, 1851, whereby they insured the life of Sarah Riddle for the sole use and benefit of the plaintiffs, in the sum of $2,000 for the term of five years. N^arr. filed on 21st December, 1852, and on the same day the defendants submitted four special pleas, and fifthly, the plea of set-off. In relation to the latter plea, it appeared that on the 24th Feb- ruary, 1851, the American Life and Health Insurance Company insured the life of Maxwell Nusbaum for $2,500, with the privilege to him of insurance for another year. On the 31st May, 1851, they obtained an insurance of $1,000 of the risk from the Phila- delphia Life Insurance Company, for the term of one year ; but the time when the year was to begin or end was not stated. It was stated in the policy to be its intent and meaning that if the declaration made by the secretary of the American Insurance Com- pany, on the faith of which this second insurance was made, was untrue, the policy was to be void. In the declaration by the said secretary it was declared that he believed Nusbaum's age did not exceed thirty years, and that " he is now in good health." This declaration was dated on the 31st May, 1851. PHILADELPHIA, 1854. 663 Philadelphia Life Insurance Co. v. American Life and Health Insurance Co. By a memorandum on the policy of the same date, signed by the secretary of the Philadelphia company, it was agreed that in consideration of an extra premium of $30, included in the premium on this policy, the party insured had permission to go to California. It afterwards appeared that Nusbaum was then dead, having lost his life in the fire which took place in California on the 4th or 5th May, 1851. , The material question was whether the risk under the second insurance commenced from its date, or from the date of the first insurance. In the application of Nusbaum for insurance, his name was stated as Maxwell Nusbaum, merchant, Harrisburg, to California. In the proposal by the American Insurance Company, he was stated as going to California. At the time of the second insurance it was known to both companies that Nusbaum had left Philadel- phia for California, but neither of them knew that he was then dead. His death was not known to them till some weeks after the second policy was made. The American Insurance Company then claimed the $1,000 under the second insurance, as an off-set to the claim of the plaintiffs on account of the insurance of the life of Sarah Riddle. The secretary of the American Insurance Company was examined on part of the defendants, under objection, and stated that they had taken the risk on the life of Nusbaum, and that he inquired of the secretary of the other company if they would take half of it ; or rather he offered him part of the risk on the policy. He agreed to take it, and a copy of Nusbaum's application to the American was made out, and the plaintiffs issued to them a policy of $1,000 of the $2,600, and for which the company, which was defendant, paid to the plaintiffs two fifths of the whole premium received from Nusbaum. He said that no objection was made to the date of the plaintiffs' policy to the defendants. The jury found for plaintiffs $2,053,33 ; and under the plea of set-off, they found for the defendants $1,095, subject to the opinion of the court, and afterwards judgment was entered for the plaintiffs for $958.33. The material assignment was the instruction to find for defend- ants under the plea of set-off. Gibbons, for plaintiffs in error. It was contended that the Amer- ican Insurance Company did not sustain any loss during the time within which the pohcy operated ; that the event insured against did not happen within that time. 664 SUPREME COURT OF PENNSYLVANIA. Philadelphia Life Insurance Co. v. American Life and Health Insurance Co. T. S. Smith ^ Meredith, contra. A risk may commence be- fore the policy is subscribed, where it is not known by the parties whether the property insured is in safety, (1 Phillips on Ins. 163 ;) or that the life insured against is not in existence. 5 Burr. 2802. To render the policy in this case void, it should be shown that the secretary did not believe his own statement. 2 Marshall on Ins. 772. Cowp. 785. 1 Phillips, 83. The supposition that Nusbaum was living was not the basis of the contract, which was the uncer- tainty of the risk of the defendants. LowEiE, J. This controversy turns on a set-oflp made by the defendants to the plaintiflFs' claim, being the amount of a policy of reinsurance by the plaintiffs of 11,000, on a risk of $2,500 taken by the defendants on the lif^ of Maxwell Nusbaum, of Harrisburg, Pennsylvania, and going to Cahfornia. The insurance of the de- fendants was dated 24th February, 1851, for one year, with the privilege of another at the same rate. The reinsurance by the plaintiffs was dated 31st May, 1851, and was for one year simply. The loss had actually occurred by the death of Nusbaum in Cali- fornia on the 4th May, and hence arises the difficulty, the plaintifls insisting that their risk never attached, and the defendants, that from the very nature of the transaction, the reinsurance covers the whole time embraced in the insurance. How ought the parties to have understood the transaction ? This is a question of interpretation, and, in order to answer it intelli- gently, we must place ourselves as nearly as possible in the circum- stances under which the contract of reinsurance was made. 3 State R. 254. The writing by itself would be construed as a con- tract running one year from its date. Do the circumstances require a different construction ? It is very important to notice that we are compelled to look outside of the policy to ascertain that this is' a case of reinsurance, for inside of it there is no word to indicate this fact, though it con- stitutes one of its most important characteristics. This is one of those slovenly consequences of the use of printed blanks, which have caused those great inconveniences and the contracts thus ex- ecuted to be so much suspected. Being a reinsurance, it is a con- tract to take a share of defendants' risk. This necessarily raises the presumption, and the evidence proves it, that the plaintiffs knew all the terms of that risk, and the premium paid for it. They knew that it was to run for one year from the 24th February, ana PHILADELPHIA, 1856. 665 American Life and Health Insurance Company v, Robertshaw. they reinsured for one year. Does this mean from the 31st May ? It is unreasonable to suppose so. The defendants could not have intended, and the plaintiffs could not understand them as intending to be insured for three months beyond their interest. It is said that the contingent liability of the defendants to become insurers for another year, was an insurable interest. Suppose it so ; still, being a contingent risk, it would not be taken as a certain one. It would not be taken as a matter of course, and without special treaty as this one was. Moreover, the premium was meas- ured by the certain, and not by the contingent risk. We cannot thus make up the year insured against in the intention of the par- ties. The contract and the circumstances express themselves in seeming contradiction of each other, and our duty is to make them harmonize by construction. We cannot alter the facts to suit an inference drawn from the mere words of the policy, but we must suit the inference to the facts. Without the circumstances we would draw one inference as to the intention of the parties ; with them we must draw a different one. The fact that the reinsurance was for one year on a risk running for one year from the 24th February, and in consideration of a proportional share of the pre- mium as from that date, settles the question, and starts the year of the reinsurance from that date, and all the representations must be read as of the same date ; and this makes the time of the loss immaterial. See Ghouteaux v. Leech, 18 State, 224. Judgment affirmed. Amekican Life and Health Insurance Company vs. RoberT' SHAW. (26 Penn. State, 189. Supreme Court, 1856.) Insurable interest. — A debtor may insure his life in favor of his creditor in a sum exceed- ing the amount of the debt, the balance to inure to the benefit of his widow ; and the office will be held to the full sum insured. ' This was an action of covenant upon a policy of insurance in the name of the plaintiff, Joseph Robertshaw, on the life of William Dyson, for |1000. The plaintiff was a creditor of William Dyson to the amount of 1140, but it appeared incontestibly' in evidence, that Dyson himself effected the insurance on his own life, and paid the premium with his own money, and that his intention was not SUPREME COURT OF PENNSYLVANIA. American Life and Health Insurance Company v. Robertshaw. merely to secure the plaintiff, but that it should inure in case of loss to the benefit of his wife ; and there was evidence that this was stated in the presence and hearing of the officers of the insur- ance company. No questions were asked by them, but, in conform- ity with his directions, they drew the policy in the name of the plaintiff, Robertshaw. A loss having occurred within the period stipulated, the insur- ance company now resist the recovery on the grounds, 1. That their contract was with Robertshaw. 2. He cannot recover be- yond his interest. 3. The declaration attached to the application, signed by Dyson for Robertshaw, to the effect that Robertshaw was interested to the full amount in the life of Dyson, was false, and avoids the policy. The court below charged the jury that the defence set up was not available. The jury found for the plaintiff the whole amount of the policy. The defendants moved for a new trial. Upon this motion, his honor, Sharswood, P. J., after stating the facts and the points of defence, delivered the following opinion : " It is an ungracious defence, and ought not to prevail, unless on legal grounds it is insurmountable. "It is clear that a man may bona fide insure his own life, and direct the insurance money, in case of loss, to be paid to another as trustee. " Mr. Phillips remarks that there may be ground for doubt, where the assured merely lends his name to another to make a gaming policy upon his life. But every life policy made by the assured on his own life, is made for the benefit of others ; and if a party so insures his life bona fide for the benefit of others, it seems not to be very material whether he pay the premium with his own money not borrowed, or borrows money for the purpose. 1 Phil- lips, 149. These remarks are a criticism on the case of Malford v. Kymer, 10 B. & C. 724, in which the king's bench, under the controlling words of the Stat, of 14 G. II. ch. 48, held, that a pol- icy by a father in his own name on the life of his son, in which he had no pecuniaiy interest, was void. ' If a father,' says Bailey, J., ' wishing to give his son some property to dispose of, make an insurance on his son's life in his (the son'?) name, not for his (the father's) own benefit, but for the benefit of his son, there is no law to prevent his doing so.' PHILADELPHIA, 1856. 667 American Life and Health Insurance Company v. Robertshaw. " It has been since held in England by the court of chancery, that the statute does not prohibit a policy of life insurance from being granted to one person in trust for another, nor does the ef- fecting of such an insurance in any way contravene the policy of the statute. Callett v. Morrison, 12 Eng. Law & Eq. 171. We have no such statute. It is on the principles of public policy and good morals alone that our courts avoid wagering contracts. A man may make any other contract bona fide in the name of a friend, as a trustee for himself, or for such other lawful purposes as he chooses. Why may he not, for an honest purpose, use the name of a friend as a trustee for his family in the case of a contract of insurance ? In the English case referred to last, it was decided that if upon a proposal and agreement for a life insurance a policy be drawn up by the insurance office in a form which differs from the terms of the agreement, and varies the rights of the parties as- sured, equity will interfere and deal with the case on the footing of the agreement, and not on that of the policy. That was in effect the case here, and it was so put to the jury. The contract was really made with Dyson ; he insured his own life — the considera- tion moved from him — the company knew they were dealing with Dyson, they asked no questions — there was no fraud, misrepresen- tation, or concealment. Had the insurance been effected by Rob- ertshaw, without any mention of the interest of any other, no doubt the objection would have been valid. It is true that in ma- rine insurance, if a policy is effected by A, without saying as agent or for whom it may concern, the policy is only avoidable to the ex- tent of the interest of A in the subject matter. There is good reason for that ; it is a representation that he is only interested in the policy. But it remains to be decided that if B, the owner of a ship, applies to an insurance company, pays the premium himself, and requests the company to make out the policy in the name of A, that such a policy is void. For myself, I can see no good rea- son why a man having an insurable interest may not insure it, and present the policy as a gift to a friend ; and if such an agreement to give be made at the very time of the contract, why may not the policy be made at once in the name of the donee, the whole trans- action being bona fide — no fraud on the company intended ? " If so, it is a full answer to the third ground of objection made by the defendants to a recovery in this case. If Dyson at the time of the contract constituted Robertshaw his trustee to receive the 668 SUPREME COURT OF PENNSYLVANIA. Myers v. Keystone Mutual Life Insurance Company. money in trust, first to pay the debt he owed him, and, as to the balance, to hold as trustee for Dyson's widow, then the declara- tion was true ; he had an interest in Dyson's life to the full amount insured — the same interest which Dyson himself had. "Mule refused." The defendants then sued out this writ of error, and raised by their specifications the same points made in the court below. T. S. Smith, for plaintiff' in error. WooDWAED, J. The judgment in this case is affirmed, fojf the reasons contained in the opinion of Judge Sharswood, on the mo- tion for a new trial. Judgment affirmed. Mtees vs. The Keystone Mutual Life Insurance Com- pany. (27 Penn. State, 268. Supreme Court, 1856.) Delivery. — The deceased agreed with the defendants' agents upon an insurance on his life, upon terms subject to ratification by the company, and the application was forwarded. The company made out a policy differing in terms from the one agreed upon, and their agents sent it to the applicant with a request to return it if he did not wish to comply with the new terms. He retained the policy without complying with the requirement. Held, that the delivery was conditional, and that there could be no recovery upon the policy by reason of the non-compliance with its terms. Comitersigning. — It seems that a provision that the policy shall be countersigned by the agent need not be complied with. This was an action of debt brought by Margaret H. Myers, widow of Dr. John J. Myers, against The Keystone Mutual Life Insurance Company, to recover f 5,000 on a policy of insurance, alleged to have been issued on the 4th April, 1854, for seven years, on the life of her husband for her use. Dr. Myers, in November, 1853, took a risk on his life for $2,000, and paid the first semi-annual premium thereon of $19.95. Before the expiration of the period for which the premium had been paid on this policy, he concluded to increase the risk, and to this end applied to Russell and Oakes, agents of the defendants at Pitts- burg, for a seven years' policy for $5,000, The terms were agreed on between the agents and Dr. Myers. The annual premium was to be $101, (including the price of a new policy,) one half in cash, and the other half in a premium note at 12 months with interest. The old policy was to be surrendered when the new one was issued, and one half of the amount of the first year's premium, deducting PHILADELPHIA, 1856. 669 Myers v. Keystone Mutual Life Insui'ance Company. what was supposed to be the pro rata share of the premium for the unexpired term of the old poHcy, was paid in cash by Dr. Myers, and his note at 12 months, with interest, given for the res- idue. The application was to be approved by defendants and the risk then to commence. On the 22d March Dr. Myers was notified by Russell and Oakes that the rules of the company required a reexamination by a physician, and they transmitted to him a blank for that purpose. • This reexamination was had and sent to defend- ants. On the 4th April the policy on which this suit was brought was sent by defendants to Russell and Oakes, and they, without countersigning it as required by the policy, forwarded it to Dr. Myers at Cincinnati. He was informed by them at the same time, that they had " made an error in the terms of a seven year policy, which requires the whole of the premium to be paid in cash ; " and that if he did not wish to comply with these terms to return the policy. The premium was payable semi-annually. In the letter of Russell and Oakes to Dr. Myers, the following language was used : " Your first payment is 149.75^ April 4th, from which is to be deducted one month's upon your former policy or one sixth of your payment upon said policy, which is 13. 32^, leaving for your first payment |46.42i, upon which you have paid us $43.85. The balance yet due us on first payment is f 2.57^. If you can con- veniently retain this policy, you will please mail the former one to us for the reasons above stated. Cash policies are the most profit- able, and if you consider the matter jou will agree with us ; yet, Doctor, do not hesitate to return this policy if you do not wish to comply with the requirements of the seven year rates or rules, and we will refund to you the amount paid us. But we hope you will retain this policy." No reply was ever received from Dr. Myers. He did not pay the balance |2.67i, nor did it appear that he re- turned the first policy, although it was in evidence that search had been made among his papers after death, and that it could not be found. He retained the second policy and immediately before his death handed it to his executor, as of importance to his wife. He died on the 24th August, 1854. On the trial, the defendants resisted payment, because : 1. The action, if maintainable at all, will lie only in the name of the personal representatives of the deceased, and not at the suit of his widow, 2. The instrument declared on is not a perfect, valid, and bind- 670 SUPREME COURT OF PENNSYLVANIA. Myers «. Keystone Mutual Life Insurance Company. ing contract, and final agreement between the parties therein named, for the reasons, — (1.) It is not countersigned by Russell and Oakes, the agents at Pittsburg, although, on the face thereof, it is expressly declared that it shall not be binding until countersigned by them. (2.) The provision declaring the policy not to be binding until countersigned by the agents, was not waived by the company as shown by the evidence, arifl the agents themselves had no authority to waive it. (3.) The whole amount of the semi-annual premium was not paid, and the instrument could not take effect as a policy, and be- come a perfect, valid, and binding contract, so long as any part thereof remained unpaid. (4.) The agents of the company had no authority to deliver the policy until the full amount of the annual premium was first paid ; and their act in mailing the policy, if intended as an absolute de- livery thereof, being wholly unauthorized, and never having been ratified, does not bind the company, and therefore no action can be maintained on the said instrument. The foregoing positions were sustained by the court, and the jury, under instruction, rendered a verdict in favor of defendants. The errors assigned by plaintiff were to the answers of the court to the points presented, relating to and embracing the positions cited above. Shaler ^ Stanton, and Hepburn, for plaintiff in error. WilUams, for defendants in error. LowKiE, J. Though we incline to think that this action is rightly brought in the name of the person for whose benefit the in- surance was effected, yet, under the view that we take of the case, this is not material. We incline also to the opinion that, notwithstanding the express terms of the policy, the countersigning by the agents is not, under all circumstances, essential. On an equitable interpretation of the whole transaction, it may become the duty of the court to dispense with a portion of the forms of contract, if it can find any reliable substitute for them, on the principle that cures defective execution of powers, where the intention to execute is sufficiently plain. This contract was to be complete when delivered by the agents of the defendants, and we regard the countersigning by the agents as the appointed evidence of its proper delivery. If we do not PHILADELPHIA, 1856. 671 Myers v. Keystone Mutual Life Insurance Company. find this evidence, we must treat it as not delivered, unless we have other evidence which we can regard as equivalent. It seems to us that a final delivery by letter, being also by writing, may be treated as equivalent : and this brings us to the question, was there such a delivery ? If not, of course there was no perfect contract be- tween the parties. At this . point millions of money may depend upon a farthing or a signature or a word ; for so long as the parties differ by a farthing, the contract is imperfect and establishes no re- lation. Was there a final delivery ? Here we must refer to the letter accompanying the policy. It shows that the company had not accepted the terms which had been arranged between Myers and the agents ; but had prepared a policy on different terms. Of course, therefore, Myers had as yet made no contract. His pro- posal was not accepted, but another proposal in the shape of a new policy was sent to him, and his acceptance of this proposal, accord- ing to its terms, was essential in order to give it the character of a contract. He was told in the letter that the new terms " require the whole of the premium to be paid in cash, which if you don't wish to comply with, you can return this policy, and we will return to you the amount paid us with your notes ; " and he was further informed that there was " a balance yet due on the first payment of |2.57i." This, therefore, was very plainly a conditional, and not final de- livery ; a proposal and not a contract. It was to be a final delivery as a contract if Myers agreed to it, accepted the new terms, re- turned the old policy, and paid the balance ; and we have no evi- dence that he did either, except by his retention of the new policy, which certainly is no evidence of the return of the old one or of the payment of the balance, and cannot possibly be called an ac- ceptance so long as any single thing remained open for dispute or treaty, or anything to be done by him remained undone. The learned judge of the district court was therefore right in declaring in substance'that there was no binding delivery of the policy, and this affirms the judgment without the other points, and we must not discuss them. Jvdgment affirmed. See Sheldon v. Connecticut Mutual Life Ins. Co., ante, 27, and cases cited 672 SUPREME COURT OF PENNSYLVANIA. Appeal of Elliott's Executors. Clay's Appeal. Appeal of Elliott's Executoks. Clay's Appeal. (50 Penn. State, 75. Supreme Court, 1865.) Fraudulent assignment of life poUcy. — Assignment by the assured, an insolvent debtor, of life policies in trust for the benefit of his wife, without the knowledge of the creditors, held fraudulent and void as to them.. This was an appeal by Eliza T. Elliott and J. Thomas Elliott, executors of the last will and testament of Isaac Elliott, deceased, from the decree of the orphans' court of Philadelphia County, confirming the auditor's report In re Isaac Elliott's Estate, and dismissing their exceptions thereto. The appellants filed their account, which was referred to an auditor by the court below. There were two questions discussed before that officer, and decided in his report : 1st. As to the com- missions of the executors, in which he reduced their claim by $569.63. 2d. As to surcharging the accountants with the amounts of three policies effected by Isaac Elliott upon his life, on which point he surcharged them with one policy, and declined surcharging them with the other two. The executors assigned as error this reduction of their commis- sions, and the surcharging of $10,000 for the one life policy. The case was this : Isaac Elliott, a conveyancer in Philadelphia, died in November, 1859, when it was discovered that his estate was insolvent. Prior to his death he had effected four policies of in- surance upon his life, each in $10,000. The companies w|io issued the policies were the International, the Manhattan, the New Eng- land, and the Mutual. The three first mentioned policies were assigned by Mr. Elliott to a trustee for his wife, the last was not ; the executors collected the amount of this policy, and carried it into their account. The auditor having, at the request of the creditors of deceased, sur- charged the accountants with amount of one policy, and declined surcharging them with the other two, the executors complained of the first branch of his decision, and the creditors of the second. The facts connected with the assignments are as follows : On 12th February, 1859, Isaac Elliott effected the insurance with the International Company. The terms of this policy ex- PHILADELPHIA, 1865. 673 Appeal of Elliott's Executors^ Clay's Appeal. pressly provide that the insured " may assign to whomsoever he pleases, without the knowledge or assent of the society." On 10th September, 1859, Mr. Elliott indorsed upon this policy an assign- ment of all right, title, and interest therein, to J. Thomas Elliott, " in trust for the only use and benefit of my wife, Eliza T. Elliott, her heirs and assigns." On 2d March, 1859, he effected the insurance with the Manhat- tan Company ; and on 10th September, 1859, he made a similar indorsement on this policy. On the 3d March, 1859, he effected an insuranc» with the New England Company, and on the 10th September, 1859, he also in- dorsed a similar assignment on this policy. The two last mentioned companies have not waived notice of assignment, (as had been done by the International,) and Mr. Elliott gave them written no- tice of his assignments. The policy of the New England Company stipulated that an assignment should be void, unless assented to in writing by the company, and this assent was duly given. These three policies were assigned on the same day to a trustee for his wife, and remained together in his fire-proof, where they were found after his death. The moneys were collected upon all three policies, by the trustees named in the assignments, and in- vested in the individual name of the cestui que trust. The auditor ruled that the transfer of the International policy was invalid, because no notice had been given to the company, and because the policy was found among Elliott's papers after his decease. Another ground of exception was, as to the commissions of the executors. They debited themselves with the amount of cash re- ceived by them, and with the proceeds of real estate sold under order of the orphans' court, for payment of debts. The commis- sion (three per cent.) was charged upon the gross sales of the real estate, some of which were deducted by the purchaser, who was a mortgage holder, and some of which were paid into court. The auditor allowed only one per cent, upon the amount of the mort- gage debt allowed against the purchase money. The executors complained of this reduction. A number of exceptions were filed to the auditor's report, all of which were overruled by him. The court below confirmed the report for the reasons assigned by the auditor, and dismissed the exceptions. This appeal was then 43 674 SUPREME COURT OF PENNSYLVANIA. Appeal of Elliott'f Executors. Clay's Appeal- taken by the accountants, who averred that the learned court be- low erred, — 1. In affirming the report of the auditor so far as concerns the reduction of the executors' commissions. 2. In not reversing that portion of the report which disallows $596.63 of the executors' commissions. 3. In affirming said report so far as concerns the surcharge of the executors with the amount of the policy of the International Life Assurance Company, namely, $9,676. 4. In not reversing that portion of the report which surcharges the accountants with the amount paid by the International Life Assurance Company (f 9,676) on their policy upon Isaac EUiott's life. 5. In not reversing that portion of the report which surcharges them with interest on the amount received by the widow under a claim of right, fl,719. An appeal was also entered by Joseph A. Clay, Esq., adminis- trator of Elizabeth Ruth, who complained that the court below erred, — 1. In confirming the report of the auditor refusing to surcharge the executors with the sums received from the Manhattan Life In- surance Company of New York, and the New England Mutual Life Insurance Company, upon their respective policies of insur- ance on the life of the testator, with interest from the times of the receipt. 2. In not overruling the report of the auditor affirming the vahdity of the assignments of the said policies of life insurances, and in not ruling that such assignments were fraudulent and void as to creditors of the testator. 8. In not ruling that the attempted gifts of the said pbhcies of life insurance were inchoate and incomplete, and therefore void as to creditors of the testator. 4. In confirming the report of the auditor allowing a commission of three per cent, to the executors, on receipts from sales of real estate, and a commission of one per cent, on the amount of the mortgage. 0. G-uillou, for the accountants. On the question of commis- sions he cited John Miller's Estate, 1 Ashmead, 323 ; Pv,sey v. Clemson, 9 S. & R. 204 ; Walker's Estate, Idem, 223 ; Steven- son's Estate, 4 Whart. 98 ; Nathans v. Morris, 4 Idem, 389 • Shmk's Appeal, 2 Barr, 304; Bobb's Appeal, 6 Wright, 45. PHILADELPHIA, 1865. 675 Appeal of Elliott's Executors. Clay's Appeal. As to the transfer of the policies of insurance, he argued, — 1. That it is the poHcy of the law to encourage the efl'ecting of insurance on a father's life in favor of his widow and orphans, thereby providing for their maintenance and so distributing the burden of their support, that it may bear insensibly among many stockholders. 2. That a husband who is unable to pay his debts is not bound by the laws to forego such insurance, thereby leaving his family to become paupers and chargeable to the community. 3. That he may effect an insurance on his life for the benefit of those whom the law holds him bound to support so long as he hves, thus permitting him to " furnish a substitute," which may to some extent discharge a duty that the law required him to perform so long as earthly laws could reach him. 4. That in effecting such insurance, his designation of a trustee for his widow and children will be respected, if not in preference to, at least as favorably as a direct appointment in favor of his wife without such intervention ; and this, too, whether the latter be made by a written order or assignment, indorsed upon the policy, or incorporated into the body of the instrument on his request, made at the time of effecting insurance ; and 5. That the Christian spirit embodied into our law which pre- vents creditors from attaching the wages of a debtor, will also pre- vent their seizing the only possible substitute for his life in perform- ing the duty of keeping the family from becoming a public burden ; citing and relying, as to the assignment, on Nesmith v. Drum, 8 W. & S. 9 ; Ashmead v. Borie, 10 Barr, 154 ; Vandyke v. Christ, 7 W. & S. 373; Sims v. Thomas, 12 Ad. & E. 536; Dalby v. Life . Ins. Oo. 28 E. C. L. R.^ 365 ; Law v. London Life Ins. Co. 1 Kay & Johns. 228 ; Trenton Mutual v. Johnson, 4 Zabris- kie, 576 ; Holdship v. Patterson, 7 Watts, 547 ; Ashurst v. Given, 5 W. & S. 830 ; Fisher v. Tai/lor, 2 Rawle, 33 ; Vaux v. Farke, 7 W. & S. 25 : and as to delivery, Chess v. Chess, 1 Penn. 32 ; Hannah v. Swarner, 8 Watts, 9 ; Money v. Tobias, 12 Johns. 422 ; Verplanck v. Sterry, Idem, 536 ; Blight v. Schenck, 10 Barr, 289 ; Arrison v. Sarmstead, 2 Idem, 191. That no delivery was necessary, this being in the nature of a declaration of trust : Duffy v. Ins. Co. 8 W. & S. 412 ; Stickney v. Barman, 2 Barr, 68 ; Coates v. Q-erlach, 8 Wright, 43 ; Carpenter v. Mayer, 5 Watts, 483 ; Northey v. Northey, 2 Atk. 77 ; and that 1 15 O 676 SUPREME COURT OF PENNSYLVANIA. Appeal of Elliott's E:^ecutors. Clay's Appeal. the transfer could not be impeached by executors: Twelves v Twelves, 3 Whart. 485; Vandyke v. Christ, 7 W. & S. 373; Weber v. Samuel, 7 Barr, 499. H. 0. McMurtie ^ IE. Spencer Miller, for Mrs. Whitman, a creditor of deceased, (with whom was Joseph A. Clay, for the estate of Mrs. Ruth,) contended: 1. That the transfer was a fraud upon creditors. It was a gift by a man wholly i^^solvent. Here is a man who has taken a sum of money which he possessed, and has bougljjt with it a policy on his life. This is a piece of property. Suppose it were a policy of insurance against fire. Suppose Mr. Elliott, as a creditor, had insured the life of a debtor, and assigned tjhis to his wife. There is nothing in the nature of the property which enar bles an insolvent debtor to give it away. It may be argued that this is a species of property that a creditor could not touch. What foundation is there for such an allegation ? A life policy passes to assignees in bankruptcy, (^Schondler v. Wace, 1 Camp. 487,) and their title will cut out a subsequent assignment. And notice to in- surers is necessary to prevent such a title from vesting in assignees. Williams v. Thrope, Sim. Cli. 257. West v. Reid, 2 Hare, 249. Ex parte Price, 13 L. J. Bank. N. S. 15. In re Styan,, 1 Phillips' Ch. 105. What is to forbid a creditor from laying an attach- ment in the hands of the insurer, and obtaining the avails of it when the debtor dies? But if there were technical difficulties in the way of an attachment, equity would interfere in the cred- itor's favor, as in case of a legacy, prior to our act allowing it to be attached. 2. There was no delivery of the instrument transfgrring the policy in the International. There is no evidence that the fact of such transfer was communicated to any one. It was in proof that the trustee did not know of the transfer. There is no pretence that value was paid ; but the transaction was purely voluntary. Under these circumstances, the authorities all maintain this ruling. The distinction is between a declaration of trust and a gift, or transfer. Ex parte Pye, 18 Ves. 140. A gift, if complete, passes the property. If the subject be a chattel, delivery is essential ; without it, all declarations are but evidence of an intent unexe- cuted. If it be stock or a chose in action, and is assignable at law, there must be a complete transfer, so as to pass the title. If not assignable at law, there must be such a perfected transfer as would pass the right at law if assignable. Where the transfer is by way of PHILADELPHIA, 1865. 677 Appeal of Elliott's Executors. Clay's Appeal. assignment, there being no binding contract, there must be delivery of the evidences, or of the instrument of transfer. Want of delivery of an instrument purporting to be an assignment, is as fatal in equity as at law. Retention of the instrument, if once complete by de- livery, is immaterial ; but the factum of delivery is as essential to its existence as an assignment, as to a deed. Nor can an incom ■ plete assignment operate as a declaration of trust. It is only where assignments cannot operate at law that equity enforces them, upon the maxim ut res magis valeat, as a declaration of trust, because the equitable or beneficial right had thereby passed. Mark v. Ket- tlewell, 1 Phil. 347. Neither can it operate as a declaration of trust, because it is not binding as a contract at law or in equity. See Searle v. Law, 15 Sim. 95 j Antrobus v. Smith, 12 Ves. 39. Nor can it operate as a declaration of a trust any more than would any other instrument intended to evidence a gift, but incapable of passing the property. See Fletcher v. Fletcher, 4 Hare, 67 ; Uniacke v. Criles, 2 Molloy, 257 ; Edwards v. Jones, 1 M. & Cr. 226 ; Fortescue v. Barnett, 3 M. & K. 36. Had the executor of Mr. Elliott been a stranger and taken possession of the policy, Mrs. Elliott and her trustee must have asked the aid of the court, when she would have been met by the want of delivery, and hence the imperfectness of her title. 3. Commissions. It is submitted that the allowance was ample ; the estate sold was but an equity of redemption ; on the proceeds of that she received three per cent. : upon what really formed no part of the estate she was allowed one. Read, J. Policies of assurance against fire and against marine risks, are both properly contracts of indemnity, the insurer engag- ing to make good, within certain limited amounts, the losses sus- tained by the insured in buildings, ships, and effects. But " the contract commonly called life assurance, when propei-ly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life ; the amount of the annuity being calculated, in the first instance, according to the probable duration of the life ; and when once fixed it is constant and invariable. The stipulated amount of annuity is to be uniformly paid, on one side, and the sum to be paid in the event of death is always (except where bonuses have been given by prosperous offices) the same on th^ other. This species of insurance in no way resem bles a contract 678 SUPREME COURT OF PENNSYLVANIA. , Appeal of Elliott's Executors. Clay's Appeal. of indemnity." This is the measured language of Baron Parke, novv Lord Wensleydale, a very learned judge, in dehvering the unanimous opinion of the court of exchequer chamber, in Dalhy V. The India and London lAfe Assurance Company, on the 2d December, 1854, reversing and overruling the decision in Grodsall V. Boldero, [9 East, 72,] 15 Com. Bench, 365, (80 E. C. L. R.) In this case, which is now the settled law of England, it was held that independent of the' act of 14 Geo. III. c. 48., as to the assur- ances of lives, all contracts for wager policies, and wagers which were not contrary to the policy of the law, were legal contracts at common law ; and that under that statute, if there was an interest at the inception of the policy, it was not necessary that it should exist when it became payable. Life assurance, as by a Gallicism it is called in England, com- menced there upwards of a century and a half ago, and in 1859 there were one hundred and fifty-nine companies, comprising pro- prietary companies based upon a paid-up or promised capital, for which interest is paid upon shares ; mutual societies founded upon the asserted sufficiency of the premium fund, and mixed companies proceeding upon a combination of both principles. As a broad principle, large companies can afford to be generous, and the Equita- ble boasts that it has never " but in two instances disputed a claim out of its numerous and vast engagements," and that is remarkable for a society that has paid away in all forms twenty-nine millions sterling, or one hundred and forty-five millions of dollars. Policies in good offices, after five or seven years' standing, are always sale- able, and a considerable number are sold by auction every year. " We noticed," says the " Edinburgh Review," of January, 1859, "the advertisement of a sale in Dublin of twenty-seven policies of assurance in various offices. It is worthy of remark that they generally find purchasers at fair values when effected in the first class offices. The offices themselves will state the value of their own policies for a fee ; and the common practice is to obtain the office value, and that of an independent actuaiy, before the The business of life insurance, as we call it, has been largely extended within the last few years in the United States, by com- panies both foreign and domestic. In the case before us the dece- dent effected four policies on his life, in four distinct companies, each in $10,000 One of these was not assigned, and its proceeds & PHILADELPHIA, 1865. 679 Appeal of Elliott's Executors. Clay's Appeal. have passed into the accounts of the executors ; all the other pol- icies, three in number, which were eflfected on the 12th February, and 2d and 3d March, 1859, were on the 10th September, in the same year, by assignments on the respective policies, assigned to " J. Thomas Elliott, in tnist for the only use and benefit of my wife Eliza T. EUiott, her heirs, and assigns," and to two of the companies notice of the assignments was given in due form by Mr. Elliott, the decedent, agreeably to their rules, but no notice was given to the International Life Assurance Society of London, that company not requiring such notice of the assignment ; the three documents remained together in his fire-proof, and were there found after his death in November, 1859. The auditor charged the executors with the International policy, but refused to sur- charge them with the other two policies, which report was con- firmed by the orphans' court, from which the executors have appealed as to the surcharge of the one policy, and Mr. Clay has appealed from the other part, declining to surcharge them with the other two policies. I am inclined to think under the decision of the lords justices, reversing the master of the rolls. In re Ways' Trusts, 34 L. J. C. 49, 10 Jurist N. S. 1166, that all these assign- ments stand on the same footing, notice of the assignment to the trustee or to the company in the case of the International being unnecessary. These assignments were all voluntary, and would have been good against heirs, devisees, or legatees, but here the decedent died insolvent, and the question is, are they good against creditors. These policies were securities for money, valuable choses in action which could be sold at public and private sale, and are included in the general words personal estate or property, and would pass under that head by deed or will. The words used in the statute of 13 Eliz. c. 5, are goods and chattels, which is the generic denomination of things personal as distinguished from things real, or lands, tenements, and hereditaments, and therefore includes life insurance policies, although unknown at the time of the passage of the statute, and it is clear that the voluntary assign- ments in the present case did disturb, hinder, delay, and defraud the creditors of the decedent. In England, in the later cases, it has been held that unless the property conveyed can be reached by execution, the conveyance is not fraudulent, because it does not delay or hinder creditors ; a very narrow and inequitable rule, and contrary to the earlier cases as held by Chancellor Kent, (1 Story's Com. 368.) 680 SUPREME COURT OF PENNSYLVANIA. Appeal of Elliott's Executors. Clay's Appeal. By an act of 1 & 2 Vict. c. 110, passed 16th August, 1838, (14 Stat, at Large, 950, 951,) under a fi. fa. the sheriff may seize money or hank notes, checks, bills of exchange, promissory notes, bonds, specialties, or other securities for money ; and in Stokoe v. Cowan, 7 Jur. N. S. 901, life policies are regarded as securities for money, and a voluntary conveyance of them was held fraudulent as against creditors under stat. 13 Eliz. c. 6. But in Norcutt v. Dod^, 1 Craig & Phillips, 100, it was held in a case unaffected by the statute of 1 & 2 Vict. c. 110, that a voluntary alienation of the property by a party who, at the time of such alienation, was in- solvent, may be set aside in a suit by his assignees subsequently appointed under the Insolvent Debtors' Act, although the subject of such alienation be a chose in action. Lord Chancellor Cotten- ham said : " This being an assignment of a chose in action, and the debtor being still living, the transaction is not fraudulent under the statute of Elizabeth alone, but under that contract taken in con- nection with the Insolvent Debtors' Act, I am of opinion that it is. The difficulty which arose upon the statute of Elizabeth with re- spect to voluntary assignments of choses in action was, that during the lifetime of the debtor creditors could not be said to be preju- diced by them, inasmuch as that species of property was not sub- ject to be taken in execution ; but after his death it was other wise^ because then the creditors might reach all his personal property, of whatever kind ; and the same reason applies when the debtor has brought himself within the operation of the Insolvent Debtors' Acts, because under those acts all his property becomes applicable to the payment of his debts." This is also the case in bankruptcy^ so that assignees in bankruptcy and in insolvency, and executors or administrators of an insolvent may as representing creditors set aside any fraudulent conveyance of any property of the bankrupt or insolvent, whether it be liable to execution in his lifetime or not. In Pennsylvania, under the mixed jurisdiction of our courts, it is settled that the executor or administrator of an insolvent estate may set aside a fraudulent conveyance, as he is in such a case a trustee for creditors. Mr. Justice Rogers, in Penrod v. Morrison, 2 Penn. Rep. 128, said: "Although Mitchell could not collect his debt hj fi.fa., and levy, as a chose in action is not the subject of execution, yet satis- faction might have been attained by compelling Morrison to assi^ for the benefit of his creditors." PHILADELPHIA, 1866. 681 Appeal of Elliott's Executors. Clay's Appeal. These three assignments of the three policies which are the sub- jects of the appeals before us, were therefore all fraudulent as against the creditors of the decedent, and his executors must be surcharged with the other two in addition to the one with which they were surcharged in the court below. The testator was hopelessly insolvent in 1859, and for some time previous. The insurances were effected in February and March of that year, assigned on the 10th September following, he dying two months afterwards, when the policies became due and payable. The assignments do not appear to have been known to the trustee or cestuis que trust, certainly not to his creditors, who were ap- parently first aware of his situation by the developments succeeding his decease. We can therefore have no difficulty in holding these assignments fraudulent and void, and that the proceeds of the poli- cies belong to the creditors and estate of the decedent. We are to be understood in thus deciding this case that we do not mean to extend it to policies effected*without fraud directly and on their face for the benefit of the wife, and payable to her ; such policies are not fraudulent as to creditors, and are not touched by this decision. The effect is to reverse so much of the decree of the court below as does not charge the accountants with the two other policies, and leaves undisturbed the only one already charged to them, and the part of the decree as to commissions and other charges. This dismisses the appeal of the executors, and Clay's appeal is success- ful so far as relates to the proceeds of the two policies and no fur- ther. This cause came on to be heard and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed, as follows : That the decree "of the orphans' court con- firming the report of the auditor be reversed, so far as it refuses to charge the executors of Isaac Elliott, deceased, with the sums re- ceived from the Manhattan Life Insurance Company of New York, and the New England Mutual Life Insurance Company, upon their respective policies of insurance upon the life of the said Isaac EUiott. And that the executors be surcharged with the said sums with interest from the date of receipt. And, further, that the re- mainder of the said decree of the orphans' court be affirmed ; and the cause is remitted to the said orphans' court to carry this de- 682 COMMON PLEAS, PHILADELPHIA. Machette v. Hodges & Solly and New England Life Insurance Company. cree into effect. The costs of the appeal in the said orphans' court and in this court to be paid out of the fund for distribution. In Clay's appeal the decree was : — This cause came on to be heard and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed, as follows : That the decree of the orphans' court, con- firming the report of the aflditor, be reversed, so far as it refuses to charge the executors of Isaac Elliott, deceased, with the sums received from the Manhattan Life Insurance Company of New York, and the New England Mutual Life Insurance Company, and that the executors be surcharged with the said sums with in- terest from the date of the receipt. And, further, that the remain- der of the said decree of the orphans' court be affirmed, and the cause is remitted to the said orphans' court to carry this decree into effect. The costs of this appeal in the said orphans' court and in this court to be |)aid out of the fund for distribution. E. V. Machette vs. Hodges & Sully, and The New Eng- land Life Insueance Company. (1 Brewster, 313. Common Pleas of Philadelphia, March, 1867.) Itgunction by agent entitled to premiums. — One who has been discharged as agent by an insurance company, and who is entitled to commissions on premiums, cannot maintain an injunction to restrain the collection of such premiums. The case is stated in the opinion. Senry M. Phillips ^ Isaac G-earhart, for complainant. E. I. B. Thomas ^ Wm. M. Meredith, for defendants. Bkewstek, J. These are motions to dissolve and continue the special injunction. The complainant alleges in his bill that he has long been known as a life insurance agent ; that in 1862 he was solicited by one Hopper, then chief agent of the corporation defendants, to become an agent for that company in Philadelphia ; that Hopper offered complainant a compensation of 10 per cent, on each first premium procured by complainant ; and " further, according to the universal custom, a continuing compensation in the shape of a percentage on each renewal premium," which was first fixed at 5 per centum, with the stipulation that complainant was " to have the right to MARCH, 1867. 68B Machette v. Hodges & Sully and New England Life Insurance Company. collect every such renewal premium, and remit the same to the company, after deducting the said compensation." The bill then avers that it is " the universal custom prevailing between life insurance companies and their agents, that on each policy any agent shall have procured he shall be entitled to receive the renewal premium and retain his commissions." The complain- ant alleges that under this arrangement he acted as agent of the company defendant, until about November 1st, 1866, secured a number of insurances, and rendered faithful accounts to the com- pany. It also charged that in October 1864, there was another agreement between complainant and the company, acting through its vice-president, the defendant Stephens, by which these com- missions were increased. The complainant then avers that in Oc- tober and November, 1866, the company sent to the persons whose insurance had been secured by complainant a notice that complain- ant was no longer an agent of the company, and requiring said persons to renew their policies through Hodges & Sullj^ The bill charges that this is in fraud of complainant's rights, and it con- cludes with prayers for an account and for an injunction, forbidding the defendants " from interfering with complainant in collecting the renewal premiums until adequate security is given for the com- missions to which complainant is entitled." Upon the hearing de- fendants read a number of affidavits, and various points were pre- sented and argued by the learned counsel on both sides. The view we have taken of the case will dispense with the necessity of noticing all the propositions thus submitted. The affi- davits read by the defendants emphatically deny the custom upon which the complainant mainly relies, and the material features of the contract with Hopper, as presented in the bill, are also expressly negatived by a witness, who deposes that he was Hopper's chief clerk, and that he " well remembers the understanding " entered into between said Hopper and complainant. The complainant's case is thus confined to the new agreement of October, 1864, and the letter from defendant Stephens to com- plainant, referred to as exhibit " B." There is nothing here, how- ever, to establish an irrevocable employment. The writer speaks of his proposition as being made " for a period," and in his affidavit he explains this as referring to " six months or one year," and ex- pressly denies " that he offered to give " complainant " a perpetual interest in renewal premiums, or during the life of the policies, or for any definite or certain length of time whatever." 684 COMMON PLEAS, PHILADELPHIA. Machette c. Hodges & Sully and New England Life Insurance Company. The motion for a continuaiice of the injunction has, therefore, no fact whereon to stand, and complainant's whole case is thus stripped of its equities. That no injunction can issue or be continued where the equities of the complainant's case are denied, is a proposition too well forti- fied by reason and authority to be successfully attacked. See re- marks of Lord Eldon in Clapham v. WTiite, 8 Ves. 35 ; of Par- sons, J., in Carf enter v. Burden, 2 Pars. 27 ; and Thompson, P. J., in Buell v. Sail, 1 Phil. Rep. 259. Were the complainant's averments uncontradicted, his right to an injunction would be exceedingly questionable. He admits that the company can discharge him from his office of agent, but con- tends that they cannot thus deprive him of the right to his com- mission upon the renewal premiums. It cannot be gainsaid that, if the agreement were as complainant avers it to have been, no action of the defendants could deprive the agent of his percentage. But his right to the commissions, and his authority to collect the premiums, are distinct and independent privileges. He might have the former without the latter power. If the company can dismiss him from his agency, — and this he does not dispute, — how can any debtor safely pay to complainant, or how can complainant legally receipt on behalf of persons he no longer represents ? In this view of the case, the injunction would produce to complainant a greater injiuy than that he asks us 'to restrain. For should we enjoin the insurance company, they could not receive the premiums. The complainant is no longer their agent ; he dare not sign a voucher in that capacity, and thus the premiums would be uncollected, and all parties injured with no possible benefit to either side. " A dead lock " is as much to be avoided in the law as in mechanics. Aside from all this, it must be very clear that the collection of these premiums by the company inflicts no irreparable injury upon Ahe complainant. If entitled to his commissions, he can still recover them, although they may be in the treasury of the defendants. His claim being disputed, he would be compelled to estabhsh his right, even though he received all the premiums. It will be no greater trouble for him to prove his case as a complainant than as a defendant, and the advantage of coercing a settlement by posses- sion of the fluid, or by destroying the business of the company, can find no favor in a court of equity. I have searched in vain tor an authority in support of this motion, and the great learning and PHILADELPHIA, 1869. 685 Helme i). Philadelphia Life Insurance Company. industry of the complainant's counsel have not been able to pro- duce a precedent for such an injunction. The nearest approach to this application that I have been able to find is the case of Peto v. Brighton Railway Company, 32 Law Jour. Rep. 1863, p. 677, Ch. There, however, Vice-Chacnellor Wood, although the defendants' conduct " grossly exceeded the ordinary cases of breach of faith," refused to restrain the issue to others of the shares belonging, under the defendants' contract, to the plaintiff. This would seem to be one of those " new cases " in which the exercise of the powert)f enjoining is to be condemned. Mr. Justice Baldwin, in the oft-cited case of Bonaparte v. Camden ^ Amboy Railroad Company, 1 Bald. 218, says that the injunction " will not be awarded in doubtful cases, or new ones, not coming within well-established principles. It will be refused till the court are satisfied that the case before them is of a right about to be de- stroyed, inseparably injured, or great and lasting injury about to be done by an illegal act." For these reasons the motion to dissolve the injunction is allowed, and the motion to continue the injunction is refused. See Ensworth v. N. Y. Life Ins. Co., ante, 645. Helme vs. The Philadelphia Life Insurance Company. (61 Penn. State, 107. Supreme Court, 1869.) CmUim of inswrance companies. — In an action to recover premiums, •which had been for- feited by non-payment on the day when they became due, evidence may be received to show a general custom among life insurance companies to allow thirty days for payment after the day stated in the policy. Estoppel. — If it was the practice of the company to notify the plaintiff of the times when her premiums were due, and they omitted to do so on the occasion of the default ; or if they had dealt with her so as to induce a belief that the clause of forfeiture would not be iqsisted on, in case of dereliction of payment at the day, and thus put her off her guard, they cannot take advantage of the default. Assumpsit to recover premiums paid on a life policy alleged to have been wrongfully forfeited. The policy contained a provision that it should be void if the premiums were not paid on the days when, they became due ; and that previous payments should then be forfeited to the company. The plaintiff proved that she tendered and the company refused 686 SUPREME COURT OP PENNSYLVANIA. Helme ». Philadelphia Life Insurance Company. the last premium within thirty days from the time when it became due, and that she was then in good health ; also that on several former occasions the company had received premiums overdue from her, stating on one occasion that she ran great risk by the delay ; death being the only risk mentioned. She also offered to prove a custom among insurance companies to receive premiums tendered at any time within thirty days from the day on which they fell due, provided the insured is in usual health, and that this is the custom among companies issuing policies stipulating that non-payment of premiums when due shall work a forfeiture. The evidence was not admitted ; the court directed a nonsuit f and the plaintiff ap- pealed. R. P. White, (^Gr. H. Uarle with him,) for the plaintiff, cited Bateman, Com. Law, § 154 ; Chaurand v. Angerstein, Peake's N. P. 43 ; Nohle v. Kennoway, Doug. 492 ; Buckbee v. U. S. Ins. Co. 18 Barb. 541 ; {ante, 406 ;] Peachy v. Somerset, 3 Lead. C. in Equity, 669, 675 ; 2 Story, Equity, §§ 777, 1314-1316, and notes ; Ins. Co. v. Jenks, 6 Ind. 96 ; [ante, 101 ;] Loring v. Crur- ney, 5 Pick. 15 ; Carroll v. Ins. Co. 38 Barb. 402 ; Trustees v. Ins. Co. 18 Barb. 69 ; Ins. Co. v. Lewis, 18 111. 553 ; Croit v. Ins. Co. 25 Barb. 189 ; Ins. Co. v. Stauffer, 9 Casey, 397. C. Gribbons, for defendants, cited 8 Kent's Com. 260 ; 1 Greenl. Ev. §§ 292, 295, and note ; Coxe v. Eeisley, 7 Harris, 243. Thompson, C. J. The plaintiff below offered on the trial to prove a custom among life insurance companies, to allow thirty days' grace for payment of premiums due, even where a clause of forfeiture for non-payment on the day exists. The rejection of the offer by the court forms the first bill of exceptions and assignment of error to be considered in this case. It might have been a difficult thing to prove such a custom, but that was not a good ground on which to refuse the offer. It was the plaintiff's right to prove it if she could, and we are to take it, for the purposes of this investigation, that she could have proved it. Would it have been efficient proof for any purpose had it been admitted ? We think it would, although generally a contract is the law of the transaction in which it exists, and is not to be affected by anything but its terms ; that is to say, it cannot be abridged or enlarged in itself by anything else ; yet there are many cases in which its execution is materially curtailed by usage or custom. A familiar instance are days of grace on commercial paper. By a PHILADELPHIA, 1869. 687 Helme ». Philadelphia Life Insurance Company. custom grown into law, it is not due until the expiration of three days after it purports to be, or rather the remedy is suspended against parties for that period. So in agriculture : although the lease may fix the duration of the term, and when it is to end, yet the tenant by custom has rights in the premises after it is ended to haryest and carry away his share of what the custom calls the way- going crop. 5 Binn. 295. 2 Serg. & R. 14. 1 Dallas, 201. Smith's Leading Cases, 6th ed. 470. This custom seems to do more than curtail the remedy ; it in fact enlarges the contract. But no cus- tom is more perfectly established, or more thoroughly stands on a solid foundation as law. There are customs which interpret ma- rine contracts to the extent of apparent changes in them. In Peake's Nisi Prius, 43, in the case Chaurand v. Angerstein, it was shown that by custom a stipulation in a policy of insurance that a vessel was to sail in October, meant that she was to sail between the 25th of the month and the 1st or 2d of November. While a custom, as a general rule, may not be heard to affect the terms of a statute nor a contract, to the extent of enlarging or abridging the force of it, yet it may interpret either. Rapp v. Palmer, 3 Watts, 178. The offer in this case was to curtail the generality of the clause of forfeiture in the policy in case of non-payment of the premiums at the day, and to show that a forfeiture was not demandable at the day, nor at all, if paid within thirty days. If the plaintiff could have established this as a custom, her case would on this point have been clear of difficulty ; for the testimony was that she had tendered the premium for the non-payment of which the forfeiture was claimed, once and perhaps twice, within thirty days after it was due by the terms of the policy. We do not know whether there is or is not such a custom. That is not our question at this time ; the plaintiff offered to prove it, and the offered testimony should have been admitted in our opinion. This error, therefore, is sus- tained. Besides this, we think there was evidence in the case for the jurj' in other aspects of it. It was the practice of the company to notify the plaintiff of the times her premiums were due and pay- able, and omitted on the occasion of the default ; or if they so dealt with her as to induce a belief that the clause of forfeiture would not be insisted on in her case, in case of a dereliction of pay- ment at the day, and that it was declared that the only risk she 688 SUPREME COURT OF PENNSYLVANIA. Helme v. Philadelphia Life Insurance Company. ran in not paying at the precise time, was death occurring in the interval of nonrpayment of overdue premiums, and this put her off her guard, they ought not to be permitted to take advantage of a default which they may themselves have encouraged. That was an aspect of the case in proof upon which the jury should have been allowed to pass. In transactions of this nature, it is easy to mislead by a pretence of liberality, if followed by entire strictness in practice ; and the only cure for this is the inquiry by the jury whether the party has been misled by the former. If so, it is a fraud upon the parties' rights which ought to be condemned and redressed. The cases of Bucklee v. The United States Ins. Co. 18 Barb. 541,^ and Ruse v. Ins. Co. 26 Idem, 556,^ strongly sus- tain this view. In this manner a waiver of strictness may take place, and it is not to be doubted that the company may waive de- fective compliance with the rules of insurance. 9 Casey, 397. 12 Watts, 280. 4 Idem, 311. 5 Idem, 161. 7 Idem, 350. 8 Idem, 259. 10 Idem, 323. Forfeitures are odious in law, and are en- forced only where there is the clearest evidence that that was what was meant by the stipulations of the parties. There must be no cast of management or trickery to entrap the party into a forfeiture. If the strictness in this case was the result of a desire to wind up business (and we learn the company did: not exist long thereafter) and it was adopted to avoid a return of premiums, the least which can be said of it is that it was a most discreditable transaction. We do not know how this was. At the same time it is singular that absolute strictness should be required in paying premiums, if the company had it in contemplation to cease insuring and to return the premiums to parties who had regularly paid them, as they would be obliged to do. There is undoubtedly a comity at least extended to all insurers, in regard to the matter of paying premi- ums. No company would be worthy to receive the countenance of the public, which should establish a practice that would, for every little dereliction, forfeit the policies of the insured, even if it had the power. We think the learned judge erred in awarding a nonsuit, as well as in r.g'ecting the proposed testimony, and that the nonsuit must be set aside and a procedendo awarded ; which is done ac- cordingly. 1 Ante, 406. 2 Ante, 467. See also Mutual Benefit Life Ins. Co. v. Ruse, ante, 83. DECEMBER, 1870. 689 Nimick v. Mutaal Benefit Life Insurance Company. Alexander & William K. Nimick, assignees of Horace C. Benham, vs. The Mutual Benefit Life Insurance Co.^ (Circuit Court of the United States. Western District of Pennsylvania, De- cember, 1870.) Suicide during insanity, committed intentionally and knowingly, will vitiate a life policy conditioned to be void if the assured shall die by his own hand. The case is stated in the opinion. J. M, Bailey, John Burton, ^ W. L. Chalfant, for plaintiffs. Q-eorge Shiras, Jr., and Stoner ^ Patterson, for defendant. Charge to the jury. McKennan, Cir. J. This suit is brought by the assignees of Horace C. Benham, to recover from the Mutual Benefit Life In- surance Company the sum of $5,000, which it agreed to pay at the death of Benham, upon certain conditions set forth in the policy of insurance, on which the suit is founded. The defendant, by its plea, admits all the essential facts, alleged in the declaration, and they are therefore to be assumed as fully proved, and the plaintiffs' ri^t, primarily, to recover, as estab- lished. But this admission is coupled with an averment that the assured " died by his own hand." Upon this ground the plaintiffs' recovery is resisted. This allegation is denied by the plaintiffs, and they further reply that Benham, at the time of his death, wras of unsound mind. Evidence has been produced on both sides touching the manner of Benham's death, and his mental condition at the time. Of the sufficiency of this you are to judge, under the instructions pres- ently to be given. Upon the party who affirms an essential fact devolves the bur- den of proving it. It is incumbent on the defendant, then, to convince you that the assured was the wilful destroyer of his own life. On the proof of this the defence must stand or fall. So, if this fact is satisfactorily shown, it is the duty of the plain- tiffs to make out their allegation that the assured was insane. In- sanity is an exceptional condition of the mind, and the legal pre- sumption, therefore, is that every one is of sound mind, until the contrary is proved by sufficient affirmative evidence. 1 For a copy of this case we are indebted to the Hon. Wm. McKennan, who delivered the able opinion in it. 44 690 U. S. CIRCUIT COURT, W. DIST. OF PENN. Nimick «. Mutual Benefit Life Insurance Company. You will then inquire, in the first place, as to the manner in which the assured came to liis death. Did he take his own life, or was it taken by others ? Was his death voluntary or accidental ? If you find that it resulted from his own act, you will then consider the state of his mind, as it aiFected the exercise of his will, and a comprehension of the physical nature and consequences of the act, aside from its moral character. I do not deem it at all pertinent to the practical solution of the question to invite a discriminating scrutiny of tlie opinions of the excellent professional gentlemen who have differed so widely in judgment upon the same statement of facts, as to the sanity of the assured. It would fm'nish you assistance in reaching a conclusion within the range which the law prescribes as the limit of your in- quiry. How far it js necessary or proper for you to go in this di- rection I proceed to state more fully, in answer to the points sub- mitted by the counsel on both sides. The proviso in this policy is in these words, " or in case he shall die by his own hand, .... this policy shall be void, null, and of no effect." Literally interpreted,ihese words import death, un- ■ der all circumstances, caused by the act of the assured, whether intentional or accidental. Some relaxation of their strict sense, however, is required, by the nature of the contract, to effectuate the intention and object of the parties ; but no qualification of them, not necessary to this end, is warrantable. They are intended to protect the insurer against the consequences of the physical act of the assured. They refer distinctly to the physical agency by which death may be caused ; only by implication, quite speculative, to the moral sensibility of the agent. Their sense, then, is entirely satis- fied by expounding them as describing an act of the assured, re- sulting in his death, as an intended consequence of it, irrespective of his understanding of its moral nature. Adopting the language of Erskine, J., in Borradaile v. Hunter, 5 Mann. & Gran. 639, " It seems to me that the only qualification that a liberal interpre- tation of the words, with reference to the nature of the contract, requires, is, that the act of self-destruction should be the voluntary and wilful act of a man, having, at the time, sufficient powers of mind and reason to understand the physical nature and consequence of such act, and having, at the same time, a purpose and intention to cause his, own death by that act ; and that the question, whether, at the time, rhe was capable of understanding and appreciating the DECEMBER, 1870. 6'n Nimick v. Mutual Benefit Life Insurance Company. moral nature and quality of his purpose, is not relevant to the in- quiry, further than as it might illustrate the extent of his capacity to understand the physical character of the act itself." And also the words of Bigelow, C. J., delivering the unani- mous judgment of the supreme court of Massachusetts, in Dean V. American Mutual Life Insurance Co. 4 Allen, 98 : ^ " Apply- ing, then, the first and leading rule by which the construction of contracts is regulated and governed, we are to inquire, what is a reasonable interpretation of this clause, according to the intent of the parties. It certainly is very difficult to maintain the propo- sition that where parties reduce their contract to writing, and put their stipulations into clear and unambiguous language, they in- tended to agree to anything different from that which is plainly expressed by the terms used. It is, however, t6 be assumed that every part of a contract is to be construed with reference to the subject matter to which it relates, and with such Hmitations and qualifications of general words and phrases as properly arise and grow out of the nature of the agreement in which they are found. Giving full force and effect to this rule of interpretation, we are unable to see that there is anything unreasonable or inconsistent with the general purpose which the parties had in view in making and accepting the policy, in a clause which excepts from the risks assumed thereby the death of the assured by his own liand, irre- spective of the condition of his mind, as affecting his moral and legal responsibility at the time the act of self-destruction was con- summated. Every insurer, in assuming a risk, imposes certain re- strictions and conditions iipon his liability. Nothing is more com- mon than the insertion in policies of insurance of exceptions by which certain kinds or classes of hazards are taken out of the gen- eral risk which the insurer is willing to incur. Especially is this true in regard to losses which may arise or grow out of an act of the party insured. Such exceptions are founded on the reasonable assumption that the hazard is increased when the insurance extends to the consequences which may flow from the acts of the person who is to receive a benefit to himself or confer one on others by the happening of a loss within the terms of the policy. Where a party procures a policy on his life, payable to his wife and children, he contemplates that, in the event of his death, the sum insured will inure directly to their benefit. So far as a desire to provide 1 Ante, 195. 692 U. S. CIRCUIT COURT, W. DIST. OF PENN. Nimick v. Mutual Benefit Life Insurance Company. in that contingency for the welfare and comfort of those dependent on him can operate on his mind, he is open to the temptation of a motive to accelerate a claim for a loss under the policy by an act of self-destruction. Against an increase of the risk arising from such a cause, it is one of the objects of the proviso in question to protect the insurers. Although the insured can derive no pecuni- ary advantage to himself by hastening his own death, he raa.y have a motive to take his own life, and thus to create a claim under tlie policy in order to confer a benefit on those who, in the event of his death, will be entitled to receive the sum insured on his life. Unless, then, we can say that such a motive cannot operate on a mind diseased, we cannot restrict the words of the proviso so as to except from the risk covered by the policy only the case of crimi- nal suicide, where the assured was in a condition to be held legally and morally responsible for his acts. It certainly would be con- trary to experience to affirm that an insane person cannot be influ- enced and governed in his actions by the ordinary motives which operate on the human mind. Doubtless there may be cases of de- lirium or raging madness where the body acts only from frenzy or blind impulse, as there are cases of idiocy or the decay of men- tal power, in which it acts only from the promptings of the lowest animal instincts. But in the great majority of cases where reason has lost its legitimate control, and the power of exercising a sound and healthy volition is lost, the mind still retains sufficient power to supply motives and exert a direct and essential control over tlie actions. In such cases, the effect of the disease often is to give undue prominence to surrounding; circumstances and events, and by exaggerating their immediate effects or future consequences, to furnish incitement to acts of violence and folly. A person may be insane, entirely incapable of distinguishing between right and wrong, and without any just sense of moral responsibility, and yet retain sufficient power of mind and reason to act with premedita- tion, to understand and contemplate the nature and consequences of his own conduct, and to intend the result which his acts are cal- culated to produce. Insanity does not necessarily operate to de- prive its subjects of their hopes and fears, or the other mental emo- tions which agitate and influence the minds of persons in the full possession of their faculties. On the contrary, its effect often is to stimulate certain powers to extraordinary and unhealthy action, and thus to overwhelm and destrov the due influence and control of the DECEMBER, 1870. 693 Nimick v. Mutual Benefit Life Insurance Company. reason and judgment. Take an illustration. A man may labor under the insane delusion that he is coming to want, and that those who look to him for support will be subjected to the ills of extreme poverty. The natural effect of this species of insanity is to create great mental depression, under the influence of which the sufferer, with a view to avoid the evils and distress which he imagines to be impending over himself and those who are dependent upon him for support, is impelled to destroy his own life. In such a case suicide is the wilful and voluntary act of a person who understands its na- ture, and intends by it to accomplish the result of self-destruction. He may have acted from an insane impulse, which prevented him from appreciating the moral consequences of suicide ; but never- theless he may have fully comprehended the physical effect of the means which he used to take his own life, and "the consequences which might ensue to others from the suicidal act. It is against risks of this nature — the destruction of life by the voluntary and intentional act of the party assured — that the exception in the proviso is intended to protect the insurers. The moral responsi- bility for the act does not affect the nature of the hazard. The ob- ject is to guard against loss arising from a particular mode of death. The causa causans, the motive or influence which guided or con- trolled the will of the party in committing the act, are immaterial as affecting the risk which the insurers intended to except from the policy. This view is entirely consistent with the nature of the contract. It is the ordinary case of an exception of a risk which would otherwise fall within the general terms of the policy. These comprehended death by disease, either of the body or brain, from whatever cause arising. The proviso exempts the insurers from liability when life is destroyed by the act of the party insured, al- though it may be distinctly traced as the result of a diseased mind. It may well be that insurers would be willing to assume the risk of the results flowing from all diseases of the body, producing death by the operation of physical causes, and yet deem it expedient to avoid the hazards of mental disorder, in its effects on the will of the assured, whether it originated in bodily disease, or arose from external circumstances, or was produced by a want of moral and religious principle." I have appropriated so much of these opinions, because they could not be abridged without impairing the completeness of the argument, presented by them with so much force and clearness. 694 U. S. CIRCUIT COURT, W. DIST. OF PENN. Nimick v. Mutual Benefit Life Insurance Company. They declare what is now, upon the fullest discussion and consider- ation, and often repeated decisions, the settled law of England, and of one of the most respectable judicial tribunals in the United States. I am not unmindful that there is some diversity of adjudi- cation in reference to this question, but, in my judgment, the weight of authority, as well as of reason and argument, is decidedly in fa- vor of the construction adopted. We must not forget that we are dealing with a contract, reduced to writing, and founded upon the assent of both the parties to it. It is our imperative duty, then, to expound and enforce it, as the parties themselves have made and declared it to be, not as we might think it ought to have been made. If you are not satisfied, by the evidence, that Horace C. Benham came to his death' by his own hand, you will find for the plaintiffs the amount claimed by tliem in this suit. If, however, you believe, from the evidence, that he committed self-destruction, that he intended to destroy his life, and compre- hended the physical nature and consequences of his act, the plain- tiffs are not entitled to recover, and your verdict should be for the defendant. Verdict for plaintiffs ; which, on motion of the defendant, was set aside, and new trial ordered. Note. — Cooper v. Mass. Mut. Life Ins. Co., post, 758, supports the doctrine of the above case, while Breasted v. Farmers' Loan If Trust Ins. Co., ante, 341 , 343, and it seems, EastcArook v. Union Ins. Co., ante, 139, hold the contrary doctrine, that such a policy as the one in suit in this case will not be avoided by self-destruction during insanity. See also St. Louis Mut. Life Ins. Co. v. Graves, post, 736, in which the Kentucky court of appeals were equally divided on this point ; but they held unanimously that in case of suicide committed durinor a temporary subordination of the will by an uncontrollable passion or emotion, induced by excessive potations of intoxicating drink, the policy was avoided. In Hartman v. Keystone Ins. Co., ante, 649, Chief Justice Black declared that the act of suicide was such a fraud upon the company as to avoid the life policy, though it contain no provision on the subject. Sed qumre. See note to that case. RHODE ISLAND. George C. Nightingale & another, executors, vs. The State Mutual Life Insurance Company of Worcester. (5 Khode Island, 38. Supreme Court, September, 1857.) TraveUing beyond limits. — In an action upon a life policy conditioned to be void in case the assured should go beyond certain limits, at certain seasons of the year, and there re- main for more than five days at a time, without the consent of the office, it appeared that the insured, Protestant Episcopal Bishop of Rhode Island, did, within the said time, go beyond the limits allowed, without the consent of the company, for the purpose of per- forming episcopal functions, and that he remained there ten days. He was then attacked with apoplexy and died; but it was in proof that the death was neitlier caused nor has- tened by the change of climate, but grew out of constitutional causes alone. Held, that the condition of the policy was broken. Equitable adjustment. — In an action upon a policy which provided that " in case of forfeiture from the above, or any other cause, the party interested shall have the benefit of such equitable adjustment as may, from time to time, be provided by the board of directors; " held, that this gave the directors full and exclusive discretion over the matter of adjust- ment, which could not be controlled by a court of justice. Assumpsit by the executors of Rt. Rev. John Prentiss Kewley Henshaw, Bishop of Rhode Island, to recover $1,500, the amount of a certain policy of life insurance effected with the defendant company by Bishop Henshaw, on his life, and commencing April 1st, 1848.,' The facts as agreed were as follows: In July, 1852, Bishop Henshaw was called upon to minister in his episcopal character in Maryland, and after having been thus engaged there for ten days was attacked with apoplexy and died. It was proved that Bisho[) Henshaw's death was not caused or hastened by the change of climate, but grew out of constitutional causes which were entirely independent of latitude. Among other clauses in the policy were the following : " And the said company further agree that the person whose life is thus insured may reside constantly anywhere within the limits of New England, or of the states of New York, New Jersey, Pennsylvania, and Ohio ; and may travel and be in any other set- tled portions of the United States, or the British Provinces of Can- 696 SUPREME COURT OF RHODE ISLAND. Nightingale v. State Mutual Life Insurance Company of Worcester. adaj New Brunswick, and Nova Scotia, under the restrictions and liqaitations hereinafter mentioned ; provided, however, that this policy is entered into and accepted upon the following express con- ditions, namely : " If such person shall, without the consent of the company first had and indorsed upon this policy, " between the first day of July and the fifteenth day of October, go into any other portion of the United States, beyond the limits of constant residence permitted herein, and be in such other portions of the United States more than five days ; " "in any and all such cases this policy shall be void, and all payments thereon forfeited to said company ; but in case of forfeiture fi-om the above, or any other cause, the party interested shall have the benefit of such equitable adjustment as may, from time to time, be provided for by the board of directors." From the charter it appeared that the company embraced as members, shareholders of a guaranty stock to the amount of $100,000, as well as the persons whose lives were insured by it, amongst all of whom all profits were to be divided. The directors were to be elected equally from the two classes by their joint votes. The bishop's visit was made without any notice to the office. Upon his death his executors aj^lied to the company for payment of the whole or some part of the insurance money, but the com- pany refused to give more than the surrender value of the policy, $169.65 ; and the executors did not accept this. T. A. Jenckes, for the plaintiff's, cited Anderson v. Fitzgerald, 24 Eng. L. & Eq. 1, and Bunyon on Life Assurance, 80, in sup- port of the principle that the language of the conditions, being the language of the company, must be taken most strongly against them. He claimed that the qualifying clause contained an express promise of an equitable adjustment which they had not kept, and asked the court to enforce it, claiming the amount insured, with interest. Upon the construction of conditions he cited Maine v. Bell, 9 East, 195. Abraham Payne, for the defendants, cited Hathaway v. Trenton Mut. Life and Fire Ins. Co. 11 Gush. 448,^ upon the construction of the policy. He contended that the qualifying clause left the matter of adjustment entirely to the directors. Ames, 0. J. It is admitted that the late Bishop Henshaw did, without consent of the defendant company issuing the policy, " first 1 Ante, 172. SEPTEMBER, 1857. 697 Nightingale v. State Mutual Life Insurance Company of Worcester. had and indorsed thereon," and between the 1st day of July and the 15th day of October, 1852, go into the State of Maryland, a portion of the United States beyond the limits of constant residence permitted by the policy, and there remain more than five days, to wit, about ten days, at the end of which period, and about the 20th day of July of that year, he died. The holy errand on which he went, the absence of all connection between his going and remain- ing, and the cause of his death, are not permitted to swerve our judgment from the legal effect of so plain a breach of a condition of this policy, upon the occurring of which it is, by its own terms, " to be void, and all payments thereon to be forfeited to the com- pany." It is true, that by the qualifying clause of the condition of forfeiture, the executors of the assured would have been entitled to the benefit of any equitable adjustment provided for by existing rules established by the directors, or accorded by their special act. Whether such rules should be established, or such special dispensa- tion from the forfeiture should be granted was, as it seems to us, left by this qualifying clause wholly to the discretion of the direc- tors, who, " from time to time," might act in the matter ; except, indeed, that they should not be permitted to change, to the injury of the assured, an established rule of adjustment existing at the time of the act or omission of forfeiture. The construction which supposes that such discretion was designed by both parties to the contract to be reposed in the directors, as fair arbiters for all inter- ested, borrows support from the fact that, under the charter of this company, the directors are elected by the joint votes of the assured and holders of the guaranty stock, and are to be chosen, in moieties, out of these two classes of the members of the corporation. No rule of equitable adjustment applicable to the case at bar appears to have been established by the directors of this company, and the request made to them by the claimants for special action in their favor was, upon full consideration, rejected. We cannot interfere with their discretion in this matter without doing violence to the contract upon which we are called to adjudicate, and must there- fore render Judgment for the defendants. Note. — In Notman v. Anchor Insurance Co. 4 Com. B. (N. S.) 476, (1858,) the insured paid a certain sum for permission to proceed to and reside at B. for a year, a place to which he could not go without license, and stated that he was then about to go to that place. He did not, however, go there then, but some years affer went, and died there withm a year after his arrival, havijig nevei 698 SUPREME COURT OF RHODE ISLAND. Mowry v. Home Insurance Company. paid any extra premium, as required by the policy, except the above, but having paid regularly his ordinary premiums down to his death. Held, that the com- pany were liable. Indorsed upon a policy was a condition that it should be void if the insured should go beyond the Umits of Europe without the license of the directors. The condition was broken ; but after the breach the local agent of the company at the place where the insurance had been effected continued to receive the usual premiums upon the policy, with notice of the breach of condition, which he represented as not invalidating the policy, provided that the premiums were regularly paid : Held, that the notice of the breach of the condition given to the agent of the company was constructive notice to the office ; and that the com- pany, whether they had express notice of the breach or not, were precluded by the conduct of their agent from ins^ting upon forfeiture upon the death of the insured. Wing v. Harvey, 5 De G* M. & G. 265, (1854.) See Hathaway v. Trenton Mut. lAfe Ins. Co., ante, 172, and cases cited. Daniel A. Mowry, Jk., vs. The Home Insueance Company.^ (To appear in 9 Rhode Island Reports. Supreme Court, October, 1869.) Other insurances. — The fact that the assured had provided other heavy insurances on his life since the one in suit, will not vitiate the contract, there being no restrictions upon this subject in the policy. Insurable interest. — If the plaintiff had an insurable interest in the life at the commence- ment of the risk, it is not necessary that such interest should exist at the time of suit. And in the absence of express stipulation to the contrary, the sum expressed on the &ce of the policy is the measure of recovery. Excessive intemperance. — The occasional use of intoxicating liquors does not come within a provision against the excessive use of intoxicating liquors or opium. Premium note. Agent's authority. — A receipt for the payment of premium, signed by the officers of an insurance company and delivered bj' their -agent, is presumptive evidence of payment, though a note was in fact given, and is a recognition of the note as payment. The agent has presumptive authority to take such note; and any limitation upon his authority must be brought home to the knowledge of the plaintiff. Payment of premium overdue. — If the premium be not paid until after it is due, it is the duty of the plaintiff to show that the assured was then in good health. The case is stated in the opinion. Potter, J. Daniel A. Mowry, Jr., by policy dated March 3, 1866, for an annual premium of $690, insured the sum of $10,000 on the life of his uncle, Nelson H. Mowry. The policy was sued at the March term, 1869, for Providence County, a verdict for the full amount rendered against the defend- ants, who move for a new trial on account of erroneous rulings, and because the verdict is against the evidence. 1 For a copy of this case we are indebted to Horatio Rogers, Esq., of Prov- idence, Rhode Island. OCTOBER, 1869. 699 Mowry v. Home Insurance Company. 1st. The first ground of the motion is that the plaintiff closed his testimony without putting in any evidence that he had any insur- able interest in the life of Nelson H. Mowry ; that the defendants moved for a nonsuit, which the judge at first decided to sustain, but afterwards allowed the plaintiff to put in evidence to that effect. Subject to the rules of evidence, and to certain general princi- ples, the whole conduct of the trial, the order of introducing evidence, and the allowing a party to introduce evidence at any particular time, must be subject to the discretion of the presiding judge, with a view to bring before the jury the merits, and the whole merits, of the case, and we see no reason for granting a new trial on this ground. 2d. Because the judge allowed the plaintiff to put in a letter fi:ora the president of the defendant company to Shepley, constitut- ing him an agent of the company, and at the same time ruled out certain instructions referred to in said letter. The letter had been admitted without objection. It was put in to show Shepley's agency. The last paragraph is : " You will of course study carefully our ' Instructions to Agents ' sent herewitli ; the suggestions contained therein will, we presume, cover all the points likely to arise in your business. If, however, you need any explanation or information at any time, please write us and we shall be happy to answer your inquiries." It thus seems that the letter did not refer to the instructions as any limitation on his authority, and it does not appear that they were anything more than advice and information for his private use. It did not appear that at the time of making the policy the plaintiff knew either of the letter or of the instructions, and the fact of his agency was not disputed be- fore the jury. In fact, the documentary evidence of his recognition as a general agent was afterwards put into the case. We do not 'think the rejection of these instructions under these circumstances a sufficient reason for a new trial. 3d. That the judge admitted the testimony of the plaintiff and others that said Shepley told him and others that if no poison was found the defendants would pay. The testimony of the plaintiff as to Shepley's statement to him was not objected to; that of the others was objected to and ruled in. The judge expressly told the jury that if Shepley was agent the statement would have the same effect as if made by the defendants, TOO SUPREME COURT OF RHODE ISLAND. Mowiy V. Home Insurance Company. and that if the defendants had made such a statement themselves it would not bind them, but it was left to the jury in connection with the other facts in the case. We do not consider this as a sufficient ground for a new trial. 4th. That the judge ruled out testimony offered by the defend- ants that the plaintiff had within less than two years got $-30,000 more insurance on the same life for the purpose of showing that tlie policy sued on was a wagering and speculative policy, and of show- ing that the plaintiff must have known that there was something in the condition of said Nelson which would make the insurance peculiarly hazardous, and which was not communicated to defend- ants. It was sufficient for the purposes of this case that the jury were satisfied that he had (as he represented) an insurable interest. We cannot make a new contract for the parties. They made a definite, specific contract to pay a certain sum on a certain event. The companies calculate the risk according to the tables, and upon cer- tain representations. They are paid for the risk. If they had wished to provide against additional insurance they could have done so, but they have not done so. 5th. The objections made to the charge are, — Because the judge did not charge the jury that the application and policy were to be taken together and constitute the contract between the parties. We think the judge did charge to this effect, although not in the exact words asked. 6th. That the judge refused to charge that if plaintiff did not have an interest in his uncle's life to the amount of $10,000, the policy was void by the terms thereof, and that as matter of law the plaintiff's only interest in the life of his uncle was the amount of his indebtedness, and that he could in no event recover an amount exceeding that. The plaintiff claimed an interest in the life insured on account of a debt owing him from his uncle, and also on acccount of an ar- rangement for going into some business, in which his uncle was to assist him, and which would have proved very profitable. A por- tion of the debt had been paid. The defendants contended tliat the debt was a trumped up claim, and was also barred by the stat- ute of limitations. The judge charged that the plaintiff, in order to recover, must OCTOBER, 1869. 70l Mowry v. Home Insurance Company. show an insurable interest in the life of his uncle, and on the point made by the defendants that the statements in the plaintiflT's appli- cation (one of which was that he had an. insurable interest in his uncle's life to the amount of $10,000) were not true, the judge charged that the burden of proof was on the defendants to show that the statements were untrue ; that the value of the uncle's life to the plaintiff was matter of estimate or opinion ; and it was for the jury to judge whether, by a fair and honest estimate at the time, the plaintiff could consider that he had an interest in his uncle's life to that amount. And the judge further charged that the fact that the note was barred by the statute of limitations was not of itself evidence that it was not good and valid to sustain the plaintiff's claim, and that these were considerations addressed to the jury. It was contended that the contract is to be considered as made in New York, and to be governed by the laws of New York. As we understand the New York statute, (Revised Statutes, New York, vol. 1, pt. 1, ch. 20, title 8, art. 8, §§ 8-10, Edmond's ed. p. 614,) and the decisions made in that state, this could make no difference in the present case. That the judge did not charge that if any pecuniary interest the plaintiff h^-d in his uncle's life at the date of the policy had been discharged by payments from his uncle, or from the Brooklyn Life Insurance Company, the plaintiff could not recover. If the plaintiff had an interest at the commencement of the pol- icy, (if an interest was required,) it is not necessary that interest should exist at the time of suit. Rawls v. Am. M. L. I. Co. 36 Barb. 357.1 If the parties had wished to make it a mere contract to guarantee a debt, they could have done so. They have not done so. We consider it settled by the authorities that a life insurance policy is not in any proper sense a contract for indemnity. It is indeed necessary in New York, and according to some of the other authorities, that the insurer of the life of another should have some interest at the time of insurance, but what that may be is left very much undefined. The reasons generally given for requiring an interest as matter of public policy do not seem very forcible, and in Treinton M. L. ^ F. I. Oo. v. Johnson, 4 Zabriskie, 576,^ the court held policies good without interest, and observe that a policy on 1 Ante, 549. 2 Ante, 327. 702 SUPREME COURT OF RHODE ISLAND. Mowiy V, Home Insurance Company. another's life is just as dangerous and tempting to crime where there is an interest as where there is not. As the judge observed on the trial, it is almost impossible to esti- mate exactly the interest one has in the life of another. If he is a debtor, it does not follow that the interest of the insurer is the whole amount of his debt. That the judge refused to charge, that if said plaintiff procured insurance on the life of his uncle largely in excess of his pecuniary interest, and such interest was used as a cover for a wagering pol- icy, the plaintiff could not recover. This point is disposed of by what we have before said.' In this case the plaintiff represented that he had an insurable interest to the amount of $10,000, and that matter was left to the jury under the directions before mentioned. Moreover the judge did substantially comply with the request. He charged the jury that if the plaintiff's claims were merely the pretext for the insurance, and he had no interest in the life of his uncle which, as a reasonable man, he would desire to have pro- tected by an insurance, or if that interest were small and the in- surance vastly disproportionate, that then the contract was a gaming contract and should not be sustained. 7th. The judge was requested to charge that if the habits of said Nelson H. Mowry were not uniformly and strictly temperate, the verdict should be for defendant. As one of the questions proposed and answered in connection with the above was whether said Nelson was addicted to the ex- cessive use of alcohoKc liquors or opium, we think the judge rightly ruled that this language was to be taken in its ordinary sense, and • that an occasional use was not to be deemed intemperance, but that he must indulge in them to such an extent as could be con- sidered an excess. 8th. Upon the point whether any company had previously re- jected any application for similar insurance, we deem the evidence which was stated to the jury to be too indefinite to be entitled to much influence. And the judge did charge that if the jury were satisfied such an appUcation had been rejected, the verdict as to that point should be for the defendants. 9th and 10th. That it was in evidence that the cash premium was not paid on the 3d March, and that Shepley, the agent, had no authority to waive it or accept a note in lieu of part of it. OCTOBER, 1869. 703 Mowiy V. Home Insurance Company. The judge ruled, and we think properly, that the receipt signed by the officers of the company and delivered by the agent Shepley, dated March 3d, was presumptive evidence of payment on that day, and was a recognition of the note as payment. And that if Shepley was the regular agent of the company in this state, then he had, in the absence of evidence to the contrary, full authority to act for the company, and that any limitation on this authority must be brought home to the knowledge of the plaintiff. 11th. The judge charged rightly that if the premium was not paid on the 3d March, but afterwards, it was the duty of the plain- tiff to satisfy the jury that Nelson H. Mowry was in good health at the date of payment, in order to keep the policy in force ; and upon the 12th point he charged as requested. We have considered these points, and also the question as to the weight of evidence, and see no sufficient reason for granting a new trial. Note. — How the point stated in the 11th exception came before the supreme court is not clear. The ruling in the court below was certainly in favor of the company ; and it was not for them to object. If the company actually received the premium when it was past due, that was a waiver of the right to insist that the assured should be in good hesdth at the time, (^Rockwell v. Mut. Life Ins Co., post, 725 ; Bouton v. American Mut. Life Ins. Co., ante, 51, and cases cited ;) unless the company at that time re- quired of the assured proof of the state of his health. If this was the fact, and he made a false representation concerning it, the policy would be avoided. See Campbell v. New England Mut. Life Ins. Co., ante, 229, and cases cited. SOUTH CAROLINA. W. M. Rivers, administrator, vs. Gregg, Hayden & Co. et aL (5 Rich. Eq. 274, 286. Court of Appeals, January, 1858.) Insurance by creditors upon the life of debtor. — Creditors taking out a policy of insurance on tlie life of an infant debtor, and with his consent, they paying the premium and other expenses, are entitled, on the death of the infant, to the proceeds of the policj', to the extent of their debt ; whether the policy be taken in their names, or in the name of the infant. In chancery. • The case is stated in the opinion of the chancellor, which was delivered in the circuit court, and affirmed and adopted in the court of appeals. Cooper, for plaintiff. Porter, for Gregg, Hayden & Co. B. J. Whaley, for Gravely and others. Wm. Whaley, for McKenzie and others. Dargan, Ch. The plaintiif's testator, William M. Eddings, in his lifetime, contracted a debt with the defendants, Gregg, Hay- den & Co., who were jewellers, to the amount of about $2,400, for goods and wares in their line of business. For the purpose, they say, " of giving greater security to their claim against the said Wm. M. Eddings," they, the said Gregg, Hayden & Co., with the as- sent of William M. Eddings, effected an insurance on his life, with a Boston insurance company. The policy was for the term of four years, and the sum of $2,500. It bore date the 13th Oct. 1848. The premium on the policy, amounting to $58, was paid by Gregg, Hayden & Co. It was negotiated in the name of William M. Ed- dings, who, in pursuance of a previous agreement, assigned the pol- icy to Gregg, Hayden & Co. The premium was charged in their books against Eddings, but no part of it has ever been paid by him, or his legal representative. Since the death of Eddings, Gregg, Hayden & Co. have received from the insurance company $2,500, with the consent of the administrator, and under an agreement with him that the said sum of $2,500 shall be held by them, sub- JANUARY, 1858. 705 Rivers v. Gregg. ject to the order of this cpurt in the premises. They claim only so much of the net proceeds of the said policy as will be sufficient to satisfy their demands against William M. Eddings, and offer to pay over the balance to the administrator. If they retain the net proceeds of the policy they have been overpaid. The defendants, Edgerton & Richards, also having demands against William M. Eddings, to the amount of 14,531.71, effected an insurance upon his life, for the same purposes as in the case of Gregg, Hayden & Co., in the New York Life Insurance Company, for the sum of |2,000. The policy was dated the 15th March, 1847. It was taken in the name of Edgerton & Richards, who paid out of their own funds the premium and expenses for four years. It was all done with the knowledge and consent of William M. Eddings. After his death, they received from the Life In- surance Company of New York the sum of $1,983.87, according to the terms and condition of the policy. They paid in the way of premium, &c., during the four years, the sum of f 103. The net proceeds of the policy were $1,880.87^ — a sum not sufficient to pay one half of their claim. The administrator claims the whole net proceeds of both these policies, as belonging to the estate of William M. Eddings. I have come to a different conclusion. I think that these parties, having negotiated these policies at their own expense, and for their own benefit and security, are fairly entitled to have the net proceeds applied in the way intended, namely, as payments upon their claims against Eddings. They were obviously intended as collateral securities. A third party, who is sui Juris, may become bound for the debt of an infant, though the infant should be discharged. And 1 apprehend it would make no difference whether the third party were a corporation or a natural person. If the creditor of an in- fant, for a consideration paid by himself, obtains a guaranty of the infant's debt from a third party, I see no reason why such third party should not be bound, nor why the creditor should not have the benefit of his bargain. This, I think, is the true nature of the transaction. The infant certainly is not entitled to the funds thence arising. This would be to give him the whole of the cred- itor's goods, on the plea of infancy, and, as a premium on the plea, the whole proceeds of the policies. It is ordered and decreed, that the exception of Gregg, Hayden & Co. to the master's report on this point be sustained ; that the 45 706 COURT OF APPEALS OF SOUTH CAROLINA. Bivers v. Gregg. claim of the said Gregg, Hayden & Co. against Wm. M. Eddings be paid out of the net proceeds of the policy received by them, with interest on their claim till they received payment from the said Life Insurance Company ; and that they pay over the balance, if any, to the administrator of William M. Eddings, which they have oifered to do in their answer. It is further ordered and decreed, that the exception to the master's report of Edgerton & Richards, which relates to the proceeds of the policy of insurance received by them, be sustained, and that the said Edgerton & Richards be allowed to retain the proceeds of the said policy, as a payment on their account against the said William M. Eddings. It is further ordered and decreed, that the master's report be conformed to this decree. It is further ordered and decreed, that all the parties in this cause pay each his own costs ; except the administrator with the will annexed of William M. Eddings, whose costs shall be charged upon the estate. TENNESSEE. Makt Rison et al. vs. T. W. WitkiNsoN & Co. (3 Sneed, 565. Supreme Court, April, 1856.) Atsignment of policy. Sights of widow. — The act of 1846, c. 216, § 3, though intended to prefer the widow and children of the insured to creditors, can only apply where the claim has heen left undisposed of by the insured. His power over it during his life is not at all affected by the act, but continues as ample and unrestricted as it would have been if the act had not been passed. Assignment. Sights of creators. — A insured his life for f 2,000, and made two payments on the same. He then assigned the policy to B as security for a debt, and B thereafter paid the premiums regularly until the death of A, and then collected the insurance. He claimed the right to the whole amount of this money. A's widow and children also claimed the whole, disputing the legality of the assignment, ffeld, that the assignment was legal, but that B was entitled to no more than was sufficient to pay the debt of A, and reimburse B in the amount of premiums paid ; and that the rest belonged to the widow and children. The case is stated in the opinion. J. 0. Jones ^ 0. B. Frazer, for complainants. Wright ^ Ourrin, for defendants. Cakeuthers, J. In the month of June, 1847, J. M. Rison ef- fected an insurance of $2,000 upon his hfe in the Mutual Life In- surance Company of New York, through its agent, A. S. Caldwell, at Memphis, for the term of seven years, at a certain annual pre- mium. He died intestate in Februa,ry, 1854, leaving the com- plainants, consisting of his wife and children. In 1848 this policy was transferred with the assent of the agent by assignment to the defendants, as collateral security for a note of fl,097 given for a bill of goods then purchased from them. The said Rison having failed after the first year to pay the annual premiums, the policy would have been forfeited and lost but for the acts of the defend- ants in discharging them at the proper times, down to the death. After the death of Rison, the defendants received as assignees $1,980 upon said policy, and claimed to hold not only the amount of the note, with interest, which it was intended to secure, and the amount advanced by them for premiums, to keep the policy alive, but also the balance of the amount received, except so much as 708 SUPREME COURT OF TENNESSEE. Eison V. Wilkinson. they might voluntarily donate to the family in their poverty. The complainants, on the other hand, claim the whole amount, without paying the note of |1,097, or the said advances upon the premi- ums. This bill is grounded upon the provisions of the act of 1846, 0. 216, § 3 ; Nich. Sup. 280. It is in these words : » That from and after the passage of this act, whenever any married woman may cause a life insurance to be effected upon her husband's life, the said insurance shall in no case be subject to execution or at- tachment for the debts of said husband, but the same shall inure to the benefit of the widow and heirs of said husband. And fur- ther, that any husband may effect a life insurance on his own life, and the same shall in all cases inure to the benefit of hi^ widow and heirs, in the present rates of distribution, without being in any manner subject to the debts of said husband, whether by attach- ment, execution, or otherwise." It is contended that this act operates as a settlement upon the widow and children of the insured, and cannot be divested from their use and benefit by any act of his, or his creditors. It would be more difficult to meet this argument, if indeed it could be suc- cessfully met at all, if the policy had expressly provided that in the event of death, the sum secured should be paid to the widow and children. But this is an ordinary policy upon his life, without any special stipulations of that or any other kind. So the case is to be decided upon the construction of the act alone. Its phraseology is very strong and forcible in favor of the rights of the widow, in exclusion of creditors. But it must have given to it a sensible construction, promotive of the intention of the legislature. With- out this act the insurance money would go to the personal repre- sentative of the deceased, and constitute assets in his hands, subject to the payment of debts. Before the act, creditors would have preference over the family, but since, the latter have the exclusive claim to the particular fund. The wisdom and humanity of the law may be admitted, but surely it was not intended to divest the insured, while he lived, of the right of disposing of his own as he pleased, so as to bind those who might come after him, and stand in his shoes. This would be the effect of the construction contended for by the com- plainants. We think that nothing more is intended by the act, and that no other operation can be given to it, than to prevent a fund of this DECEMBER, 1857. 709 Mutual Protection Insurance Company v. Hamilton. kind from passing into the hands of the administrator with the other effects of the insured, in favor of the widow and children, or, in other words, to prefer them to creditors to that extent. But it can only apply where the claim remains undisposed of by the deceased. His power over it during his life is not at all affected by the act, but continues as ample and unrestricted as before. This method is often resorted to, as in this case, by men in slen- der circumstances, whose ability to pay is supposed to depend upon their personal exertions, and it cannot be supposed that the legisla- ture intended to deprive poor men of this mode of obtaining credit, and thereby getting into business, and making a living for them- selves and families. We do not feel constrained so to construe the language used in the act before us, but are of opinion that to give it such an opera- tion would be going beyond the objects and intention of the legis- lature. But the transfer was only made to secure the debt of the defend- ants, and they can retain no more of the fund than is sufficient for that purpose and to reimburse the amount paid by them in annual premiums ; the balance must go to the complainants. So held the chancellor, and his Decree is affirmed with costs. But see Gould v. Emerson, ante, 258; Wasonv. Colburn, ante, 278. Mutual Protection Insurance Company vs. Hamilton and GORAM. (5 Sneed, 269. Supreme Court, December, 1857.) Assignment of policy. Notice to insurer. — Upon a bill of interpleader filed by a life insur- ance company against the personal representative of the assured and the assignee of the life policy, lteld,that notice of the assignment is not necessary to complete the right of the assignee to receive the insurance money from the insurer. And this is true though the following words are written at the foot of the policy : " N. B. If assigned, notice to be given to the company." The case is stated in the opinion. Hwing Sj- Cooper, for complainant and Hamilton. Meigs ^ F. B. Fogg, for Goram. McKiNNET, J. This was a bill of interpleader. The facts are these : On the 2d of April, 1849, a policy of insurance on the life of Thomas Hamilton, for the term of life, in the amount of |5,000. 710 SUPREME COURT OF TENNESSEE. Mutual Protection Insurance Company v. Hamilton. in consideration of the annual premium of $141.05, underwritten by the complainant, an incorporated company, organized on the principle of mutual assurance, was issued to said Hamilton. By the express terms of the policy, the company agree " to, and with the assured, his executors, administrators, and assigns, well and truly to pay, or cause to be paid, the said sum insured, to the as- sured, his executors, administrators, or assigns, within sixty days after due notice and proof of the death of the said -Thomas Ham- ilton." Shortly afterwards, the assured assigned and transferred the pol- icy, by a writing under seal, made upon the margin of the policy, in the following words : "I hereby make over this policy of insurance on my life to Adelaide Eliza Goram, a colored woman ; and desire that, at my death, the amount, say five thousand dollars, be paid to her. Wit- ness my hand and seal, this 22d day of August, 1849. " Thomas Hamilton, [l. s.] " Subsequently, on the 20th day of February, 1850, this transfer was acknowledged by Hamilton, in the presence of an attesting witness, as appears by an indorsement on the face of the policy. There also appears on the face of the policy the following written indorsement: " Pay as above. New Orleans, 12th July, 1854. Thos. Hamilton." Thomas Hamilton, the assured, died on the 25th of August, 1855. Shortly after his death, the defendant, [Goram,] as as- signee of the policy,' (who resides in New Orleans,) presented the same to the oiEce, and demanded payment of the insurance money. The defendant, Andrew Hamilton, who took out letters of admin- istration on the estate of the deceased, in Davidson County, Ten- nessee, also set up a claim to said sum of five thousand dollars, and demanded payment of the same fi-om the oflScej To adjust these conflicting claims, and to have it judicially de- termined who was entitled to the money, the company, for its own protection, brought this bill, to which both claimants are parties. The defendant, Goram, states in her answer, and the statement is uncontroverted, that said policy was delivered to her by the as- sured, " on or about the date of said assignment, and has been ever since in her possession and custody." The defendant, Hamilton, as administrator, states in his answer, that the estate of th«! deceased will probably turn out to be insol- DECEMBER, 1857. 711 Mutual Protection Insurance Company v. Hamilton. vent, and that the sum in controversy will be required for the pay- ment of debts. And he seeks to repel the claim of the other de- fendant on several grounds. Because, as is alleged, the assignment was made " without the knowledge or consent of the company," and no notice thereof was given to the office until after the death of the assured ; and also, becausCj as he believes, the assignment was made without any- consideration valid in law ; and was, there- fore, inoperative, at least as against creditors of the estate of the assured ; and likewise, because he does not admit that the defend- ant, Goram, is a free person, so as to be capable in law of taking any interest under the assignment. The contest in the present case, it will be observed, is alone between the personal representa- tive and the assignee of the . assured. And it is further to be noticed, that neither in the charter of incorporation, nor by any by-law of the company, nor by anything on the face of the policy, is it required that notice of the assignment of the policy shall be given to the office.^ The question as to the necessity of the knowledge and assent of the underwriters to the assignment of a policy, is very different, with reference to fire policfes, from life and marine policies. The assent of the insurer to the assignment, in order to give it validity as against the office, in the case of a fire policy, is generallj-^ ad- mitted ; and notice of the assignment must therefore be given, or the assignee will not be entitled to demand the insurance money. The reason of this requirement in fire policies is obvious. In such cases, Xha personal character of the assured, for integrity and pru- dence, is a most important consideration. In the language of the books, there is infused into the contract of fire insurance something of the nature of a choice of persons. The insurer might be quite willing to underwrite a policy for one person, but not for another of different character and habits. The known reputation of the assured might be an ample guaranty that he would not secretly destroy his own property, with a view to recover the insurance money, while that of the assignee might furnish no such assurance. But no such reason exists in the case of an insurance on the life of an individual, nor in the case of a marine policy. And in the latter cases, the assent of the insurer to the assignment of the pol- icy, or notice of such assignment, is not indispensabje, in order to 1 But see the opinion upon a motion to reconsider, ^os(, 715, 712 SUPREME COURT OF TENNESSEE. Mutual Protection Insurance Company v. Hamilton. entitle the assignee of the policy to recover the money from the insurer. See Angell on Insurance, §§ 199, 200 ; 3 Maryland, 341, 353.1 We are of opinion therefore, that as between the insurer and the assignee of a life policy, notice of the assignment is not required to complete the right of the latter to receive the insurance money from the former. Upon principle, as it seems to us, the right of the assignee must be held to be perfect in a case like the present, by force of the as- signment alone. This must be so, if we are correct in the assump- tion, that by the transfer he becomes instantly invested with the legal interest in the policy, for if he takes nothing more than a mere equitable interest under the assignment, it will perhaps inevitably follow that the debt still continued subject to the order and dispo- sition of the assured, so far, at least, as, after his death, a payment to his persqnal representative, without notice of the assignment, would protect the insurer from paying the money a second time to the assignee. That the assured has an assignable interest, and that a life policy is assignable, admits of no question. This is so ; first, upon the general principle of law applicable to this subject. See Angell on Insurance, § 325. Secondly, it is so by the express stipulation of the contract. By the terms of this policy, the contract is with "tlie assured, his personal representatives and assigns ; " and the prom- ise in fact, and in law, is to pay the money to the personal repre- sentative or. assignee, as the case may be, within sixty days after due notice and proof of the death of the person assured. And thirdly, we incline to the opinion, that a policy in the form of the present one is assignable within the spirit of the act of 1801, ch. 6, § 54, so as to pass the legal interest in the policy, and the money to become due thereon, to the assignee, and entitle him to sue thereon in his own name. By this act, it is declared that upon all bonds, bills, or notes, for specific articles, or: for the performance of any duty, suits may by brought, both in courts of law and equity, in the names of the assignees. The policy before us is not under seal. It is an agreement or promise, in writing, to pay to the per- sonal representative, or assignee of the person assured, the sum of five thousand dollars, within sixty days after the happening of a I Anict 146. DECEMBEE, 1857. 713 Mutual Protection Insurance Company v. Hamilton. certain event, namely, the death of the person to whom the pohcy issued. This is not a note, in the technical sense, but we think it is a note for the performance of a duty, in the enlarged sense in which the word note is used in the statute. It is true that the ultimate liability of the company to pay the insurance money is subject to the contingencies contemplated and provided in the con- tract as set forth in the policy ; and something is to be done by the assured, or by his assignee, from time to time, namely, the payment of the annual premiums, in order to keep the policy in force. But upon the death of the assured all contingency is at an end, and the payment of the money becomes an absolute, unconditional obliga- tion on the part of the insurer, and the policy becomes invested with all the essential properties of a promissory note, or the legal evidence of debt. And if we are right in assuming, as we have, that the legal effect of the assignment of the policy was to invest the assignee with the legal interest in the policy, then the conclu- sion is demonstrated, that he alone, as against the personal repre- sentative, creditors, and all other persons, is entitled to receive the money due on the policy. In this view, the assignee of the policy stands upon the same footing as the assignee of a bond, bill, or note, and, like them, it may be assigned without the knowledge and against the will of the debtor. In this view, there is no more force in the argument that notice of the assignment is necessary to pro- tect the underwriter from the hazard of paying the money twice, than that such notice is necessary to protect the title of the as- signee, by taking the policy out of the possession and disposition of the person assured. We have seen that the assignment, ipso facto, effects the latter object, by divesting the assured of all interest in, and power of dis- position over the policy. And as regards the underwriter, no such hazard can be supposed to exist. He cannot be required to pay the insurance money without the production of the policy, if in exist- ence ; or, if lost, without sufficient proof of that fact. Neither can he be required to pay, without sufficient proof that the person de- manding payment occupies the relation or character assumed by him ; and that he is by law, as the rightful assignee of the policy, or personal representative, entitled to receive the money. Such being the law, the underwriter is exposed to no risk, except such as may be the result of his own carelessness, against which the law entitles him to no protection. 714 SUPREME COURT OF TENNESSEE. Mutual Protection Insurance Company v. Hamilton. We have been referred to several cases in English books, for the purpose of showing that, as against the assignees in bankruptcy of the person assured, notice of the prior assignment of a life policy is necessary. These cases proceed upon the construction and effect of certain clauses of the bankrupt and insolvent debtors acts, which vest in the assignees all the property, including securities, such as policies of insurance, that may happen, with the consent and per- mission of the true owners, to be in the order and disposition of the persons falling under the operation of those statutes. These cases, of course, have but little application to the case before us. We have also been referred to the doctrine applicable to the assignment of equitaile rights, and choses in action, as recognized by this court in Olodfelter v. Oox, 1 Sneed, 830, 339 ; according to which, in a contest between different assignees of the same equitable property, he will be preferred who has first given notice of his assignment to the debtor. And, consequently, a second assignee of a chose in ac- tion, or incumbrance upon equitable property, without notice of the prior assignment or incumbrance, by giving notice to the debtor, or trustees of the property, will secure a preference over a prior assignee or incumbrance who has neglected to give such notice, the title of the latter being incomplete for want of such notice. See also 1 Story's Eq. §§ 421, 426, note 2. But this doctrine applies to the transfer of equitable interests, and consequently has no bearing upon assignments of negotiable instruments, or of instruments which, though not negotiable by the law merchant, are made assignable by law, so as to pass the legal interest, and entitle the assignee to sue in his own name. The second ground upon which the claim of the assignee is attempted to be resisted, is that the assignment was voluntary and without consideration. This objection cannot prevail. The view we have taken of the case brings it to a contest, simply, between the oflSce and the as- . signee of the policy. And without any intimation of an opinion upon the question, whether the insurer could avail himself of this objection as against the assignee of the policy, it is sufficient for the determination of the present case, that the assignment, being under seal, a consideration is to be presumed, and there is no proof in the record to repel this presumption. In the third place, it is said that the defendant, Adelaide, has fiiiled to establish the fact that she is a, free woman; and, there- DECEMBER, 1857. 715 Mutual Protection Insurance Company ». Hamilton. fore, no decree can be made in her favor. Upon the state of the case, as presented by the pleadings, for there is no proof upon the point, the question of defendant's freedom cannot properly be re- garded as in issue. The bill, in one part of it, states that the de- fendant, " claiming to be a free woman, presented the original pol- icy" to the office, and demanded payment of the money, &c. And in another part, it is stated that the administrator denied her right, upon the ground, among others, that " she was not a free woman capable of taking the fund." No other reference is made to the matter in any part of the bill. These incidental allusions to the status of the defendant were scarcely sufficient, perhaps, to have called for an answer touching her social condition, much less to have put her upon proof in relation to it ; yet she does answer as to this matter, and denying the right to raise any such question against her, she avers that she is a free woman, capable in law of taking and holding property, and of suing and being sued. And there being no proof upon this point, the objection must of course fall. All the other objections urged against the right of the assignee, resolve themselves into one or other of the grounds before noticed. The decree will he affirmed. After the foregoing judgment in this case had been announced, it was ascertained that at the foot of the original policy the follow- ing words were written : " N. B. If assigned, notice to be given the company." Which words having been omitted by the clerk in the transcript fiirnished for this court, and on which the case was heard and de- cided, we are now asked to reconsider the case, in view of the sup- posed effect to which these words are entitled. If the contest here were between the creditors of the assured and the assignee of the policy, we are not prepared to say whether or not these words, in- troduced as they are, not by way of condition in the body of the policy, but merely as a note at the bottom, would affect the deter- mination of the question. But in the case before us, where the 1 It is not stated who delivered the opinion here given, but it is probable that it Was delivered by McKinney, J. ; the style is his, and by courtesy he would be expected to finish the case. 716 SUPREME COURT OF TENNESSEE. Mutual Protection Insurance Company v. Hamilton. question is merely between the assignee and the office, the words referred to can have no influence on the decision of the case. The requirement that the company should have notice of the assign- ment, could have had no other object except the protection of the company. The only reason for such notice would be to secure the company against the hazard of loss from paying the money to the personal representative of the assured, and being compelled to pay a second time to the assignee. What might have been the conse- quences to the assignee if the money had been paid to the personal representative, or if it had been attached by the creditors before the knowledge of the assignment on the part of the company, we need not stop to consider, as neither of these things occurred in the present case. And as the company sustained no possible injury for want of such notice, the omission cannot be set up as a defence against the right of the assignee to recover the money. Nor is any such ground assumed in the bill in opposition to the right of the assignee. See 3 Maryland Rep. 341,^ cited above. The Judgment will remain unchanged. 1 New York Life Insurance Co. v. Flack, ante, 146. VERMONT. Arnold E. Coon, administrator of Edwin W. Coon, vs. Jonah Swan and Avert Meeker. (30 Vt. 6. Supreme Court, December, 1856.) Umry. — A applied to B for a loan of money, offering to give his note for double tlie amount desired, and also to procure insurance upon his life as security in double the sum loaned, under an agreement that B should advance the money necessary to procure the policy, which was to be included in the note and to be repaid by A, who was also to pay all future premiums. The offer was accepted as made, the money paid to A, and the in- surance effected. A died within a year afterwards, and B received the insurance money in full. In an action by the administrator of A to recover the excess above the actual sum loaned, expenses of effecting insurance and interest, held, that the note was usurious, and that the administrator was entitled to such excess. Held, also, that B could not in- terpose the objection that the company wer^ not bound to pay to him anything more than his actual claim against A, and that therefore the administrator could not recover the ex- cess. Assumpsit, before Peck, J., November term, 1856. Plaintiff's testimony tended to show that Edwin W. Coon, the •plaintifF's intestate, applied to the defendants for a loan, of money to go to California, and proposed to give them a note for double the amount of money furnished to him, and also to procure a policy of insurance upon his life as security for the money, under an agree- ment that the defendants were also to advance the money neces- sary to procure the policy, which was to be included in the note and to be repaid by Coon, and that Coon was to pay all future premiums. That the defendants let him have f 300 and paid for said policy of insurance, and also some extra interest, being obliged to borrow the money themselves, which extra interest and the cost of the policy amounted to f 31. That the intestate thereupon exe- cuted to the defendants his promissory note for $681, and that a policy of insurance for the sum of $600 was effected according to the agreement upon the intestate's life in the name of the defend- ants. That said Edwin then went to California and died there within a year after the date of the policy, and that the defendants shortly afterwards received the full amount of the insurance. To the admission of all this testimony the defendants objected, but their objection was overruled ; to which they excepted. 718 SUPREME COURT OF VERMONT. Coon V. Swan. The plaintiff also introduced in evidence the poh'cy, with the following indorsement thereon, signed by the insured : " I hereby agree to pay all the assessments on the within named policy for seven years, or as long as the applicants in said policy hold the same as security for money received." Hector Adams, an attorney at law, testified to having secured the payment of the insurance money in full to the defendants, and that they offered to pay him for doing so ; but that he declined receiving anything, and stated that he had not been engaged but acted gratuitously as a neighbor in the matter. The defendants objected to this testimony as being privileged communications. Defendants offered to show that when the intestate applied to them for money they told him they had none, whereupon he asked them to get it for him, saying that he would do as above stated ; that they thereupon borrowed the money, handed it to the intes- tate, and took his note in accordance with the agreement. That they applied for the policy in their own name, and paid for it out of their own money, and the expense of the policy and the extra interest paid by them were included in the note. To this testimony the plaintiff objected, and the court ruled it out as immaterial, and instructed the jury, among other things, that, if the plaintiff's testimony was believed, he was entitled to re- cover as usury the balance of the money received of the said insur- ance company by the defendants, after deducting sufficient to pay the defendants the three hundred dollars and the money paid by them for the policy, and interest thereon up to the time of the pay- ment to them by the company. The defendants excepted. ff. B. Smith, for the defendants. 1. Plaintiff cannot recover anything as usury unless he has act- ually paid something. Stewart v. Downef, 8 Vt. 320. Thatcher V. O-ammon, 12 Mass. 267, 268. Day v. Oummings, 19 "Vt. 496. 2. The company were not bound to pay anything more than the actual claim of defendants against the intestate ; and all payments beyond that amount were in their own wrong and cannot be re- covered by the plaintiff. Grodsall v. Boldero, 9 East, 72. Ellis on Ins. (Shaw's ed.) 239. Menson v. Blatihwell, 4 Hare, 434. 3. The fact that Adams did the business confided to him gratu- itously does not permit him to expose the secrets of his client. Peek ^ Harvey, for the plaintiff. 1. The note was usurious, and the defendants are accountable DECEMBER, 1856. 719 Coon V. Swan. for the excess of the insurance above the debt. King v. State Mut. T. Ins. Co. 7 Gush. 1. Roberts v. Traders' Ins. Qo. 17 Wend. 631. Tyler v. M^na Ins. Co. 16 Wend. 386. Carpenter- v. Providence Ins. Co. 16 Peters, 495. 2. Adams' testimony was properly admitted. 4 E. C. L. 1. 2 B. & C. 745. 5 C. & P. 592. 6 Idem, 368. 6 M. & W. 546. 1 Gaines, 157. 12 Pick. 89. 2 Vt. 185. 4 Vt. 612. • 25 Vt. 47. 1 G. & P. 158. 3 Idem, 518. 1 Phil. Ev. 143, 147. 1 Greenl. Ev. 244. 1 Gow. & Hill's Notes, 275, 283. 4 Term, 432. Bennett, J. The defendants in this case held the policy of in- sm-ance in trust for the intestate, and as collateral security for the payment of the note. The money when paid on the policy, in equity and good conscience, belonged to the estate of the intestate ; and from the case made in the bill of exceptions the defendants can have no legal or equitable right to retain any portion of the money paid them by the insurance company, to pay the usurious interest included in the note. The money was a fund raised at the ex- pense of the intestate, and placed in the hands of the defendants for a special purpose, and that purpose having been accomplished so far as the defendants had a legal right to have it accomphshed, they cannot retain the surplus for the sake of paying the usury reserved in the note. There was no consideration to give a right to retain any money to pay the usury reserved in it. See 7 Gush- ing, 6. It may be that the insurance company could not have been compelled to pay on the policy a sum beyond the defendants' real interest against the intestate ; ^ yet be that as it may, they hav- ing paid it under a claim of right, the payment would be regarded as voluntary, and the surplus could not be recovered back, and of course the defendants could not interpose an objection to the plain- tiff's recovery upon any such ground. To create a right of privilege it is not enough that the person called as a witness should have been an attorney. The relation of attorney and client must have existed, (or there must have been at least good reason to suppose it existed,) and the communications must have been of a confidential and professional character to bring them within the reason of the rule which should exclude them upon grounds of public policy. The counsel or attorney should be acting for the time being in the character of legal ad- viser, or at least the party should have good reason to suppose he 1 But see note to Lord v. DaU, ante, 158. 720 SUPREME COURT OF VERMONT. Coon V. Swan. wa? SO acting. The witness in this case says that he did not act in his consultation with the party as an attorney, but simply as a neighbor, and that he neither charged or expected any compensa- tion, and there is nothing in the case to show that the party under- stood it in any other light at the time. We think, then, Mr. A.dams was properly admitted as a witness. The Judgment of the cmmlAj court is affirmed. WISCONSIN. Clark, by his guardian, vs. Durand. (12 Wis. 223. Supreme Court, June, 1860.) Amgnment of life policy. — A insured her life for tlie benefit of her son, as a voluntary pro-' vision for him. The policy was made out in the name of B as guardian of A's son. B loaned A the money to pay the first premium, and also paid several succeeding premi- ums. A then went to B and said she could not keep up the premiums and was going to abandon the policj', and that he, B, might have it if he would release her from the pay- ment of the back premiums and keep the policy up thereafter. B took the policy and paid the premiums until the death of A, when the company paid to him the insurance money, for which he gave a receipt as guardian of A's son. Held, first, that there was a valid assignment of the policy to B; secondly, that the son of A could not maintain an action against B for the'insurance money, though the policy and receipt represented B as his guardian. The case is sufficiently stated in the head note and in the opin- ion. The circuit court instructed the jury in substance as follows : 1. If those who alone were interested in the policy voluntarily abandoned it, and consented that the defendant might take the pol- icy and keep it up, and have the benefit of the same, the claim of the party thus abandoning the policy is at an end. If the party whose duty it was to make the payment and keep up the policy, surrendered it to the defendant, consenting to a delivery of the same, a court of equity would aflFord the relief necessary to do equity. The plaintiff excepted to this instruction. 2. If the jury believe that the policy was procured by the mother of the plaintiff, at her own expense, and of her own voli- tion, and she for a time caused the premiums to be paid, and finally changed her mind, and abandoned and surrendered the policy to the defendant, to be kept up by him or allowed to forfeit, as he pleased, and if the jury find that the defendant did, at the request of plaintiff's mother, abandon all claims he had against her, and did take upon himself the risk of paying the premiums and keeping the policy alive, until the insured died, he is equitably entitled to the avails of the policy. Whether his claim, was in law sufficient to 46 722 SUPREME COURT OF WISCONSIN. Clark V. Durand. enable him to recover his equitable rights as against the insurance company is a question between the defendant and the insurance company. And if the* company paid the money to the defendant, he may lawfully hold the same until the plaintiff satisfies you that he, or some one else for him, has so far complied with the rules of the company as to secure the benefits to arise therefrom to the plaintiff. The plaintiff excepted to this instruction. 3. A written assignment of a policy of insurance is not abso- lutely necessary to pass the benefits thereof to a creditor, but this may be done by a delivery and deposit of the policy for tlie pur- pose of an assignment, without a formal written assignment ; and this, too, when the assured is to continue to pay the premiums. The plaintiiF excepted to this instruction. 4. Any transaction which gives to a creditor of the insured a right to payment out of the insurance, will be a sufficient assign- ment, unless the by-laws, rules, and regulations of the company require something more. Plaintiff's counsel requested the court to insttruct.the jury that Henry W. Clark, the plaintiflF, was the real owner of the policy of insurance, and that Margaret Ann Clark could not make a valid assignment of it ; which instruction the court refused to give, and the plaintiff excepted to the refusal. Verdict and judgment for defendant. Strong ^ Fuller, for appellant. 1. There was no contract for an assignment sufficiently definite to be recognized by a court. 2. If there ever was such contract, it was a different one from that set up in the answer. 3. If there was such a contract, it was never executed. There was no written assignment, no notice to the company of any as- signment, no change of possession of the pohcy. The premiums, in each instance, were paid in the same manner, at the same place, and charged to the same account. There was no release of Dn- rand's account, and therefore no consideration for the assignment. 4. Mrs. Clark had not the legal power to assign the policy. 5. The defendant, acting as guardian, could not purchase the property of his ward. Gary ^ Pratt, for respondent. 1. The party procuring a life policy may sell or dispose of it, or abandon it, at pleasure. Angell on Fire & Life Ins. § 332. Q-odsal V. Wehh, 2 Keen, Cb. 99. JUNE, 1860. 723 Clark V. Durand. 2. No formal assignment was necessary. A mere deposit as se- curity is sufficient. Angell on Fire & Life Ins. § 80. 11 Mees- & Wels. 10. Wells v. Archer, 10 Serg. & R. 412, 413. Dixon, C. J. This action was, commenced, and if maintainable at all, can only be maintained upon the theory, that the plaintiff, as the cestui que trust, or party beneficially interested, acquired, dur- ing the lifetime of Mrs. Clark, an actual equitable interest in the policy, and the moneys thereby secured and agreed to be paid on her death. She effected the insurance on her own life. The pol- icy sprang from an agreement to which she and the insurance com- pany were the' real parties ; and although the defendant, as the guardian of the plaintiff, was nominally the assured, yet during her life, and until she transferred it, she was the only person having any direct pecuniary interest in it. She received, and, until the trans- fer and delivery to the defendant, held it in her possession, and with her own funds, or those procured by her from the defendant, paid the quarterly premiums, as they became due upon it. The true criterion by -v^hich to determine whether the plaintiff liad any interest in the moneys received upon the policy, would seem to be, whether, during her life, he had such an interest in it as would have enabled him to compel Mrs. Clark, or the defendant as nominal trustee, to keep up the premiums, upon the prompt ])ayraent of which its validity and value depended, or as would have enabled him to restrain or prevent her and the defendant from entering into and consummating the bargain which they did in relation to it. It is very evident that he was no party to the policy, or the agreement by which it was procured. The only parties, real and nominal, were the defendant, Mrs. Clark, and the company. He fuinished no part of the consideration upon which the policy was issued. If it was her intention, at the time she procured it, as it undoubtedly was, to have the money due upon it at her decease paid over to him, or applied to his benefit, yet she was under no obligation, legal or equitable, to obtain it, or to keep it up after it was ob- tained. Neither she nor the defendant had made any contract or agreement with him, upon a valuable consideration or otherwise, to procure or to keep up such insurance. So far as he was concerned, it was a mere proposed gratuity or gift, a voluntary thing, which they were in no way bound to do, and which they might do or cease to do, as best suited their convenience or pleasure. He was a mere volunteer, not having any present beneficial interest, but 724 SUPREME COURT OF WISCONSIN. Clark V. Durand. who, it was intended at one time, should, on the happening of many contingencies, be so interested on some future occasion. He had no vested right in the policy or moneys secured by it, and could have none until after the death of Mrs. Clark, he surviving her ; and then only in the event of the contract, and the intention of the parties, remaining the same, and of her, or of some other per- son in his behalf, having kept up the premiums. If it was a trust in his behalf, or by which it was intended that he should be bene- fited, it was executory and not executed ; and it is well settled that courts will not interfere to enforce an executory trust at the instance of a volunteer. It seems quite clear, therefore, that dur- ing the lifetime of Mrs. Clark the plaintiff could neither have com- pelled the payment of the premiums, nor have prevented her from passing the policy over absolutely to the defendant. Considering the policy, as it was in fact, an executory contract between the company and Mrs. Clark, and the defendant consenting to act as trustee, no reason can be perceived why it was not, like every other executory agreement, subject to such disposition,'changes, and mod- ifications, as the several parties to it might see fit or consent to make, and why Mrs. Clark, having changed her mind in regard to bestowing upon the plaintiff the benefits expected from it, or feeling herself unable to meet the premiums, might not, with the assent of the company, transfer it to the defendant, to be held by him for his sole use and benefit, he agreeing to pay the premiums. This the jury has found she did do, and as evidence of the assent of the company, it not only appears that they, for a long period of time, received from him the premiums, but also, on her death, actually paid over to him the money thereby secured. The record discloses no errors for which, in our opinion, the judgment of the circuit court ought to be reversed, and it is there- fore affirmed, with costs. Note. — In Cook v. Black, 1 Hare, Ch. 390, (1842,) a debtor had effected an insurance on his life, one condition of the policy being to the effect that if there should be a bona fide assignment of the same the assignee should have the ben- efit of it. He deposited the policy with the creditor, accompanied by a letter in which he promised to assign the policy whenever requested to do so as a security for the debt. No notice was given to the company. Held, that inas- much as the deposit of the policy, and the agreement to assign it, constituted in equity a valid assignment as between the parties thereto, it was also an effect- ual assignment against the insurers. Godsal V. Webb, 2 Keen, Ch. 99, (1837,) was a voluntary aissignment to a rela- JANUARY, 1866. 725 Bockwell V. Mutual Life Insurauce Company of Wisconsin. tive, who paid the premiums during his life, and by will appointed G. his exec- utor and residuary legatee. G. paid the premiums thereafter, and received the insurance money on the death of the assured. On a bill in equity by the next of kin of the assured against G., and against the executor and residuary legatee of the assured, the court held the assignment to be valid, and that G. was entitled to the money. Fortescue v. Barnett, 3 Mylne & Keen 36, (1835,) was a voluntary assign- ment, by deed, of a policy of life insurance to trustees for the benefit of the assignor's sister and children. The deed was delivered to the trustees but the policy retained by the assignor. Afterwards for a valuable consideration the policy with a bonus upon it was surrendered by the assignor to the insurer. On a bill filed by the surviving trustee to have the value of the policy replaced, the court held, that upon the delivery of the deed no act remained to be done by the grantor to give efiect to his assignment of the policy, and that he was bound to give security to the amount of the value of the policy assigned by the deed. See Powles v. Innes, 11 Mees. & Wels. 10. See also Kerman v. Howard, post, 728. Rockwell vs. The Mutual Life Insueance Company of Wisconsin. (20 Wis. 335. Supreme Court, January, 1866.) Receipt of premium overdue. Waiver. — In an action upon a life policy it appeared that the insured sent his note and a draft for the payment of premium past due. The office col- lected the draft,*and the secretary of the company wrote the assured acknowledging re- ceipt of the note and draft, and further said: " As this is past due, it will accord with our rules for you to send us a certificate of good health, and in your case we will be satis- ded with your own. You did not instruct me where to send the renewal receipt, and so I have not inclosed it." The assured died without having sent any certificate of good health. £feld, that it is not clear that the deceased did or could understand from this letter that his money was received only on condition of his furnishing a certificate of good health, and that the plaintiff should not have been nonsuited on this evidence. This was an action upon a policy of insurance on the life of John S. Rockwell, plaintiff's husband, deceased. Defence that the plaintiff had failed to pay the annual premium last preceding the death of the assured ; the condition of the policy being that upon such a default in payment it should be forfeited. The plain- tiff claimed that the policy had been renewed, the premium having been paid to and received by the company at a subsequent date ; while the company claimed that its acceptance of the premium and agreement to renew the policy were conditioned upon being fur- nished with a certificate of the good health of the assured ; which certificate was not furnished. The circuit court nonsuited the plaintiff and she appealed. 726 SUPREME COURT OF WISCONSIN. Eockwell V. Mutual Life Insurance Company of Wisconsin. &iU ^ Barber, for appellant, cited Sheldon v.- Ins. Co. 25 Conn. 207, 220 ;i Bouton v. Ins. Co. Idem, 542, 550 ;2 Ki/. Mut. Ins. Co. V. Jenhs, 5 Ind. 97 ; ^ BucJebee v. Ins. Co. 18 Barb. 541 ; * Buse V. Ins. Co. 26 Idem, 556 ; ^ Trustees, §-c. v. Ins. Co. 19 N. Y. 305 ; Wing v. Harvey, 27 Eng. L. & Eq. 140 ; McUwen v. Ins. Co. 5 Hill, 17, 101 ; Mayer v. Webster, 18 Wis. 393 ; Beal v. Jws. Co. 16 Idem, 241 ; Keeler v. ims. <7o. Jiem, 523 ; 2 Parsons on Cont. 487. Palmer ^ Hooker, for respondent, to the point that the policy lapsed on default in payment of the annual premium, cited Ruse v. Ins. Co. 23""N. Y. 516 ; ^ Pritchard v. Life Assurance Society, 3 Com. Bench, N. S. 622 ; (91 E. C. L. 619 ;) Balhy v. Life Ass. Co. 15 Com. Bench, 365, 387; (80 E. C. L. 386 ;) Tarleton v. Staniforth, 5 Term, 695 ; Salvin v. James, 6 East, 571 ; Want v. Blunt, 12 Idem, 183 ; Mut. Ben. Life Ins. Co. v. Buse, 8 Ga. 534 ;^ Acey\. Fernie, 7 Mees. & Wels. 150 ; Angell on Ins. §§ 51, 343, 344*; Phillips on Ins. § 592 ; Ellis & Shaw on Ins. 143, 144. The evidence of waiver must be clear and decisive. Cornell v. Ins. Co. 18 Wis. 387. Lycoming Co. Mut. Ins. Co. v. ScJiollen- berger, 44 Penn. St. 259. Trask v. Ins. Co. 29 Idem, 198. Smith V. Ins. Co. 1 Allen, 297. Boumage v. Ins. Co. 1 Green, (N. J.) 110. Nash V. Ins. Co. 43 Maine, 343. Eastman v. Ins. Co. 45 Maine, 307. Ldwards v. Ins. Co. 3 Gill, 176. St. Louis Ins. Co. v. Kyle, 11 Mo. 278. Inland Ins. Co. v. Stauffer, 33 Penn. St. 397. Brewer v. Ins. Co. 14 Gray, 203. Lothrop v. Jws. Co. 2 Allen, 82. ^aa^er v. Ins. Co. 1 Jc?em, 294. Downer, J. The only ground on which the nonsuit granted in the court below can be sustained is that the plaintiff failed to prove an unconditional renewal of the policy. October 6th, 1862, the company received the note of the assured, and John S. Rock- well's draft payable at the Summit Bank, on which the insurance company received the money. The money and note, if received unconditionally, it is admitted, would have renewed the policy and continued it in force until after the death of Rockwell. It is con- tended that the plaintiffs proved that they were received only upon condition that Rockwell was then in good health. All the evi- dence of such condition is in the letter of the secretary of the com- pany to Mr. Rockwell, in which, after acknowledging the receipt 1 Ante, 27. * Ante, 51. 3 Ante, 101. * Ante, 406. 5 Ante, 467. « Ante, 472. 7 Ante, 83. JANUARY, 1866. 727 Rockwell e. Mutual Life Insurance Company of Wisconsin. of the note and draft to pay the annual premium on the policy, he says : " As this receipt is past due, it will accord with our rules for you to send us a certificate of good health, and in your case we will be satisfied with your own. You did not instruct me where to send the renewal receipt, and so I have not inclosed it." The closing sentence, about sending the renewal receipt, must be re- garded as equivalent to saying that it would have been sent if the secretary had known where to send it ; and that, too, notwithstand- ing there was no proof that Mr. Rockwell was then in good health. It may be said that such renewal receipt, if it had then been sent without the certificate of health, would have been a certificate renewing the policy only on the condition that Mr. Rockwell was then in good health. The rule of the company, if rule there be, is not before us, and we are not informed of tlie terms of that rule ; whether it is that no renewal at all shall be made unless the proof of good health is first made, or whether the renewal may be con- ditional, or whether it is discretionary with the secretaryor officers of the corporation to insist upon the proof or not just as tliey may please. But the question is, whether it is certain from the evi- dence that Mr. Rockwell must have understood, and did under- stand, if he exercised ordinary care, that the^oney and note were received conditionally. For if no such information was given him, the policy was renewed by the company's receiving his money and the note. There is nothing in the evidence to the effect that they would be returned or held subject to the order of Mr. Rockwell if the certificate of good health was not foi-thconiing. But there is an intimation that the renewal receipt would have been sent with- out such certificate if the secretary had known where to send it. The presumption from the evidence is that the company still re- tain both the money and note without even having offered to return them. It is not clear to our minds that Mr. Rockwell did or Could have understood from the letter that his money was re- ceived only on condition of his furnishing the certificate of good health. The nonsuit was wrongly granted. By the Couet. The judgment of the circuit court is reversed, and a venire de novo awarded. 728 SUPREME COURT OF WISCONSIN. Eerman v. Howard. Kerman, an infant, hy her guardian, vs. Howard, administrator, &c., impleaded with The Travellers' Insurance Company. (23 Wis. 108. Supreme Court, June, 1868.) Disposal of life policy by vnU. — Where a husband had effected an insurance upon his life for the benefit of his wife or her legal representatives, and had paid the premiums thereon himself, held, that having survived the wife, he could dispose of the policy by will. The plaintiff was the only child, hy a former hushand, of Ellen Hill, wife of Isaac Hill. Ellen Hill died in Milwaukee, in the evening of February 20, 1867, and Isaac Hill died early the next morning. There were no children by this marriage, but the said Isaac left two children by a former wife, to whom, with the plain- tiff, his step-daughter, he gave, by will, in equal parts, the proceeds of a life insurance policy. The plaintiff claimed the whole amount as sole heir at law of Ellen Hill. The remainder of the case is stated in the opinion. Judgment for the defendant ; from which the plaintiff appealed. Jenkins ^ Elliott, for appellant. "■ Samuel Howard, in person, respondent. Cole, J. We do not deem it necessary to consider the question, so fiilly and ably discussed upon the argument, as to what were the rights of the husband by virtue of his marital relation, either at common law or under our statute of distributions, in the personal property of the wife at her death, whether reduced to possession or not. The controversy in this case is in regard to money paid on a policy of life insurance. Isaac Hill, in his lifetime, procured an insurance on his life, payable, as expressed in the policy, to his wife, " Ellen Hill, or her legal representatives." The policy was deposited with a third party, where it remained until after the death of Mr. and Mrs. Hill. Mrs. Hill died -February 20, 1867, leaving an only child, the infant plaintiff. Her husband survived her but a few hours ; and subsequent to her death, though without any knowledge thereof, by a nuncupative will, attempted to make a disposition of the amount of the policy. And we shall only con- sider the question, whether the husband, having effected an insur- ance on his life for the benefit of his wife, and surviving her, can dispose of the insurance monej' by will or otherwise. On the part of the infant plaintiff it is contended, that where a husband effects an insurance on his own Ufe for the benefit of his wife, and him- JUNE, 1868. 729 Eerman v. Howard. self pays the premiums, since the insurance is effected for the ben- efit of a married woman, the husband, though he survives the wife, has no power or authority whatever over the policy, but that it goes to her children like her separate estate. This position, it is claimed, is sustained by section 6, chapter 95, R. S. That section reads as follows : " Any policy of insurance made by any insurance company on the life of any person, expressed to be for the benefit of a married woman, whether the same be effected by such married woman, or by her husband, or by any other person on her behalf, shall inure to her sole and separate use and benefit, and that of her children, if any, independently of her husband, and of his creditors and representatives, and also independently of any other person effecting the same in her behalf, his creditors and representatives ; and in case of the death of the husband of such married woman, such policy and the benefit thereof shall not go to his executors or administrators, but shall belong to such married woman, and shall be for her sole use and benefit and that of her children." The language of this statute is somewhat peculiar, but still we think it is not difficult of construction. In the first place, we sup- pose it enables the husband to effect a policy of insurance on his own life for the benefit of his wife, which, in case she survives him, goes to her free from his creditors and representatives. It also makes it lawful for a married woman herself, and for her own ben- efit, to effect an insurance on the life of her husband or any third person, which shall belong to her and her children. It was said that a person must have a direct and definite pecuniary interest in the life of another in order to have an insurable interest", (3 Kent, *368,) or that if a direct pecuniary interest was not essential to the validity of the policy, some pecuniary loss or disadvantage must naturally and probably result from the death of the one whose life is insured, to the person obtaining the policy. Miller v. The Eagle Life and Health Insurance Co. 2 E. D. Smith, 268.^ Hoyt v. The New Yorh Insurance Go. 3 Bosw. 440.^ Loomis v. Hagle Life and Health Insurance Co. 6 Gray, 396.^ McKee v. Phoenix Insurance Co. 28 Missouri, 383.* But this statute has authorized a married woman to insure for her benefit the life of any person. And, be- sides, it is obvious that a third person might insure his own life, or insure the life of the husband, for the benefit of the married woman. In these cases, and perliaps in others embraced within the statute, 1 Ante, 375. 2 Ante, 497. 3 Ante, 175. * Ante, 306. 730 SUPREME COURT OF WISCONSIN. Kerman v. Howard. the married woman has the benefit of the policy independently of her husband and his creditors. But when the husband effects a policy on his own life for the benefit of his wife, pays the premiums, and survives her, we do not think the statute intended to deprive him of all power over the policy. Suppose he wished to change the policy in favor of some other person, could he not do it with the consent of the company? He might wish to use or assign the policy as a means of credit or security.^ He might not wish to con- tinue the payments by which the policy was kept alive, and thus abandon the policy altogether. Would he not have the right to discontinue payment of the premiums, and let the policy lapse ? It seems to us that he would, or that he might bequeath or assign the beneficial interest in the policy as he might think proper. This right' to dispose of the policy he would have in the absence of the statute, and we do not think the legislature intended to deprive him of it by that provision. In Clark v. Durand, 12 Wis. 223,^ it was held that a party who procured an insurance on his own life at his own expense, for the benefit of an infant child, as an intended gratuity or voluntary provision for such child, and afterward be- came unwilling or unable to keep up the policy by paying the pre- miums, might, while the policy was in his possession, transfer the same, by delivery, with the assent of the company, to a third party, to be kept up by him' for his own benefit. To the same effect is aodsal V. Webb, 2 Keen, 99, (15 Eng. Ch. 100.) See Angell on Fire and Life Ins. ch. 16. We were referred to the case of Uadie v. Slimmon, 26 N. Y. 9,^ as an Authority in support of the position that a policy of insur- ance on the life of the husband, for the benefit of the wife and children, could not be transferred so as to divest the interest of the wife. In the statement of facts in that case, it appears that the policy recited the payment by Mrs. Eadie of the premium for the first year, and for the like premium to be paid in advance every year thereafter, the company insured the life of her husband, &c. The husband and wife assigned the policy to Slimmon in payment of, or as security for an alleged indebtedness of the husband. Slim- mon threatened Eadie with a criminal prosecution for embezzle- ment, and the policy was assigned through apprehensions of such a prosecution. After the death of the husband Slimmon claimed the money on the policy, but the court hdd the assignment void, 1 See Rison v. Wilkinson, ante, 707. 2 Ante, 721. 3 Ante, 567 FEBRUARY, 1869. 731 Schneider v. Provident Life Insurance Company. having been extorted by a species of forte and coercion which overcame the free agency of the wife. It is like^vise stated, at the close of Mr. Justice Smith's opinion, that the poHcy was taken under the act of 1840 ; that it was the intent of that statute to make such poHcies a security to the family of a married man, and a provision for their use and benefit ; and that this intent would be defeated if they were held assignable by the wife like ordinary choses in action, belonging to her in her own right as her separate property. But as we understand the case, the insurance was ef- fected by the wife at her expense, and the court thought it would be a violation of the spirit of the statute to hold that she could sell or traffic with her policy as though it were realized personal prop- erty or ordinary security for money. The facts of that case, how- ever, are so unlike the present, that the decision cannot be regarded as controlling authority. We are disposed to afBrm the judgment of the county court. By the Court. Judgment affirmed. See Rison v. Wilkinson, ante, 707. But see Gould v. Emerson, ante, 258. Schneider vs. The Provident Life Insurance Company. (24 Wis. 28. Supreme Court, February, 1869.) Accident policy. — Negligence. — In an action upon an accident insurance policy, which pro- vided that the office was not to be liable for any injury to the assured caused by his " wil- fully and wantonly exposing himself to any unnecessary danger or peril," it appeared that the assured undertook to get aboard a train of cars while moving at a rate not so fast as a man would walk ; and that he fell under the wheels in the attempt, and was killed. HeU, that the company were liable. The case is stated in the opinion. Alden S. Sanborn, (with S. U. Pinney, of counsel,) for the appellant. Palmer, Rooker ^ Pitkin, for respondent. 1. The injury was not caused by an accident. Jones on Bail- ments, 8. Theohald v. Railway Pass. Assurance Oo. 26 Eng. L. & Eq. 432. 2. Recovery defeated by gross negligence. Phillips on Ins. §§ 41, 1051. Chandler v. Worcester Mut. Fire Ins. Oo. 3 Cush. 328. Oudworth v. S. C. Ins. Co. 4 Rich. 416. Angell on Fire & Life Ins. §§ 126-128. Angell on Carriers, §§ 10, 22, 9 Wis, 202. 732 SUPREME COURT OF WISCONSIN. Schneider v. Provident Life Insurance Company. 3. Wanton and wilM exposure by the assured relieved the com- pany. Paine, J. This action was upon a policy by which Bruno Schneider was insured against injury or death by accident. He at- tempted to get on a train of cars while in slow motion, and fell under them and was killed. The policy contained a clause that the company should not be liable for any injury happening to the as- sured by reason of his " wilfully and wantonly exposing himself to any unnecessary danger or peril." And, on the trial, the plain- tiflp was nonsuited upon the ground that the death was within this exception. But the position most strongly urged by the respondent's counsel in this court was, that, inasmuch as the negligence of the deceased contributed to produce the injury, therefore the death was not oc- casioned by an accident at all, within the meaning of the policy. I cannot assent to this proposition. It would establish a limitation to the meaning of the word " accident " which has never been es- tablished either in law or common understanding. A very large proportion of those events which are universally called accidents, happen through some carelessness of the party injured, which con- tributes to produce them. Thus, men are injured by the careless use of firearms, of explosive substances, of machinery, the care- less management of horses, and in a thousand ways, where it can readily be seen afterward that a little greater care on their part would have prevented it. Yet such injuries having been unex- pected, and not caused intentionally or by design, are always called accidents, and properly so. Nothing is more common than items in the newspapers under the heading, " accidents through careless- ness." There is nothing in the definition of the word that excludes the negligence of the injured party as one of the elements contributing to produce the result. An accident is defined as " an event that takes place without one's foresight or expectation ; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected." An accident may happen from an unknown cause. But it is not essential that the cause should be unknown. It may be an unusual result of a known cause,, and therefore unexpected to the party. And such was the case here, conceding that the negligence of the deceased was the cause of the accident. FEBRUARY, 1869. 733 Schneider v. Provident Life Insurance Company. It is true that accidents often happen from such kinds of negli- gence. But still it is equally true that they are not the usual re- sult. If they were, people would cease to be guilty of such negli- gence. But cases in which accidents occur are very rare in com- parison with the number in which there is the same negligence without any accident. A man draws his loaded gun toward him by the muzzle. — the servant fills the lighted lamp with kerosene — a hundred times without injury. The next time, the gun is dis- charged, and the lamp explodes. The result was unusual, and therefore as unexpected as it had been in all the previous instances. So there are, undoubtedly, thousands of persons who get on and off from cars in motion without accident, where one is injured. And, therefore, when an injury occurs, it is an unusual result, and unexpected, and strictly an accident. There are not many author- ities on the point. The respondent's counsel cites Theobald v. The JRailway Passengers' Assurance Co. 26 Eng. Law & Eq. 432, not as a direct authority, but as containing an implication that the neg- ligence of the injured party would prevent a recovery. I do not think it can be construed as conveying any such inymation. The insurance there was against a particular kind of accident — that was a railway accident ; and the only question was, whether the injury was occasioned by an accident of that kind. The court held that it was ; and although it mentions the fact that there was no negligence on the part of the assured, that cannot be considered as any intimation what would have been the effect of negligence, if it had existed. The general question as to what constitutes an accident, was considered in two subsequent cases in England. The first was Sinclair v. The Maritime Passengers' Assurance Co. 107 E. C. L. 478, in which the question was whether a sunstroke was an acci- dent within the meaning of the policy. The court held that it was not, but was rather to be classed among diseases occasioned by natural causes, like exposure to malaria, &c. ; and while admitting the difficulty of giving a definition to the term " accident " which would be of universal application, they say they may safely assume " that some violence, casualty, or vis major is necessarily involved." There could be no question in this case, of course, but that all these were involved. In the subsequent case of Trew v. Railway Passengers' Assur- ance Co. 6 Hurl & Nor. 839, the question was whether a death 734 SUPREME COURT OF WISCONSIN. Schneider v. Provident Life Insurance Company. by drowning was accidental. The counsel relied on the language of the former case, and urged that there was no external force or violence. But the court held that if the death was occasioned by drowning, it was accidental, within the meaning of the policy. And in answer to the argument of counsel, they said : " If a man fell from a housetop, or overboard from a ship, and was killed ; or if a man was suffocated by the smoke of a house on fire, such cases would be excluded from the policy, and the effect would be that policies of this kind, in many cases where death resulted from acci- dent, would afford no protection whatever to the assured. We ought not to give to these policies a construction which will defeat the protection of the assured in a large class of cases." There was no suggestion that there was any question to be made as to the negligence of the deceased ; and yet the court said : " We think it ought to be submitted to the jury to say whether the de- ceased died from the action of the water, or natural causes. If they are of the opinion that he died from the action of the water, causing asphyxia, that is a death from external violence, within tlie meaning of this policy, whether he swam to a distance and had not strength enough to regain the shore, or, on going into the water got out of his depth. Now, either of these facts would seem to raise as strong an in- ference of negligence, as an attempt to get upon cars in slow mo- tion. Yet the court said that although the drowning was occa- sioned by either one of them, it would have been an accidental death within the meaning of the policy, and the plaintiffs entitled to recover. I cannot conceive that it would have made such a re- mark, except upon the assumption that the question, whether the injured party was guilty of negligence contributing to the accident, does not arise at all in this class of cases. I think that is the true conclusion, both upon principle and authority, so far as there is any upon the subject ; and the only questions are, first, whether the death or injury was occasioned by an accident within the general meaning of the policy, and, if so, whether it was within any of the exceptions. This conclusion is also very strongly supported by that provi- sion of the policy under which the plaintiff was nonsuited. That necessarily implies that any degree of negligence, falling short of " wilful and wanton exposure to unnecessary danger," would not prevent a recovery. Such a provision would be entirely superflu- FEBRUARY, 1869. 73o Schneider v. Provident Life Insurance Company. ous and unmeaning in such a contract, if the observance of due care and skill on the part of the assured constituted an element to his right of action, as it does in actions for injuries occasioned by the negligence of the defendant. The question therefore remains, whether the attempt of the de- ceased to get upon the train was within this provision, and consti- tuted a " wilful and wanton exposure of himself to unnecessary danger." I cannot think so. The evidence showed that the train, having once been to the platform, had backed so that the cars stood at some little distance from it. While it was waiting there, the deceased was walking back and forth on the platform. It is very probable that he expected the train to stop there again before finally leaving. But it did not. • It came along, and while moving at a slow rate, not so fast as a man would walk, he attempted to get on, and by some means fell either under or by the side of the cars, and was crushed to death. The act may have been imprudent. It may have been such negligence as would have prevented a recov- ery in an action based upon the negligence of the company, if there had been any. But it does not seem to have contained those elements which could be justly characterized as wilful or wanton. The deceased was in the regular prosecution of his business. He desired and expected to leave on that train. Finding that he would be left unless he got on the train while it was in motion, it was nat- ural enough for him to make the attempt. The strong disinclina- tion which people have to being left, would impel him to do so. The railroad employees were getting on at about the same time. Imprudent though it is, it is a common practice for others to get on and off in the same manner. He had undoubtedly seen it done, if he had not done it himself, many times, without injury. I can- not regard it, therefore, as a wilful and wanton exposure of him- self to unnecessary danger, within the meaning of the policy. By the Court. The judgment is reversed, and a venire dt novo awarded. See Morel t. Miss. VaHey life Ins. Co., ante, 116. [The three following cases were received too late for insertion in their proper places.] KENTUCKY. St. Louis Mutual Life Insurance Company vs. Graves.^ (6 Bush, 268. Winter Term, 1869.) " Tfheshattdieby his own hcmds this policy shaU be void." — The assured killed himself. The policy was for the benefit of his wife, and contained the above stipulation. To recover on the policy the widow of the assured brought this action, and averred " that the fatal shot was the involuntary offspring of a momentary paroxysm of moral insanity which sub- jected his will, and impelled the homicide beyond the power of self-control or successfal resistance." Was Mlling himself in {Jiis case an ad of insanity^ and if so, did such killing avoid the policy? — See the opinions for a discussion of these questions, in which the court is equally divided. The court, however, unanimously concurred in the following : To avoid the policy the act of self-destruction must have been voluntary. Evidence of a current rumor to show the probable motive of an act subsequently done, as the killing of himself in this case, is not admissible unless it is shown that the rumor had been communicated to the party before he committed the act. The opinion of unprofessional witnesses as to whether a person under a given state of facts and circumstances, if sane, would have taken his own life, is not competent evidence. The following instruction was erroneously given in this case, to wit: "That although the jury may be satisfied that Leslie C. Graves, whose life was insured by the defendant, committed suicide, and that when he did the act his intellect was unimpaired, and that he knew it was forbidden both by moral and human law, yet if they believe, from the evidence, that at the instant of the commission of the act his will was subordinated by an uncontrollable passion or emotion, causing him to do the act, it was an act of moral in- sanity." The case is stated in the opinion. Oarr ^ W. O. P. Breckenridge, for appellant, cited 21 Penn. 466, Martman v. Keystone Ins. Go. ; ^ 4 Allen, 96, Bean v. Amer. Ins. Co. ; ^ 2 Amer. Law Register, 358 ; 4 Bligh, 194, Amicable Life Assurance Oo. v. Bland; 5 Man. & Gran. 639, Borradaile V. Hunter ; 1 Hare, 890, Cooh v. Black ; 7 Amer. Law Register, 300-302, 606 ; 3 Man. & Gran. 437, Olift v. Schawl e ; 13 Allen, 309, 316, Oluff V. Mutual Benefit Life Ins. Oo.* Buckner ^ Kinhead, and Huston ^ Mulligan, for appellee, 1 For an advance copy of this and the next case we are indebted to the Hon. W. P. D. Bush, reporter of the Kentucky court of appeals. 8 Ante, 649. ^ Ante, 195. * Ante, 208. WINTER TERM, 1869. 737 St. Louis Mutual Life Insurance Company v. Graves. cited Taylor's Medical Jurisprudence, 307, 648 ; Amer. Law Reg- ister, April, 1854, p. 360, Breasted, adm'r, v. Farmers' Loan ^ Trust Oo.; 4 Hill, 73;^ 4 Selden, 306 ; i 2 Kent. 324, 333; 44 Eng. Com. Law, 319 ; 54 Eng. Com. Law, 455-471 ; 54 Maine, 224, Eastahrooh v. Ins. Qo? Robertson, J.^ Only a few days after the intermarriage of Leslie C. Graves and Mary E. Searles, both born and reared in Lexington, Kentucky, he procured for her benefit from the appel- lant, (a life insurance company of St. Louis, Missouri,) a policy insuring his life to the amount of five thousand dollars to her use, on several prescribed conditions, among which are the following : " If the said person whose life is insured shall die hy his own hand, by delirium tremens, or the use of opium, or in consequence of a duel, or the laws of any nation, state, or province, that then, in such case, the policy shall be null and void." All these terms alike, being ejusdem generis, imply a death as the natural consequence of some voluntary act of the assured which he had the moral power to avoid, and against which, there- fore, the underwriters would not insure, and could not, consistently with public policy, have insured. The inevitable act of an insane man, who in that respect is mor- dead, is not, in the sense of the law or of the recited condi- tions, his voluntary act. An insane act is no more voluntary than any act constrained by extraneous force would be the voluntary and responsible act of the victim of accident or resistless power over his will. The object of the policy was to insure against in- voluntary death without the fault of the assured. Graves was insured as a free moral agent, who, as such, might voluntarily so act as to increase the contemplated risk. It was pru- dent and just, therefore, to provide in the pohcy against any ex- traordinary perils to life resulting from the voluntary conduct of the assured, who, by necessEg-y implication, undertook to abstain from any act jeopardizing his life beyond the ordinary accidents to which it was liable without his fault. For this precautionary condition there was a reasonable and consistent motive. But there was no ' Ante, 341, 343. 2 Ante, 139. * In this case Judge Robp;rtson delivered the opinion, in which Judge Peters concurred, and Chief Justice Williams delivered a separate opinion, in which Judge Hakdin concurred. These opinions, differing as to the law as expounded by them respectively, agree in a reversal of the judgment of the circuit court. 47 788 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Graves. such motive for avoiding the policy for inevitable suicide, which, whether accidental or otherwise against the free will of a rational mind, is essentially in the category of natural death from ordinary causes, as indisputably insured against. Mental insanity is disease ; and the policy insures against death by disease of any sort which ordinary prudence could not avoid. Death by insanity is death by disease, and is so considered in medical jurisprudence. Why except from the insurance death by insanity ? Did not the parties contemplate death by any disease not avoidable by prudent and proper conduct? The underwriters took all such risk and no other ; and to prevent fraud or imposture excepted death by opium or by delirium tremens, and other causes which the assured could avoid, and ought to avoid, and therefore impliedly undertook to Avoid. Death " by his own hand " is in the same class of causes for avoidance, and means the same character of avoidable death. The mind is the man, and the conditions of avoidance all alike contemplate a rational mind and presiding will. Death by opium, therefore, means not the accidental or involuntary, but the rational and voluntary use of opium ; death by delirium tremens imports death by voluntary and habitual drunkenness ; and death by duel- ling is a voluntary act ; all of which deaths might and ought to have been avoided. So, for the same reason, death " by his own hand " means suicide, not accidental or coerced, but premeditated by a sound mind and perpetrated by a free will; and a voluntary act of the will necessarily implies liberty and self-control, and con- sequently the act of an insane mind or subjugated will is not volun- tary. It is not the act of the man, but of some power above him, and which his will cannot elude or control. The condition as to death " by his own hand " reasonably im- ports, therefore, that if the insured should commit suicide volun- tarily when he had the moral power to forbear, just as he might commit it by the habitual use of opium oe intoxicating liquors, the policy should be thereby avoided. The death, in each case alike, must be the voluntary act of a sane mind and a responsible will. As policies are peculiar in their style, and not easily intelligible by the common mind, this language should, in cases of doubt, be most favorably construed for the benefit of the assured. This is enough for this case. There is some apparent conflict in the adjudged cases on the construction of just such a condition of avoidance in a life policy as WINTER TERM, 1869. 739 St. Louis Mutual Life Insurance Company v. GraTes. that which we are considering; but there is no very essential di- versity in principle ; all that is judicial, with perhaps one excep- tion, concurring in the principle that to avoid the policy the death must be '■'■voluntary." And no mind, itself rational, can contem- plate any act as voluntary unless it be the offspring of a free voli- tion, unconstrained by inevitable duress, physical or moral. In the case of Dean v. American Insurance Company, 4 Allen, 96,^ the supreme court of Massachusetts, in an elaborate, self-con- tradictory, and inconclusive opinion, seemed inclined to construe the words " if he died by his own hand " as intended to mean self- destruction, however or by whomsoever effected. But, to escape the absurdity of including death by accident, the opinion concludes that the avoiding act must he voluntary. This argument is surely a felo de se, or must concede that all suicide, however effected, is voluntary. And this is a petitio prin- eipii, and begs the question. This case, therefore, though appar- ently the strongest against us, is, when its metaphysical labyrinth is threaded, corroborative of our conclusion that the avoiding act must be voluntary. This interpretation of the decision can be evaded only by the assumption that it uses the word " voluntary " in some recondite sense inconsistent with its legal and metaphysical import. In Hartman v. Keystone Insurance Company, 9 Harris, 466, 479,^ the supreme court of Pennsylvania say that the words " die by his own hand," standing alone, " mean any sort of suicide." This has no essential bearing on the question we are considering, and noscitur a sociis, cannot be disregarded. But several American cases ably, and, as we think, conclusively sustain our construction. In Breasted v. The Farmers^ Loan and Trust Company, 4 Hill, 73, 74,^ the supreme court of New York, in a powerful opinion by Nelson, now of the United States supreme court, adjudged that " suicide " and " died by his own hands," as generally used in policies, were synonymous, and that " die by his own hands " means voluntary self-destruction by the free will of a sane man ; and said " self-destruction by a fellow-being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used for the purpose." " The drowning of Comfort was no more his act in the sense of the law than if he had been impelled by irresistible physical force." 1 Ante, 195. 2 Ante, 649. 3 Ante, 341. 740 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Graves. " Self-slaughter by an insane man or a lunatic is not an act of sui- cide within the meaning of the law." 4 Black. Com. 189. 1 Hale's P. C. 411. In that case, therefore, the court decided that the policy was not avoided, though the assured died by his own hand, but without a self-controlling will to avoid the act. And on appeal to the court of appeals that judgment w^as affirmed by a more argumentative opinion by Willard, (4 Selden, 303,i) in which it was adjudged that " suicide " and death " by his own hand " were synonymous in policies. And the court said that in each the act must be inten- tional, and therefore criminal, which could not be the case if the mind was constrained by moral or physical duress ; and said also, " Can it make any difference whether this coercion come from the hand of man or the visitation of Providence f " And the same principle is recognized and enforced by masterly argument by the supreme court of Maine in the case of lEastahrook V. The Union Mutual Life Insurance Company, 54 Maine, 224, 226,^ in which the court cite and criticise the British case of Bor- radaile v. Hunter, 5 Man. & Gran. 639, and that of Olift v. Schwabe, 3 Man. & Gran. 437. Now, in the case of Borradaile v. Hunter, a majority of the court. Chief Justice Tindal and others dissenting, decided that the policy was avoided by the self-destruction of the assured, because the jury found that the act was voluntary ; thus implying that, unless the act was voluntary, the policy had not been avoided. And this, so far, is coincident with our opinion. But that court seemed to think that knowledge of right and wrong may make an insane act voluntary. This inconsistency of the past generation on the phenomena of insanity is exploded by the advancing science of this more rectified age. Moreover, it seems that not only Tin- dal, but Maule, Pollock, Cresswell, Tenterden, and other eminent jurists of England, disapproved the inconsistent doctrine in Borra- daile V. Hunter, and Qlift v. Schwabe whicli followed it, and that Lord St. Leonard says, in a note to Bunyon on Assurance, 75, "dSec? qucere the decision?" Those cases are, therefore, not full and unquestioned authority, even in England, except so far as they support our conclusion that the act cannot avoid the policy unless it be voluntary. And who can doubt what, in its legal sense, " vol- untary" is? 1 Ante, 343. 2 Ante, 139. WINTER TERM, 1869. 741 St. Louis Mutual Life Insurance Company v. Graves. Hence, referring to those British cases as coincident in reason with Breasted v. Farmers' Loan and Trust Company, as reported in Hill and Selden, Phillips on Insurance, section 895, says, in eflfect, that any mental derangement sufficient to exonerate a party from a contract would render a person incapable of occasioning the forfeiture of such a policy as this. We may now conclude that principle, reason, and authority, all concurring, show that an insane act is not voluntary, and that to avoid the policy in this case the act of self-destruction must have been voluntary. Was Graves's death a voluntary act ? This is the vital question for solution by the law and the facts. Every self-destroyer literally dies " by his own hand ; " but technical suicide implies a sane and controlling mind. All this the parties to the policy must be presumed to have understood, and consequently to have contemplated by the words " if he died* by his own hand," the death of a sane man by his own voluntary act, and not by accident or the merely mechanical hand of a maniac. In about four montlis after the date of the policy the assured was shot in the head about ten o'clock on the night of the 17th of April, 1867, and, immediately after the report of the fatal shot, was found lying dead and alone in the dark in his livery-stable, near a pistol which he had only a few moments before unfortunately procured from a friend; and though the contrary has been assumed,* yet 'the circumstances will allow scarcely a doubt that he died " by his own hand." To recover on the policy the widow of the assured brought this action, and averred that the fatal shot was the involuntary offspring of a momentary paroxysm of moral insanity, which subjugated his will and impelled the homicide beyond the power of self-control or successful resistance. The appellant demurred, and being overruled, traversed those allegations ; and on that substantial issue the jury found for the appellee, and the judge rendered judgment against the appellant, now sought to be reversed. If the death was not an act of free volition, the unconstrained will of a sane and self-poised mind, the appellant is responsible ; otherwise not. According to matured philosophy, and the corroborating author- ity of elementary writers such as Prichard and Esquirol and Ray and Taylor, and of many modem adjudications, both British and 742 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Graves. American, there may be moral as well as intellectual insanity, and essentially contradistinguished from it. When, as often happens from congenital malorganization or supervenient disturbance of the normal condition of a sound mind in a sound body, the senses pre- sent false images which, accredited necessarily by the deluded vic- tim as intuitive certainties, no reasoning or proof can rectify the illusion of a mind in such abnormal condition, and consequentlj'', as no punitary sanction can prevent the effects of such insane delu- sion, there is no legal responsibility. This is called intellectual insanity. But, while the senses are apparently sound and true, the afPec- tions may be perverted or the moral sentiments unhinged in such a degree as to subjugate the will to some morbid appetite or ungov- ernable palfeion and thus precipitate against the will insane but conscious wrong. This is contradistinctively called moral insanity. Such are the forms o( monomania entitledMeptomania, pyromania, nymphomania, homicidal mania, &c., now well defined and recog- nized as irresponsible insanity. Whether and how far these two distinctive forms of insanity run into and sympathize with each other is unknown. But generally the one is apparently untinged by the other, and in moral de- thronement by insane passion there may be no delusion, but the will is overwhelmed by delirious passion, which it can neither stifle nor successfully resist. Smith v. The Commonwealth, 1 Duvall, 224, is Kentucky authority supporting this theory. The appellee rests her case on the plea that her husband's suicide was an act of moral insanity ; and her counsel assume that all sui- cide is an insane act, or prima facie evidence of insanity in some phase. All this is controverted by the appellant; and here lies the issue discussed and tried. On the question whether a sane mind can commit voluntary sui- cide there has been some conflict of opinion. Some medico-jurists insist that suicide is necessarily an insane act ; others that it is only prihfia facie evidence of insanity. The first hypothesis has been generally discredited, and the lat- ter much doubted, in all time and every forum, ever since the suicides of Themistocles, Demosthenes, Hannibal, and Cato of Utica. Without faith in a future state of retribution, these his- toric men seemed, each and all, to prefer, on rational calculation, annihilation to hopeless torture or degradation. Even assurance WINTER TERM, 1869. 743 St. Louis Mutual Life Insurance Company v. Graves. of immortality might not always stay the voluntary hand of the rea- soning suicide. Martyrdom for faith or principle or opinion, though not a positive act of suicide, is yet virtually self-immolation on the altar of truth and posthumous fame. And many such self-sacrifices illustrate the Middle Ages, and even subsequent periods of the earth's history, without the imputation or suspicion of impelling insanity. Still self-destruction is so rare and awful as, in itself and by itself, to imply insanity in the absence of proof of motive or pre- disposing causes. Such are our judicial theories on this occult subject. Without elaboration of the elements of physiology or psychology, or analysis of Ray or Esquirol or Prichard or Taylor, all substan- tially concurrent, or of British and American adjudications, in some respects conflicting, we are content with the conclusion that the foregoing outline sufficiently defines the law of this case. In giving and refusing instructions on the trial the circuit judge, with one exception, substantially applied the law as thus defined. If a paroxysm of moral insanity caused the death of tlie assured, the suicidal act was involuntary, and at the instant unavoidable, even if he then knew its illegality and all its consequences ; for such knowledge, as before suggested, is consistent with that form of insanity, and therefore the court did not err in refusing to in- struct the jury otherwise, and of which the appellant most com- plains. But instruction number three, given for appellee, may be so interpreted as to be misleading and erroneous, and was therefore improperly given. This is the exception before suggested. The evidence of insanity is conflicting. The assured was not only blessed with a loved and loving young wife, but with pros- perity in business, without any disclosed cause to be tired of life. Evidence of a rumor that, on the night preceding his death, he had burned his brother's rival livery-stable, was admitted. That accu- sation, if he knew it, might have operated as a powerful motive to escape by suicide the agony of overwhelming disgrace ; and there- fore the admission of the testimony might not have been prejudicial to the appellant, and especially as during the evening of the inter- vening day L. C. Graves took several copious and solitary draughts of intoxicating liquors, as if to drown distress, and give him a false and reckless courage for a desperate deed, which calm and sober he could not perpetrate. But as we cannot know the effect of that testimony on the mind of the jury, we adjudge the evidence 744 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Graves. incompetent unless he had heard the rumor. It also appears that only a few moments before the report of the pistol he by much importunity procured the weapon from a friend, and was drunk. These facts conduce to the conclusion that the suicide was volun- tary and premeditated, and was not the inevitable result of moral insanity. On the other hand, his apparent felicity in his domestic relations and prospects, the monstrous character of the act itself, and the want of certain proof of any strong motive for it, fortify the prima facie presumption of insanity, which is still more strengthened by the testimony of Doctors Chipley and Skillman, who both, after hearing the evidence, concurred in the belief that if Graves shot himself, the act was the offspring of moral mania. The probabilities are so nearly balanced that the preponderance would not allow this court to set aside a verdict either way for want of evidence to support it. But the resisted admission of the opinions of many unprofessional witnesses expressed on a long hy- pothetical question as to whether they thought that, under all the circumstances. Graves if sane would have shot himself, was a sub- stantial error, prejudicial to the appellant. For that error, the error in instruction number three, and the error in admitting evidence of the monomania, the judgment is reversed, and the cause remanded for a new trial. Peters, J., concurred in the foregoing opinion. Williams, C. J. January 7, 1867, Leslie C. Graves, appellee's husband, procured from appellant a policy of insurance on his life, in his wife's name, and for her benefit, which contains a proviso with six several paragraphs, the fourth being as follows : " 4. If the said person whose life is hereby insured shall pass beyond the above-described limits ; or shall be personally engaged in Hasting, mining, submarine operations, or the productioi. of highly inflammable or explosive substances ; or in working or man- aging a steam-engine in any capacity ; or as a mariner, engineer, fireman, conductor, or laborer in any capacity upon service on any sea, sound, inlet, river, lake, or railroad ; or shall enter any mili- tary or naval service whatsoever, (the ' militia when not in active service excepted,) without the consent of this company in each or either of the foregoing cases, previously given in writing j or if he WINTER TERM, 1869. 745 St. Louis Mutual Life Insurance Company v. Graves. shall die hy his own hand, by delirium tremens, or the use of opium, or in consequence of a duel, or the violation of the law of any na- tion, state, or province ; . . . . this policy shall be void." Without the least sign of previous mental or moral insanity, so far as the evidence in this case exhibits, and after stimulating him- self freely with ardent spirits, as though to raise his animal cour- age to an adequate degree for the act, and after importuning a friend to loan him his pistol, which the friend, though he at first declined, did on being pressed, and promised a return uithin a very short time, Leslie 0. Graves shot himself on the evening of April 17, 1867, about ten o'clock, and died instantly, and within less than a half hour after obtaining the pistol ; the only possible clew to account for any disposition to take his own life being a current rumor about the city of his residence (Lexington) that through his instrumentality his brother's rival livery-stable had but two nights before been burned ; but even this is not proved to have reached his ears. In this suit on said policy by the wife the jury have found for her the sum stipulated, — five thousand dollars, — under the fol- lowing, among other instructions of the court : " That before the jury can find for the defendant, they must be satisfied from the evidence given that Leslie C. Graves, whose life is insured, inten- tionally destroyed it ; that although the jury may be satisfied that Leslie C. Graves, whose life was insured by the defendant, com- mitted suicide, and that when he did the act his intellect was un- impaired, and that he knew it was forbidden both by moral and human law, yet if they believe from the evidence that at the in- stant of the commission of the act his will was subordinated by any uncontrollable passion or emotion causing him to do the act, it was an act of moral insanity, and they ought, if they so believe, to find for the plaintiff." And we are how asked to say that this is law. In ail the vague, uncertain, intangible, and undefined theories of the most impracti- cable metaphysician on psychology and moral insanity, no court of last resort in England or America, so far as has been brought to our knowledge, ever before announced such a startling, irresponsi- ble, and dangerous proposition of law. For if this be law, then no longer is there responsibility for homicide, unless it be perpetrated in calm, cool, considerate condition of mind. What is this propo- sition when compressed into a single sentence ? That if his " iw 746 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company 9. Graves. tellect was imimpairedy and that he knew it was forbidden both by moral and human law," yet if at " the instant of the act his will was subordinated by any uncontrollable passion or emotion causing him to do the act, it was moral insanity, and they ought to find for the plaintiff." Concede that it was through either passion or mor- tification, or fear of disgrace because of this rumor, and instead of killing himself he had killed this brother, or some one else whom he suspected of being connected with the rumor, should this trans- port of passion or mortification or fear of disgrace have exempted him from criminal responsibility? If so, then indeed the more violent the passion and desperate the deed the more secure from punishment wUl be the perpetrator of homicide or other crime. Had Graves killed another under the circumstances developed in this case, we should enter our most solemn protest against his ex- oneration irom responsibility. But it is not necessary to put this case on any such grounds, for this is a civil suit, founded on a civil contract. The doctrine of moral insanity, ever dangerous as it is to the se- curity of the citizen's life, and pregnant as it is with evils to soci- ety, has but little or no application to this case. Too uncertain and intangible for the practical consideration of juries, and unsafe in the hands of even the most learned and astute jurist, it should never be resorted to for exemption from responsibility save on the most irrefragible evidence, developing unquestionable testimony of that morbid or diseased condition of the affections or passions so as to control and overpower or subordinate the will before the act complained of; for if the act is to be evidence of moral insanity for the suicide, so it will be for the homicide, the parricide, and the se- ducer and the ravisher. But as the general covenants of the policy assured against all deaths by disease, whether of body or mind, what did the parties mean bv inserting the proviso that the company was not to be re- sponsible " if he shall die hy his own hands? " These are impor- tant and pregnant words, full of meaning. In natural and common parlance there would be but little diffi- culty in this determination, for they should have a* rational con- struction, to be derived from the whole contract and the objects of the parties as therein evidenced. But the refinements of astute and metaphysical minds have refined away this in exploring the mazy, dark, and limitless region of psychology and moral insanity, and herein lies the difficulty. WINTER TERM, 1869. 747 St. Lonis Mutaal Life Insurauce Company v. Graves. The party did not intend to insure against self-destrnction ; jet, says the refined metaphysician, this means a voluntary self-destruc- tion, and if the party was morally or mentally insane he did not destroy himself, and that the act of self-destruction is evidence in itself of such moral insanity. So the act of taking his own life dis- proves the self-destruction. Was there ever a more self- destroying argument or theory? And if this theory be true, that the act of suicide evidences insanity, either moral or mental, does this not it- self establish the fact that it was against such death that the com- pany refused to insure, and so provided for its exemption from the operation of the general covenants of the policy ? If moral insanity, when the mind is left; unimpaired, is to be substituted for disease, to what purpose were the words used ? What kind of self-destruction did they provide against ? For the astute metaphysicians who testified in this case gave it as their opinion that in a Christian country no sane man would commit sui- cide, and so testified nearly every other witness, and they were many, who were called t& the point ; and so, it is presumed, found the jury, for this is the sole act of insanity proved or attempted to be proved in the case. Now this actual, practical reductio ad ahsurd-um illustrates the uncertain and intangible impalpability of such a theory. Here the insurance company does not insure against self-destruction. This, says the theorist, does not embrace an act of moral or mental in- sanity, and that the act of self-destruction evidences, in itself, such moral insanity ; the inevitable logical result therefore is, that as self-destruction testifies to moral insanity, which is not embraced in the proviso, so self-destruction is not embraced in the words if he die hy Ms own hands. If this be so, what do they mean ? For there they stand as part of the covenant, and as a qualification to the previously used general terms of responsibility by the company. This in effect, and to all legal and practical purpose, nullifies and abolishes the proviso, and renders it a mere hrutwm fulmen, a senseless, imbecile provision. If then we would escape this illogical absurdity, and attach any sensible meaning to these words, and give them any effective oper- .ation, we must find a more practical solution than the theory of moral insanity has or can present to us. It is remarkable that all the decisions brought or which have come to our view, have been made upon strongly developed and 748 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Graves. distinctly marked cases of prior intellectual insanity, and do not embrace a single case of moral insanity ; yet there was a divided court, whether of England or the American states, save alone that of Massachusetts, in the great case of Dean et al. v. American Life Insurance Company, 4 Allen, 96,^ wherein the reasoning of Chief Justice Bigelow was so clear, strong, and palpable, and presented such a clear, practical point in such cases, that it unanimously car- ried that court of six judges, deservedly distinguished for their learning and ability. It is no argument to say that the literal meaning of those words would avoid the policy on every self-destruction, however this might be produced, whether by the merest casualty, or by the rav- ing maniac who knew not right from wrong nor life from death. Such a meaning has not been contended for by the insurer nor its attorney, nor justified by the opinion of any judge ; but a reason- able and fair construction is sought to be placed on them, as derived from the whole contract and the objects of the parties as therein manifested. • Borradaile v. Hunter decided in 1843, is a leading English case, (44 English Common Law, 336, )''^ in which the jury found spe- cially " that Mr. Borradaile voluntarily threw himself from the bridge (over the Thames) with the intention of destroying his life ; but at the time of committing the act he was not capable of judging between right and wrong." There were many acts of insanity before the suicide proved ; besides, he was a divine, doubtless well instructed in moral and fu- ture responsibility, which greatly strengthened the other evidence of insanity ; yet Mr. Justice Erskine entered the verdict for the defendant ; but afterward, upon rule to set it aside, the case came before a superior court, consisting of the Lord Chief Justice Tin- dal, and Justices Maule, Erskine, Coltman, and Cresswell, the lord chief justice alone dissenting. Erskine said : " Looking simply at that branch of the proviso upon which the issue was raised, it seems to me that the only qual- ification that a liberal interpretation of the words with reference to the nature of the contract requires, is, that the act of self-destruc- tion should be the voluntary and wilful act of the man, having at 1 Ante, 195. 5 Man. & G. 639. WINTER TERM, 1869. 749 St. Louis Life Insurance Company v. Graves. the time sufiScient powers of mind and reason to understand the physical nature and consequences of such act, and having at the time a purpose and intention to cause his own death by the act ; , and that the question whether at the time he was capable of under- standing and appreciating the moral nature and quality of his purpose is not relevant to the inquiry, further than as it might help to illustrate the extent of his capacity to understand the physical character of the act itself." The language of the English policy was identical with that under consideration, and judgment was entered for the defendant. Three years subsequently another English case came under re- view of her courts ; to wit, Clift v. Schwaie, 54 English Common Law, 437.-^ This, however, was upon a policy providing that it should be void if the person whose life was insured should commit iuicide. In this case it was held by five to two of the judges that the word suicide must be taken in its common acceptation, not be- ing a word of art to which a legal technical meaning attaches, but in ordinary parlance means one who ha4 purposely killed himself. The court, upon solemn argument and due consideration, again affirmed the principles announced in Borradaile v. Hunter, and held the policy void because the .said Schwabe, whose life was in- sured, committed suicide by taking sulphuric acid with the intent to kill himself, though then of unsound mind. The reasoning in this was similar to the other case, since which time the law has been regarded as so settled in England. In 1843, the senate of New York, sitting as a court of errors, in Breasted v. Farmers' Loan and Trust Company, 4 Hill, 74,^ held that " suicide involves the deliberate termination of one's ex- istence while in possession and enjoyment of his mental faculties. Self-slaughter by an insane man or lunatic is not an act of suicide within the meaning of law." But the evidence or character of Comfort's insanity is not given in the short, unphilosophic, and weak argumentation of this polit- ical body, though written by its chief justice. The same case, how- ever, went up to the appellate court from the supreme court of New York in 1853, (4 Selden, 303,) ^ and it appears therein " that the assured threw himself into the Hudson River from thfe steam- boat Erie, while insane, for the purpose of drowning himself, not 1 3 Man. & G. 437. 2 Ante, 341. 3 Ante, 343 750 COURT OF APPEALS OF KENTUCKY. St. Lonia Mutual Life Insurance Company v. Graves. being capable at the time of distinguishing between right and wrong" as found by the referees. Here was evidence of insanity, before he perpetrated the deed, to such an extent as to destroy his knowledge and power to dis- criminate between right and wrong ; and what was said in the opinion of the court, much more argumentative than the other, must be taken in reference to such character of mental insanity. And whUe a majority of the *court evidently felt the cogency of the reasoning and authority of the English courts, still it drew a distinction between the facts, insisting that in the English cases the suicide had acted voluntarily, but not so with Comfort ; so that they were deciding in a case where no volition had been exercised, nor was there power to distinguish between right and wrong, which makes out a case of bad intellectual lunacy ; yet even here was a nearly equally divided court, or a majority of four against a minor- ity of three on such a case. The next case is that of Uastabrook v. The Union Mutual Life Ins. Co. 54 Maine, 224,' in which the supreme court of Maine, by a divided court of four to one, upon a policy identical in language to the one in this case, and upon the finding of the jury " that the self-destruction was the result of a blind and irresistible impulse over which the will had no control, and that the self-destruction was not an act of volition," held that the policy was not avoided by such act committed by one laboring under such insanity. But in the case of Hartman v. Keystone Ins. Co. 21 Penn. 466, 479,^ the supreme court of Pennsylvania, by Chief Justice Black, held that " the words die by his own hand must be disconnected from those which follow ; standing alone they mean any sort of suicide ; " one judge dissenting, one absent, and three concurring. In Dean v. American Mutual Life Ins. Co. 4 Allen, 96,^ the supreme couit of Massachusetts, by unanimity of the six judges, held that a policy containing the words in the proviso, that if the assured " shall die by his own hand " it is to be void, means to exclude risks of " the destruction of life by the voluntary and in- tentional act of the party assured." The court said : " The moral responsibility for the act does not affect the nature of the hazard. The object is to guard against loss arising from a particular mode of death. The cav^a eausus, the motive or influence which guided 1 Ante, 139. * Ante, 649. 3 Ante, 195. WINTER TERM, 1869. 751 St. Louis Mutual Life Insurance Company v. Graves. or controlled the will of the party committing the act, are immate- rial as affecting the risk which the insurers intended to except from the policy. This view is entirely consistent with the nature of the contract. It is the ordinary case of an exception of a risk which would otherwise fall within the general terms of the policy. These comprehend death by disease, either of the body or brain, from whatever cause arising. The proviso exempts the insurers from liability when life is ^destroyed by the act of the party insured, although it may be distinctly traced as the result of a diseased mind. It may well be that insurers would be willing to assume the risk of the results flowing from all diseases of the body produc- ing death by the operation of physical causes, and yet deem it expedient to avoid the hazards of mental disorders in its effects on the will of the assured, whether it originated in bodily disease, or arose from external circumstances, or was produced by a want of moral and religious culture." The court again said the question is not, how far can the literal meaning of the words be extended, but what is a reasonable limi- tation and qualification of them, having regard to the nature of the contract and the objects intended to be accomplished by it ? Applying this principle to the proviso, it would seem to be rea- sonable to hold that they were intended to except from the policy all cases of death caused by the voluntary act of the assured, when his deed of self-destruction was the result of intention, by a person knowing the nature and consequences of the act, although it may have been done under an insane delusion, which rendered the party morally and legally irresponsible. If the suicide was an act of volition, however excited or impelled, it may in a just sense be said that he died by his own hand. If the death was caused by accident, by superior and overwhelfliing force, in the madness of delirium, or under any combination of cir- cumstances from which it may be fairly inferred that the act of self-destruction was not the result of the will, or intention of the party adapting means to the end, and contemplating the physical nature and effect of the act, then it may be justly held to be a loss not excepted within the meaning of the proviso. A party cannot be said to die by his own hand, in the sense in which those words are used in the policy, whose self-destruction does not proceed from the exercise of an act of volition, but is the result of blind im- pulse, of mistake or accident, or of other circumstances over which the will can exercise no control. .&2 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Graves. This is the tangible, practical view of the subject, and within the comprehension of plain, serisible men, such as generally make con- tracts, and such as juries are generally composed of, and embraces the true philosophy of the proviso and the reasons for its insertion, rendering it intelligible and valuable. It is remarkable that every one of these cases, both in England and America, arose out of intellectual insanity — a disease often, if not universally, produced by physical derangement — evidenced before the act of self-destruction. If judges could differ in such cases — and a great majority hold that even then the insanity must be of such a degree as to preclude volition and a comprehension of the physical result of the act before it should be exonerated fi-om the operation of the proviso in the policy — could it not be ration- ally inferred that in a case of mere moral insanity, where the in- tellect was left unimpaired, with a full comprehension of the act and physical result thereof, and studiously adapting the means to the end, that the judges would have been unanimous that the mere impulse of passion at the instant of the act, however strong and overwhelming and controlling over the mind, could not rescue it from the operation of the proviso. It never has been anticipated by any law writer known to us, that the mere transports of passion at the time the fatal deed is done, when the mind remains unimpaired and in the exercise of its intellectual faculties, however violent and overwhelming, sliall ex- onerate from even criminal responsibility, much less to avoid civil contracts. The close proximity of the words " shall die by his own hand " to words signifying criminal intent, no more indicates that such intent enters into their meaning than does their close proximity to other words importing no such intent, but an innocent one, show that they should be construed to mean irresponsible, in- nocent action ; and as these words stand in close connection with both classes of words, how shall courts determine that they are to be construed by the one rather than the other ? Evidently these words, as held by Chief Justice Black in the Pennsylvania case, and by other courts, must be construed by themselves, and in their common, natural signification held to mean what the parties under- stand, as derived from the whole contract, its nature and objects. The opinions of witnesses, not founded on science, but as a mere theory of morals or ethics, whether given by professional or unpro- fessional men, are wholly inadmissible as evidence. Hence the JANUARY, 1870. 753 St. Louis Mutual Life Insurance Company, v. Kennedy. opinion of even physicians that no sane man in a Cliristian country would commit suicide, not being founded on the science or phe- nomena of the mind, but rather a theory of morals, religion, and future responsibility, is not evidence. Nor should the court have permitted the so recent rumor about the city to be proved over the defendant's objections, unless it had been carried home to the knowledge of deceased. The sanity of the suicide, like that of the homicide, is legally presumed, and the evidence of insanity must be suflBciently potent to overcome both this legal presumption and the evidence of sanity, and establish to the satisfaction of the jury insanity. Grraham v. Commonwealth, 16 B. Mon. 587. Kriel v. Commonwealth, 5 Bush, 362. The mere prohibited act can rarely, if ever, do this. It would be well on another trial to submit special facts and have a special finding of the jury, so that the court may pronounce the judgment of law upon such finding. Wherefore, concurring in the reversal, but not in the law as ex- pounded by Judges Robertson and Petees, we have herein given our opinion. Harding, J., concurred in the foregoing opinion. See Nimick v. Mut. Benefit Life Ins. Co., ante, 689, and note. St. Louis Mutual Life Insurance Company vs. Kennedy, &c. (6 Bush, 450. Court of Appeals, January, 1870.) Advance premium not paid. Life policy not delivered^ not binding on company. — S. W. Ken- nedy applied to the St. Louis Mutual Life Insurance Company for an insurance on his life, his written application containing this covenant: "I further agree that the assurance proposed shall not be binding upon the company until the amount of premium as stated therein shall be received by said company or an accredited agent thereof, in the lifetime and good health of said S. W. Kennedy." The policy contained the stipulation, " Not binding on the company until countersigned by S. K. Foote or D. C. Smith, Louisville, Kentucky, and advanced premium paid." Simultaneously -with his application Kennedy executed his two notes, one due in one year , and the other due on the delivery of the policy — the latter note being for the amount of the cash premium, charge for policy, &c. The policy, after being duly countersigned, reached the local agent after Kennedy was taken sick, of which sickness he died, and the policy was never delivered, and the advance premium was never paid, nor payment thereof tendered. This action was brought after Kennedy's death to recover the insurance. Held, First, there was no consummated contract of insurance binding the company, as the ad- vance premium was not paid. \ Secondly, the note for the ' ' advance premium " was executed and delivered by the applicant 48 754 COURT OF APPEALS OF KENTUCKY. St. Louis Mutual Life Insurance Company v. Kennedy. and received by the agent of tlie company as a memorandum merely, and not as a pay- ment of the cash premium or a waiver of the condition precedent. Thirdly, the policy was an escrow in the hands of the agent, the applicant having failed to perform the condition which would have entitled him to its delivery, and its recitals could not be used in behalf of the representative of the deceased. The case is stated in the opinion. Joseph H. Ricketts, Barret ^ Moberts, and I. ^ J. Caldwell, for appellant, cited, Berthoud v. Atlantic Marine Ins. Oo. 13 Louisiana, 539 ; Owings v. Mull, 9 Peters, 607, 629. Feland ^ Evans and Marian ^ Newman, for appellees, cited, 2 Parsons on Contracts, 486, 487 ; Paraons's Mercantile Law, 281, 542 ; Tayloe v. Merchants^ Fire Ins. Go. 9 How. 390 ; Jenks v. Kentucky Mutual Ins. Oo. 5 Ind. 96 ; Angell on Ins. §§ 34, 37, 49, 243, 249, 342, 343 ; 1 Phillips on Ins. §§ 22, 23, 24, 125, 215, 514, 515 ; 2 Phillips on Ins. §§ 1849, 1993, 2111 ; 1 Greenl. §§ 275, 278, 279; 1 Story's Equity, § 722; Adams' Equity, 77-91 ; Carpenter v. Mutual Safety Ins. Oo. 4 Sandford's Ch. Rep. 408 ; Perkins v. Washington Ins. Oo. 4 Cow. 645 ; Idghtbody v. North American Ins. Oo. 23 Wend. 18 ; Suydam v. Columbus Ins. Co. 18 Ohio, 459 ; Neville v. Merchants' Ins. Oo. 19 Ohio, 452 ; Civil Code, §§ 79, 80, 118 ; 1 Duvall, 93 ; 4 J. J. Mar. 153 ; 3 Peters, 205 ; 10 Wheat. 199 ; 16 How. 81 ; 15 Ind. 395 ; 2 Duvall, 112 ; 2 Am. Lead. Cas. 812 ; 1 Smith's Lead. Cas. 999, side pages 823, 824 ; 7 Ohio, 233 ; IJ. J. Mar. 195 ; 5 Porter, (Ind.) 102 ; 18 Barb. 79 ; Migginson v. Ball, 13 Mass. 96 ; Westen v. Bvans, 1 Taunt. 115 ; Barrett v. Mutual Life Ins. Oo. 7 Cush. 175 ; Crood- all V. New England Fire Ins. Oo. 5 Foster, (N. H.) 169, 192 ; Bragdon v. Appleton Fire Ins. Oo. 42 Maine, 259 ; 1 Duer on Ins. p. 66, §§ 10, 11, 18 ; 3 B. Mon. 231 ; 19 How. 231 ; Com- mercial M. M. Ins. Oo. V. Union M. Ins. Oo. 19 How. 318 ; Mam- ilton V. Lycoming Ins. Co. 5 Barr, 339 ; 11 Paige, 547 ; 43 Barb. 352 ; Coit v. National Prot. Ins. Co. 25 Barb. 190, 191 ; N. Y. Central Ins. Oo. v. National Prot. Ins. Oo. 20 Barb. 468, 469 ; 22 Conn. 572 ; 27 Eng. L. & Eq. 140 ; Clark v. New England M. F. Ins. Co. 6 Cush. 342 ; 2 Kernan, 81 ; 19 N. Y. (5 Smith,) 305; 5 De Gex, Macnaghten & Gordon, 255; 17 Vt. 449; 18 Conn. 138 ; 3 Hill, 219 ; 6 Adol. & Ellis, 469 ; 33 Eng. Com. L. 115 ; 20 Ohio, 529 ; Malloek v. Ins. Oo. 2 Dutcher, (N. J.) 268, 272 ; 6 Wend. 103 ; 1 Barn. & Aid. 681 ; Perkins v. Washington Ins. Co. 4 Cow. 645, 660 ; Pirn v. Reid, 6 Man. & Gran. 1 ; Kohne V. Ins. ean v. Amer- ican Insurance Qo. Upon a careful consideration of the elaborate discussion of the matter in the cases above cited, by the dissenting judges as well as by those in the majority, we think that, as applied to this case, there is no substantial difference of signification between the phrases " shall die by his own hand," " shall commit suicide," and " shall die by suicide ; " and that they include self-destruction under the influence of insanity, within the limitation above stated. In the present case, there was rfb offer to prove madness of delirium, or that the act of self-destruction was not the result of the will and intention of the party, adapting the means to the end, and contem- plating the physical nature and effects of the act. The insanity, therefore, was not such as to take the case out of the proviso. Exceptions overruled. See Nimick v. Mutual Life Ins. Co., ante, 689, and note. 1 Ante, 139. « Ante, 343. IN^DEX. ABANDONMENT OP POLICY. See Assignment, 22 ; Premium, 30. ACCIDENT. See Computation, 1. 1. Total disability. — The words "totally disabled from the prosecution of his usual employment," in an accident policy, mean inability to do sub- stantially all kinds of his accustomed labor, to some extent.* To recover in such case, the assured must be deprived of the power to do to any extent substantially all the kinds of labor which constitute his usual employments. For such time he can recover, and no longer. Sawyer v. United States Casualty Co. 289. 2. Agency. — Where tickets insuring against accident are made out and signed at the company's principal office, and transmitted to their various agencies to be sold indifferently to all who apply for them, the agent's clerk may sell them. Brown v. Railway Passenger Assurance Co. 321. 3. " Travellers' risk " and " general accident " tickets. — In an action upon an accident pohcy which provides that the death must be " caused by an accident while travelling by public or private conveyance for the trans- portation of passengers," it appeared that the insured was killed while acting as an engineer on a railroad. It further aippeared that the company's agent was aware of this fact at the time the ticket of insurance was purchased; and that he had received no instructions not to insure railroad employees until after the death of the insured. The company sold two classes of tickets ; one known as the " travellers' risk," and the other as the " general accident." The price of the last was the higher ; and the insured purchased one of this class. Held, that this class of tickets insured against all accidents, without regard to the capacity in which the assured was acting, and that the com- pany were liable. Ibid. 4. Conveyance. — In an action upon a policy insuring against injury " caused by accident while travelling by public or private conveyances," it appeared that the assured, in the course of a journey, after leaving a steamboat started on foot to a railway station some seventy rods distant, though there w^re conveyances at hand which she might have taken. While thus walking she slipped and fell and received injuries from which she died. Held, that the accident did not occur while travelling by any conveyance within the mean- ing of the policy. Northup v. Railway Passenger Assurance Co. 619. 764 INDEX. Accident. Actions. 5. Negligence. — In an action upon an accident insurance policy, which pro- vided that the office was not to be liable for any injury to the assm?ed caused by his " wilfully and wantonly exposing himself to any unnecessary danger or peril," it appeared that the assured undertook to get aboard a train of cars while moving at a rate not so fast as a man would walk ; and that he fell under the wheels in the attempt, and was killed. Held, that the company were liable. Schneider v. Protkdent Life Ins. Co. 731. 6. Negligence. — In an action upon a policy of insurance against accident, wherein the company agreed to pa^ the assured $25 per week, for not more than twenty-six weeks, in case of injury from accident causing total disa- bility, it appeared from the petition of the insured that while travelling in a railroad coach between C. and N. he put his arm inadvertently out of the window of the same, when his hand came in contact with a post standing near the track whereby one of his fingers was so badly injured . as to totally dis- able him for duty in his profession for twenty-six weeks and more ; held, on demurrer, that the action was caused by his own carelessness, whereby he deprived himself of all right to compensation. Morel v. Mississippi Life Ins. Co. 116. 7. Death bt Violent and accidental means. — A policy insured the holder against death " by violent and accidental means within the meaning of the contract and conditions annexed." It proceeded to enumerate difier- ent kinds of injuries for which the company were not to be liable. Held, that this enumeration did not enlarge the meaning of the terms " violent and accidental," and that to render the company liable the injury must be strictly violent or accidental. Southard v. Railway Passengers' Assurance Com- pany, 70. 8. RuPTUKB caused by voluntary haste. — Eupture caused by jumping from a car and running, done voluntarily and for the accomplishment of a certain purpose, and unattended by any falling or stumbling, does not con- stitute an injury caused by accident. Ibid. 9. Occupation. Evidence. — In an action upon a poUcy which insured against accidents generally, and provided expressly in what particular cases the company were not to be liable, but did not provide that they would not be liable for death occurring from a cause not connected with the occupation of the assured, or that he should not change his occupation ; held, that the application of the assured was inadmissible to show his occupation at the time of effecting the insurance, so as to prove that he was otherwise em- ployed when he met his death ; such evidence being immaterial. Provident Life Ins. Co. v. Fennell, 99. ACTIONS. See Practice and Pleading ; Injunction ; Assignment. 1. When right of action accrues. — In an action upon a policy of life insurance prescribing the time within which suit may be brought upon the same, the plaintiff's right of action is complete when he has complied with the conditions of the policy ; but he commences his action at the risk of defeat, if it appear that the contract be a wager. Miller v. Eagle Life 5" Health Ins. Co. 375. INDEX. 765 Adjustment. Agency. 2. Who may sue. — The heir-at-law of one who has insured his life in his own name for her benefit, may bring an action for the insurance money in her own name as the real party in interest, under the Code, § 111. Hogle v. Guardian Life Ins. Co. 597. 3. Liability of company to agent. — An action was brought against an insurance company by the agent for breach of contract, whereby the company agreed to give the agent a certain percentage on renewals of policies while they continued in force ; held, that the action was sustainable, and that the probable duration of the policies might be proved. Ensworih v. New York Life Ins. Co. 645. ADJUSTMENT. Equitable adjustment. — In an action upon a policy which provided that " in case of forfeiture from the above, or any other cause, the party interested shall have the benefit of such equitable adjustment as may, from time to time, be provided by the board of directors ; " held, that this gave the directors fuU and exclusive discretion over the matter of adjustment, which could not be controlled by a court of justice. Nightingale v. Stale Mut. Life Ins. Co., and note, 695. ADMINISTRATION. 1. Insurance kegeived by administkatoe. — The administrator of the assured who had effected insurance upon his life for the benefit of his wife, whose death preceded his own, and who left children, has no interest in the insurance money under the statutes of this state, and will hold the same for the benefit of the children. Swan v. Snow, 206. 2. Liability of executor. — -If a policy of life insurance, expressed to be for the benefit of the widow and child of the assured, is made payable, upon his death, to his executor, the executor is liable to the child, as for money had and received to the child's use, for the child's share of the amount of the policy collected by him from the insurers, after deducting from such amount his expenses of collecting the same, including the expenses of taking out ad- ministration here, if this was the only estate of the deceased in this common- wealth. Gould V. Emerson, 258. 3. Title to policy. Declarations. — A policy of insurance, effected by the assured on his hfe, and expressed to be payable, on his death, " to his heirs or representatives," is not expressed to be for the benefit of any third person within the meaning of the Gen. Sts. u. 58, § 62, but is payable to the administrator as assets of the estate of the deceased; and oral declarations of the assured, after receiving it, that he intended it for the benefit of his son, are inadmissible to vary its construction, and insufficient to raise a trust in respect to its proceeds. Wason v. CoUrurn, 278. AGENCY. See Accident, 2 ; Confederate Money ; Payment. 1. Mode of payment. — Whether or not an agent has authority to dispense with the usual mode of payment and substitute another, is a question of fact, and not of law. Sheldon v. Connecticut Mut. Life Ins. Co. 27. 766 INDEX. Agreement. Assignment. 2. AtJTHOEiTT OF AGENT. — In an action upon a life policy which declared that it was not to be binding until countersigned by the agent and delivered and the advance premium paid, and these were the only words expressive of the agent's authority ; held, that he was not authorized to accept a subsequent premium after the time at which the policy expired by reason of the non- payment of such premium at the proper time. Boulon v. American Mut. Life Ins. Co. 61. AGREEMENT. Agreement not to sue except in the state in which the insurance company is located, is void, both as against public policy and the St. of Dec. 8, 1855, R. C. p. 884. Reichard v. Manhattan Life Ins. Co. 309. ASSIGNMENT. 1. Effected by threats. — Assignment by a married woman of a policy ' upon the life of her husband, efifected by threats of imprisoning the latter, and exciting the fears of the wife to such a degree that she nearly went into hysterics, is invalid. And an assignment by a married woman, of a life policy made for her benefit is invalid under the act of 1840, c. 80. Eadie v. Slimmon, 567. 2. Assent. — An assignment, without the assent of the insurers, to one who has no interest in the life of the assured, of a policy of insurance upon the life of the assignor, which provides that any assignment thereof without the assent of the insurers shall be void, passes no interest, legal or equitable. Stevens v. Warren, 297. 3. Notice. — Under the Civil Code, an assignment of a life policy, without notice to the office, will have no effect as to third persons, creditors of the insured, where there is no proof of the acceptance of the assignment by the assignee, and the policy remains in the hands of the assignor. Succession of Risky, 118. 4. Fraudulent assignment. — Assignment by the assured, an insolvent debtor, of life policies in trust for the benefit of his wife, without the knowl- edge of the creditors, held fi:audulent and void as to them. Appeal of El- liotts Executors, 672. 5. Notice to insurer. — Upon a bill of interpleader filed by a life insurance company against the personal representative of the assured and the assignee of the life policy, held, that notice of the assignment is not necessary to com- plete the right of the assignee to receive the insurance money from the in- surer. And this is true though the following words are written at the foot of the policy: "N. B. If assigned, notice to be given to the company." Mv^ tual Protection Ins. Co. v. Hamilton, 709. See New York Life Ins. Co. v. Flack, 146. 6. Husband and wife. — A life policy made for the sole use and benefit of a married woman by her husband is not assignable by her in case the husband survive the wife. Connecticut Mutual Life Insurance Co. v. Burroughs, 63. 7. Claim of assignee. <— A insured his life for the sole benefit of his wife and survived her. The wife assigned the policy with the knowledge and consenl INDEX. 767 Assignment. of the husband as security for a debt of the latter. The assignee paid one premium, when the insured died. On a bill of interpleader by the company to determine the rights of the wife's heir and her assignee, held, that the heir was entitled to the amount of the insurance less the sum paid as premium by the assignee, and interest thereon. Ibid. 8. Validity of assignment. — A life policy may be assigned, under the act of 1829, c. 51. New York Life Ins. Co. v. Flack, 146. 9. Assignment of part. — Where the insured, for a good consideration, as- signed part interest in his life poUcy, and gave notice to the company, but did not deliver the policy to the assignee, and afterwards became insolvent, and the insurance was paid to his administrator ; held, in an action at law against the administrator, that the assignee could not recover the whole in- terest assigned him. Palmer v. Merrill, 166. 10. Partial assignment valid in equity. — While a life policy cannot be assigned at common law, or under the Illinois statute, so as to pass the legal title to the instrument or money, stiU an assignment of such policy will be protected and enforced in equity ; and this too, though it be of but part of the insurance money. Pomeroy v. Manhattan Life Ins. Co. 96. 11. Separate property of married woman. — P., a maiTied woman, as- signed to H. $600 of her policy of $5,000, to secure a debt of her husband. Held, that being her separate property, she could pledge the policy, or part of it, as security for her husband's debt, and the assignment was valid in equity ; and this independently of the statute. Ibid. 12. Power of assured. — A provision in a life policy that the insurance money will be paid to the personal representative of the insured, is designed only to apply to a case where the assured died without having assigned the policy, and is not to be construed as limiting his power over the same. New York Life Ins. Co. v. Flack, 146. 13. Rights of widow. — The act of 1846, c. 216, § 3, though intended to prefer the' widow and children of the insured to creditors, can only apply where the claim has been left undisposed of by the insured. His power over it during his life is not at all affected by the act, but continues as ample and unrestricted as it would have been if the act had not been passed. Rison v. Wilkinson, 707. 14. Rights op creditors. — A insured his life for $2,000, and made two payments on the same. He then assigned the policy to B as security for a debt, and B thereafter paid the premiums regularly until the death of A, and then collected the insurance. He claimed the right to the whole amount of this money. A's widow and children also claimed the whole, disputing the legality of the assignment. Held, that the assignment was legal, but that B was entitled to no more than was sufficient to pay the debt of A, and re- imbtirse B in the amount of premiums paid ; and that the rest belonged to the widow and children. Ihid. 15. When assignee may sue. — Upon a policy of life insurance made by the assured for the use of his wife, and payable to the assured, his executors, administrators, and assigns, and assigned by him and his wife for valuable consideration with the assent of the insurers, the assignee may maintain an action at law against them after the death of the assured, although the policy 768 INDEX. Assignment. is expressed to be for the use of his wife and children, and he leaves a sur- viving child, and notwithstanding the St. of 1844, c. 82, § 1. — Gen. Sts. c. 58, § 62. Burroughs v. State Mut. Life Ins. Co. 222. 16. Distribution. — Where the husband applied for and obtained insurance on his life, accompanying the application with a transfer of the policy, when issued, to his wife, to whom he was indebted for her paraphernal funds received by him ; held, that the wife was entitled to the amount of the insur- ance on the husband's death. Succession of Richardson, \ Si. 1 7. Administration. — The assured, who had obtained life policies in his own name, assigned them in part as security for a debt, the balance to be paid to his widow ; and notice was given to the company of the assignment. Held, that the assignment was a complete transfer of the title, and that the fund was not subject to administration. McCord v. Noyes, 453. 18. Wife's claim. — By the terms of an assignment of a Ijfe policy the pro- ceeds of the policy were to be received by the assignee, and in case other securities held by him were insufficient to pay the debts thus secured, to apply said proceeds to the satisfaction of the claims of the assignee. The residue, if any, was to be paid to the assignor's wife for her sole and separate use. Held, that this constituted such a transfer and delivery as to take from the assignor all power over the policy ; that on the death of the assignor the insurance company had full authority to pay the money to the assignee, without the intervention of an administrator ; and that the wife's claim to the residue was valid. Harrison v. McConkey, 144. 19. Claim of child. — An assignment by a wife to a creditor of her husband of a policy of insurance effected by her in accordance with the Gen. Sts. c. 58, § 62, or the N. Y. St. of lS66, c. 656, on her husband's life for a certain term, and, in event of his death after hers, made payable to their child, can- not affect the right of the child to the amount of the policy upon the death of the husband within that term after the death of his wife, although made with the assent of the husband and of the insurers. Knickerbocker Life Ins. Co. v. Weitz, 261. 20. Delivery op assignment. — Delivery of an assignment to the attorney of the assignee is sufficient to vest the complete title in the latter against every one, except the creditors of the insured. New York Life Ins. Co. v. Flack, 146. 21. Practice. — By the articles of copartnership between M., V., and S., it was provided that in case of the death of S. during its continuance, unmar- ried, a policy of insurance effected by S. upon his own life should become the property of M. and Y. Held, that this vested the title to the policy, on the happening of the contingency, absolutely in M. and V., and entitled them to sue thereon in their own names. Valton v. National Loan Fund Assurance Society, 436. 22. Abandonment. Practice. — A insured her life for the benefit of her son, as a Voluntary provision for him. The policy was made out in the name of B as guardian of A's son. B loaned A the money to pay the first pre- mium, and also paid several succeeding premiums. A then went to B and said she could not keep up the premiums and was going to abandon the pol- icy, and that he, B, might have it if he would release her from the payment INDEX. , 769 Burden of Proof. Computation. of the back premiums and keep tie policy up thereafter. B took the policy and paid the premiums until the death of A, when the company paid to him the insurance money, for which he gave a receipt as guardian of A's son. Held, first, that there was a valid assignment of the policy to B ; secondly, tha* the son of A could not maintain an action against B for the insurance money, though the policy and receipt represented B as his guardian. Clark v. Du rand, and note, 721. 23. Notice. — In an action upon a life policy which required notice of assign- ment to be given to the company, without specifying any time, held, that notice two days after the death of the insured was sufficiently early. New York Life Ins. Co. v. Flack, 146. BURDEN OF PROOF. See Evidence. CASES CONFLICTING, DOUBTED, DENIED, OR CRITICISED. 1. Proof op death. — Taylor v. JEtna Life Ins. Co. 189 ; conflicts with Wood- fin V. AsTieville Mut. Ins. Co. 626. 2. Prospectus varying terms op policy. — Ruse v. Mutual Ben. Life Ins. Co. 467, 472, 481 ; conflicts with Mutual Ben. Life Ins. Co. v. Ruse, 83. 3. Previous declarations op the assured. — Rawls v. American Life Ins. Co. 549, 558 ; conflicts with Kelsey v. Universal Life Ins. Co. 76. See Fraternal Life Ins. Co. v. Applegate, 629. 4. Testimony of experts. — Hartman y. Keystone Ins. Co. 649; conflicts with Rawls v. American Life Ins. Co. 649, 558. 5. Disposal op life policy by will. — Kerman -v. Howard, 728; conflicts with Gould V. Emerson, 258. 6. Insurable interest. — Criticised, Bevin v. Connecticut Mut. Life Ins, Co. 19; doubted, in part, New York Life Ins. Co. v. Wager, 483. 7. Suicide. — Breasted v. Farmers' Loan Sf Trust Co. 341, 343 ; conflicts with Dean v. American Mut. Life Ins. Co. 195 ; Nimick v. Mutual Benefit Life Ins. Co. 689 ; and Cooper v. Mass. Mut. Life Ins. Co. 758. 8. Suicide. — Doubted, in part, Hartman v. Keystone Ins. Co. 649. 9. Receipt op premium, acknowledgment of. — Provident Life Ins, Co, V. Fennell, 99 ; conflicts with Pilt v. Berkshire. Life Ins. Co. 284. 10. Interpretation. — " Heirs or representatives,'' Wason v. Colburn, 278 ; conflicts with Loos v. John Hancock Life Ins, Co. 315. COMPUTATION. 1. Accident policy. — A policy of insurance "for the period of twelve months " from noon of the day of its date to noon of the day of Its expiration, was made " against loss of life " of the assured, in a sum payable to his widow on proof " that the assured at any time after the date hereof, and be- fore the expiration of this policy, shall have sustained personal injury caused by £tny accident," " and such injuries shall occasion death within ninety days from the happening thereof." By an accident which happened at nine 49 770 INDEX. Concealment. Confederate Money. o'clock in the forenoon, the assured sustained personal injuries which occa- sioned his death about the same hour on the ninety-first day thereafter, ex- cluding the day of date of the accident from the computation ; the whole period being included within the twelve months. Held, that by no method of computation of time could the death be regarded as occurring within ninety days from the happening of the accident. Held, also, that the clause limiting the liability of the insurers to the occurrence of death from the in- juries within ninety days from the happening of the accident was not incon- sistent with the provision by which the insurance was expressed to be "for the period of twelve months ; " nor could it be construed to refer only to such injuries as should occasion death within ninety days after the twelve months. Perry v. Prooident Life Ins. Co. 263. "S. Thirty days. — Premium which is required to be paid thirty days from the 28th of May, must be paid on or before midnight of the 27th of June. Campbell v. International Life Assurance Society, 522. CONCEALMENT. SeeWARKANTY AND REPRESENTATION; HEALTH. 1. Duty of disclosure. — It is the duty of the insured to disclose all material facts within his knowledge ; and the concealment of a material fact, when a general question is put by the insurers which would elicit that fact, will vitiate the policy whether the statement becomes a warranty or not. Vose v. Eagle Life §• Health Ins. Co. 161. 2. Concealment. — If the insured answered truly all the questions put to him it was not necessary for him to make any statement in respect to any partic- ular habit, not called for by any general or specific question put to him ; and the omission to make such statements, under such circumstances, would not be a concealment avoiding the policy. Rawls v. American Life Ins. Co. 549. Affirmed on appeal, 558. CONFEDERATE MONEY. Agency. — C. was the special agent for the defendant company, a fore^n "corporation, from the spring of 1858. Renewal receipts for the premium were issued to him by the company's general agents at New York, and constituted his authority to receive the premiums. After June, 1861, owing to the rebellion, none of these receipts were issued to C. ; but from that time it was claimed by the plaintiff that the premiums were received by the local agent under a verbal authority by which renewal receipts were from that time dispensed with. The only currency in circulation in Rich- mond at this time was confederate money, and with this the insured paid his premiums regularly to the time of his death. The jury having found that C. was authorized to act without the renewal receipts, it was held, that the agent was authorized to receive confederate notes, under the circumstances, and that the company were liable. Robinson v. International Life Assurance Society, 601. INDEX. 771 Conspiracy. Death. CONSPIRACY. OccTTPATiojsr. — What business a firm is engaged in, or with whom they deal, can have no bearing upon the question of a conspiracy on their part to defiraud an insurance company by procuring a policy upon the life of one of their own number for their own benefit, and then murdering or secreting the assured. Vallon v. National Loan Fund Assurance Society, 304. Reversed on appeal, 436. CONTRACT, WHEN COMPLETE. See Delivery. CONVEYANCE, PUBLIC OR PRIVATE. See Accident, 3. COUNTERSIGNING. It seems that a provision that the policy shall be countersigned by the agent need not be complied with. Myers v. Keystone Ins. Co. 668. DAMAGES. Vexatious refusal to pat. — Under the Missouri statutes the jury may give damages against an insurance company for vexatious refusal to pay the amount of insurance if they are satisfied there was such refiisal. Brown v. Railway Passenger Assurance Co. 321. DEATH. See Violation of Law, Death in ; Accident, 6 ; Intemperance, 1 ; Resistance to Lawful Authority ; Evidence. 1. Proof of death. — In an action upon a life policy payable ninety days after due notice and proof of death, the plaintifi" consented to the admission in evidence of a pamphlet which stated that the company required " a certifi- cate ii'om the physician who attended the party during his last sickness, stat- ing particularly the nature of the disease, its duration, and the time of death." This certificate was required to be on oath. The pamphlet was not made part of the policy. Held, that even though this requirement were a by-law of the company, the plaintiff was only bound by the policy, and was not re- quired to furnish the certificate, unless by a usage of the company made known to him at the time of effecting insurance. Taylor v. JEtna Life In- surance Co. 189. 2. Proof of Death. — The by-laws of a mutual life insurance company con- tained a provision, requiring notice of loss forthwith, and a particular account 772 INDEX. Death. on oath or affirmation of the circumstances therewith connected. It was admitted that the plaintiff had not given formal notice, with the circumstances of the loss, on oath ; but it was also admitted that he had given informal no- tice as soon as the loss occurred. Held, that the action, could not be main- tained. Woodjin V. Asheville Mutual Ins. Co., and note, 626. 3. Pkoof of death. — On the trial of an action upon a policy of insurance made payable to the plaintiff after due notice and proof of the death of the insured, the plaintiff, to show such notice and proof, called a witness Trho testified that he delivered to the insurers some affidavits, together with some cuttings from newspapers and letters between persons not parties to the action. All of these the insurers produced ; and the plaintiff put the affida- vits in evidence, but declined to put in evidence the cuttings or the letters, and the judge refused to require him to do so, or to permit the insurers to do so themselves. Held, that the refusal was not a valid ground of exception, unless it plainly appeared that the insurers were prejudiced thereby ; and that they were not so prejudiced, if the fact of the death of the insured was sufficiently shown, whether the affidavits alone, or all the papers together, were considered as the proof thereof furnished to them by the plaintiff. Cluffv. Mutual Benefit Life Ins. Co. 265. 4 Proof of death. — Au insurance company may waive defects in the pre- liminary proofs, and may, if they please, dispense with tHem altogether ; and where they place their refusal to pay upon a ground distinct from that of full notice and proof of death, they are deemed to waive any further compliance with the condition as to such notice and proof. And the company cannot, two months afterwards, and just before suit is brought, and without any pre- tence that they had been deceived or mistaken, change their ground and in- sist on better proof of death. Miller v. Eagle Life §" Health Ins. Co. 375. 5. Proof of death. — Where a third party left affidavits with the insurers of the death of the insured, and the plaintiff notified the office of the death, and referred to the affidavits for proof thereof; held, sufficient proof of the death. Loomis v. Eagle Life §• Health Ins. Co. 1 75. 6. Reasonable notice. — In an action upon a life policy which required notice of death to be given to the company or their agent " as soon thereafter as possible," it was proved that the insured died at a place from which notice "of the death could be sent to the company in one day. It was further proved that the policy was in the trunk of A in the city where the company's office was located, and that the party to whom the insurance money was to be paid never had possession of and never saw the policy until eight or ten days after the death of the insiu'ed, when he immediately notified the company of the death. The company then handed him a blank affidavit in regard to the death, and stated that it would be sufficient if he returned the same within three or four weeks, which he did. Held, that the company received notice within reasonable time. Provident Life Ins. Co. v. Baum, 108. 7. Catjse of death. — Certain facts which authorized the jury in finding that the death of the assured was caused by an overdose of chloroform and not by delirium tremens. New York Life Ins. Co. v. Graham, 114. INDEX. 773 Delivery. DELIVERY. See Evidence, 11. 1. When contract complete. — To the objection that there could be no insurance because there had been no delivery of the policy, it was held, that an instruction was correct, that when application has been made and ap- proved and accepted, and a policy made and executed, and notice of such execution given to the assured, — facts in proof in this case, — the contract of insurance is complete, and the applicant is entitled to the policy. Sheldon V. Connecticut Mutual Life Ins. Co. 27. 2. When contract cosipletb. — A made an application for an insurance upon his life, for the benefit of his wife, on the 27th of September, proposing to pay the first year's premium in advertising. The application was approved and a policy issued on the 2d of October, which was sent to the agent of the insurers and received by him on the 5th of October. On the 29th of Septem- ber, two days after the application was made, the insured was taken sick and died the day before the agent received the policy. The agent immediately returned the policy to the company. Held, that the contract was complete on the 2d of October. Kentucky Mutual Life Ins. Co. v. Jenks, 101. 3. When contract complete. — At an interview with an applicant for life insurance, the agent of the insurance company ofiered the policy to him and asked him to pay the premium, but was referred by him to a third person who had previously arranged with the applicant to pay it. The agent agreed to call on this person for it ; but never did so, and retained the policy in his own possession. Held, that instructions were erroneous which permitted a jury to find that these facts were equivalent to actual delivery of the policy and payment of the premium. Hoyt v. Mutual Benefit Life Ins. Co. 253. 4. Consummation of contract. A paid a certain amount as premium on a proposal of life insurance, to the agent of a foreign company, which was to be sent to L. the company's head office. If the proposal should be accepted a policy was to be issued ; if declined, the sura paid as premium was to be re- turned. If the insured should die before the decision of the head office the sum insured was to be paid. The agreement to this efieot, signed by the agent, was sent to the company, the proposal accepted, and a policy sent back to the agent. This was never in fact delivered to the plaintiff, and the agent, upon request, refused to give it to the plaintiff. Before the end of the year, plaintiff tendered the premium for another year, which was refused. The insured died before the end of that year. Held, that the contract was fully consummated, and that the facts stated constituted all the legal delivery required. Held, also, that the tender of the second premium was equivalent to payment. Fried v. linyal Ins. Co. 588. 6. Conditional Delivery. — The deceased agreed with the defendants' agents upon an insurance on his life, upon terms subject to ratification by the company, and the application was forwarded. The company made out a policy differing in -terms from the one agreed upon, and their agents sent it to the applicant with a request to return it if he did not wish to comply with 774 INDEX. Delivery. Distribution. the new terms. He retained the policy without complying with the require- ment. Held, that the delivery was conditional, and that there could be no recovery upon the policy by reason of the non-compliance with its terms. Myers v. Keystone Mutual Life Ins. Co. 668. 6. Advance premium not paid. Life policy not delivered, not bind- ing ON company. — S. W. Kennedy applied to the St. Louis Mutual Life Insurance Company for an insurance on his life, his written application con- taining this covenant : " I further agree that the assurance proposed shall not be binding upon the company until the amount of premium as stated therein shall be received by said company or an accredited agent thereof, in the life- time and good health of said S. W. Kennedy." The policy contained the stipulation, "Not binding on the company until coun- - tersigned by S. K. Foote or D. C. Smith, Louisville, Kentucky, and advanced premium paid." Simultaneously with his application Kennedy executed his two notes, one due in one year and the other due on the delivery of the policy — the latter note being for the amount of the cash premium, charge for policy, &c. The policy, after being duly countersigned, reached the local agent after Kennedy was taken sick, of which sickness he died, and the policy was never delivered, and the advance premium was never paid, nor was payment thereof tendered. Held, First, there was no consummated contract of insurance binding the company, as the advance premium was not paid. Secondly, the note for the " advance premium " was executed and delivered by the applicant and received by the agent of the company as a memorandum merely, and not as a payment of the cash premium or a waiver of the con- dition precedent. Thirdly, the policy was an escrow in the hands of the agent, the applicant having failed to perform the condition which would have entitled him to its delivery, and its recitals could not be used in behalf of the representative of the de- ceased. St. Louis Mutual Life Insurance Co. v. Kennedy, 753. DISTRIBUTION. 1. Claim of child. — A policy of life insurance for the sole and separate use of the wife vests, upon her decease before that of her husband, in her child. Upon the death of the wife, followed by that of her child, before the death of the insured, the insurance vests in the last named as heir at law of the child. Upon the death of the insured thereafter, the issue of the husband by a former wife is entitled to such sum as is over and above the premium paid by the deceased for insurance, and interest, without administration. LMyy. Lihby, 136. 8. Insurance by creditors upon the life of debtor. — Creditors taking out a policy of insurance on the life of an infant debtor, and with his consent, they paying the premium and other expenses, are entitled, on the death of the infant, to the proceeds of the policy to the extent of their debt ; whether the policy be taken in their names, or in the name of the infant. Rivers v. ' Gregg, 704. INDEX. 775 Divorce. Evidence. DIVORCE. Rbfusai, of pbemittm by the coMPAiTT. Recovebt of back pat- MBNTS. McKee v. Phoenix Ins. Co. .?06. ENDOWMENT POLICY. See Briggs v. McCuUough, 1. ESTOPPEL. See Premium, 1, 2. 1. Forfeiture. — Where an insurance company take a note for the premium and receipt the same as cash, and the insured has died after the maturity of the note, without having paid the same, the company are estopped from set- ting up a forfeiture of the policy against the party for whose benefit the same was underwritten, and who had no knowledge that the note had been taken and had not been paid. Baker v. Union Life Ins. Co. 595. See Provident Life Ins. Co. v. Fennell, 99. But see Pin v. BerksUre Im. Co. 284, 288. 2. Forfeiture. — If it was the practice of the company to notify the plaintiff of the times when her premiums were due, and they omitted to do so on the occasion of the default ; or if they had dealt with her so as to induce a belief that the clause of forfeiture would not be insisted on, in case of dereliction of payment at the day, and thus put her off her guard, they cannot take ad- vantage of the default. Helme v. Philadelphia Life Ins. Co. 685. EVIDENCE. See Health, 1, 2, 5 ; Experts ; Accident, 7 ; Death ; Husband and Wipe, 3 ; License, 3 ; Premium, 26. 1. Pbospectus varying terms of policy. — A prospectus of a life insur- ance company, not referred to in the policy, nor any way annexed thereto, is inadmissible in evidence to vary the policy. Ruse v. Mutual Benefit Life Ins. Co. 472. Reversing S. C. 467. But see S. C. 481 and note. See also Mutual Benefit Life Ins. Co. v. Ruse, 83, holding the prospectus admissible. 2. Previous declarations. — In an action upon a policy on the life of a debtor in favor of his creditor, the previous declarations of the insured, in respect to his own habits, are inadmissible, being hearsay. So a, question propounded to a physician as to whether a person in the habitual use of in- toxicating drink is an insurable subject, is inadmissible. Rawls v. American Life Ins. Co. 549. Affirmed on appeal, 558. Contra, Ktlsey v. Universal Life Ins. Co. 76. 3. Previous declarations of insured. — Declarations of the insured made several months before his application, that he intended to effect an in- surance upon his life are inadmissible to rebut evidence of the defendant tend- ing to show that the insurance was effected with a view to suicide. Hartman V. Keystone Ins. Co. 649. ■rre index. Evidence. 4. Testimony op experts. — The testimony of the company's clerk that he considered slave-catching a dangerous business, and that a risli would not be taken at any premium on the life of one known to be so engaged, is admis- sible ; though there was nothing in the printed rates of premium to show that persons of this class were considered hazardous subjects. Ibid. See infra, 8. 5. An established custom among insurance companies as to an agent's property in policies procured by him may be introduced to explain such con- tract. Ensworth v. New York Life Ins. Co. 645. 6. Custom of insurance companies. — In an action to recover premiums, which had been forfeited by non-payment on the day when they became due, evidence may be received to show a general custom among life insurance companies to allow thirty days for payment after the day stated in the policy. Helme v. Philadelphia Life Ins. Co. 685. 7. Parol evidence is admissible to show that a written assignment of a pol- icy was intended as collateral security for an obligation which had been dis- charged before the suit was brought. Summers v. United States Ins. Co. 131. 8. Hazard. — Testimony was properly rejected to the effect that the company would not have insured at the rate they did, had it been known that the slave would have been subjected to the risk of a voyage on a steamboat. Ibid. See supra, 4. 9. Death in known violation op lavt. Trial and acquittal of SLAYER. — On the trial of an action on a policy of insurance upon the life of the insured, made on condition that it should be void if he should die in the known violation of any law, the record of the trial and acquittal by a court of competent jurisdiction of a person who killed the insured is incompetent to prove that the condition was broken. CLuff v. Mutual Benefit Life Ins. Co, 265. See Violation of Law, Death in. 10. Premium note. Burden of proof. — In order to avoid a policy of in- surance made and accepted on condition that it should cease and determine upon failure by the assured to pay, when due, a premium note given by him to the insurers, the burden is upon them to prove non-payment. Hodsdon v. Qvardian Life Ins. Co. 218. 11. Burden of proof. — In an action upon a life policy where the plaintiff' produced evidence of the truth of the statements of the declaration and those accompanying the policy respecting the health of the assured at the time of effecting assurance ; and the defendants by pleas averred that the assured was not a sound or insurable life, held, that the burden of proof was upon the defendants to establish the truth of these pleas. Trenton Mutual Life Ins. Co. V. Johnson, 327. 12. Parol evidence. Consummation of contract. — In defence against an action on a policy of insurance expressed to have been " executed and delivered," but in fact never delivered, parol evidence is admissible that it was agreed between the parties to the instrument that it should issue only as a substitute for a previous policy to be surrendered, which never was sur- rendered, but enforced and paid. Faunce v. State Mutual lAfe Ins. Co. 292. INDEX. 777 Examining Physician. Health. EXAMINING PHYSICIAN. See Physician, Examining. EXEMPTION. Exemption of life insttkances from execution. — Under the statute of March 28, 1868, (Sts. 1868, p. 500,) exemptuig life insurances from execu- tion, " provided, however, this exemption shall not extend beyond such moneys, benefits, rights, privileges, and immunities, as have been, or might have been secured by the payment of an annual premium, not exceeding $500," it must appear that the policy is not of the excepted class ; and the party claiming the exemption must show affirmatively that his case is within the provisions of the statute. Briggs v. McCullough, 1. EXPERTS. Their testimony admissible. — Hartman v. Keystone Ins. Co. 649. Contra, Rawls V. American Life Ins. Co. 549. AflBrmed on appeal, 658. See Sum- mers v. United States Ins. Co. 137. FORFEITURE. See Premium ; Agency, 2 ; Estoppel ; License, 3. HAZARD. 1. Increase of hazard. — By the terms of a Ufe policy a slave was insured as a laborer in a tobacco warehouse ; and the policy declared that he was not to be employed in any more hazardous occupation. While on his way to a sugar plantation, with intent to labor there, he was drowned. Held, that the company were liable, even though working upon a, sugar plantation were more hazardous than working in a tobacco warehouse ; for the slave had not reached the plantation and was not laboring there when drowned. Summers T. United States Ins. Co. I SI. See Evidence, 8. 2. Occupation. — The insured in his application stated that his occupation was that of farmer. It was proved that his real business was that of slave- catcher. Held, that the policy was avoided ; slave-catching being proved to be a more hazardous employment than farming ; held, also, that the occupa- tion which the insured was bound to disclose to the office was that in which he was engaged at the time he made the appUcation. Hartman v. Keystone Ins. Co. 649. HEALTH. See Physician, Examining. 1. Admissions. — In an action upon a life poUcy by the party for whose ben efit it was made, letters of the insured written a few days before the applica- 778 INDEX. Health. Husband and Wife. tion was made, in which she speaks of the state of her health, are admissible in evidence to contradict the statements made in the application. Kelsey v. Universal Life Ins. Co. 76. Contra, Bawls v. American lAfe Ins. Co. 549, 568. See Fraternal Mut. Life Ins. Co. v. Applegate, 629. . Post mortem examination. — A post mortem examination which revealed the fact that the insured died of inflammation of the intestines and ulceration, is not evidence that he was afflicted with these disorders four months before, at the time of insuring, though the phj'sicians expressed the opinion that the disorders were of long standing ; especially where there is evidence that he was examined before being insured by the company's physician and accepted, and had been seen daily for some months before, and appeared to be in per- fect health. Murphy v. Mutxud Benefit Life Ins. Co. 122. . Ignorance as to the true state of health. — It is immaterial that the insured may not know that he is afflicted with a disease which is material to the risk. If he is so afflicted, and the fact is not stated, the policy is vitiated. And where the insured stated that he was suflTering from general debility, the fact being that he was actually in consumption, and he had been aware of the symptoms for some mouths, and they were sufficient to indicate the nature of the disease, though in fact he did not know that he had con- sumption I held, that the policy, which was conditioned to be null in case of a concealment of any material fact, was avoided. Vose v. Eagle Life If Health Ins. Co., and note, 161. . Knowledge of the company's agent as to the health of the insured will not affect the insurer. Ibid. . Renewal policy. — In the case of a renewal of life insurance, where no new conditions respecting health are imposed, and only a general condition is inserted that the party is in " good health," this expression must be con- strued by the terms of the original policy and the statements therein made respecting health. And therefore, when the insured is in substantially the same state of health when the insurance is renewed as when it was originally effected, and no new forms of disease have been developed meanwhile, the company will not be relieved, upon his death, for the reason that he was not in absolutely perfect health at the time of renewal. Peacock v. New York Life Ins. Co. 455. Affirmed on appeal, 465. . Preliminary proofs. — • The plaintifi' need not lay before the office, be- fore bringing suit, proof that the assured was in good health at the time of renewing a life policy, unless this is a condition of the renewal policy ; and if such preliminary proofs are actually furnished, and are deemed defectr ive, the office should call attention to the defect, or it will be deemed to be waived. lUd. HUSBAND AND WIFE. . Powers of married women. Disposal of life policy by will. A married woman procured a policy of insurance upon the life of her husband in her own name and for her own use, as authorized by § 1 of the act of April, 1840. The insurance was made payable to her children in case of her death before that of her husband. The wife subsequently executed a paper propounded as a will in this case, by which she attempted to dispose of her INDEX. 779 Illegal Traffic. Insurable Interest. policy, in which no power of disposal was given. Held, that under the stat- ute she could not dispose of the policy of insurance hy will, even with the assent of her husband. Moehring v. Mitchell, 353. 2. Wife's sepakate pkopekty. — Under the general law relating to life insurance, which provides that " it shall be lawful for any married woman by herself, and in her own name," &c., "irom her separate property, to cause to be insured for her sole use the life of her husband ; " and the 8th section of the act incorporating The Fraternal Mutual Life Insurance Company, 49 O. L. 220, which provides that any married woman may insure the life of her husband for her sole use, " and in case of her surviving him, the amount shall be payable to her for her sole use and benefit, free from any claims of the creditors, or representatives of her husband ; " held, that these provisions treat the wife as a feme sole in respect to policies of insurance taken out in her name upon the life of her husband, and place such policies beyond the reach of the husband, and that a subsequent surrender by him of such a pol- icy would be unauthorized and void. Fraternal Mutual Life Ins. Co. v. Ap- plegate, 629. 3. Admissions of the husband respecting the wife's separate property, and prejudicial to her interests, are inadmissible. Tbid. 4. Disposal of life policy by will. — Where a husband had effected an insurance upon his life for the benefit of his wife or her legal representatives, and had paid the premiums thereon himself, held, that having survived the wife, he could dispose of the policy by will. Kerman v. Howard, 728. Cort- tra, Gould v. Emerson, 258. See Rison v. Wilkinson, 707 ; New York Life Ins. Co. V. Flack, 146 ; Knickerbocker Life Ins. Co. v. Weitz, 261. ILLEGAL TRAFFIC. When not prejudicial. — Illegal traffic engaged in by the insured, and not being prohibited by the policy, will not prejudice the rights of the plaintiff, for whose benefit the insurance was effected, if she did not participate in it, and knew nothing of it. Lord v. Dall, 154. INJUNCTION. Injunction by agent entitled to premiums. — One who has been dis- charged as agent by an insurance company, and who is entitled to commis- sions on premiums, cannot maintain an injunction to restrain the collection of such premiums. Machette v. Hodges, 682. INSURABLE INTEREST. See Practice and Pleading, 4. 1. Sister's interest in life of brother. — The plaintiff, a yoimg female without property, was and had been for several years supported and educated at the expense of her brother, who stood towards her in loco parentis. In an action upon a life policy effected by him for her benefit, held, that she had an insurable interest in his life. Lord v. Dall, and note, 154. 780 INDEX. Insurable Interest. 2. What will constitttte. — It is not necessary in New Jersey for the plain- tiff to proTe an insurable interest in the life insured. But if any interest were necessary, it need not be such as to constitute any direct claim upon the in- sured ; it is sufficient if any indirect advantage may result from the life. TreTtton Mutual Life Ins. Co. v. Johnson, 327. See infra, 17. 3. What will constitute. — It is sufficient basis for the contract of life in- surance if, in the ordinary course of events, loss and disadvantage will natu- rally and probably arise to the party in whose favor the policy is written from the death of the party insured ; and the policy is valued at the sum insured. Hoyt V. New Yofk Life Ins. Co. 497. 4. Insukance on one's own life. — An action may be maintained on a policy of life insurance, obtained by a man on his own life, without proving an insurable interest therein in the person for whose benefit it is declared on its face to be made. Campbell v. New England Mutual Life Ins. Co. 229. See infra, 18. 5. Insurance by debtor. Recovery. — A debtor may insure his life in favor of his creditor in a sum exceeding the amount of the debt, the balance to inure to the benefit of his widow ; and the office will be held to the full sum insured. American Life §• Health Ins. Co. v. Robertshaw, 666. 6. Statute or Limitations. — A policy upon the life of a debtor is not af- fected by the fact that the statute of limitations has run against the debt since the insurance was effected ; nor will the fact that the debt was due to the plaintiff as a member of a partnership affect the validity of the policy. Rawls V. American Life Ins. Co. S49. Affirmed on appeal, S. C 558. 7. Assignment. — The assignee, for value, of a life policy, may recover the full sum insured, without regard to the sum advanced by the assignee to the assignor, in consideration of which the assignment was made. >S(. John v. American Mutual Life Ins. Co. 359, 372. 8. Assignment. — A party who has obtained a policy in his own name has a right to dispose of it as he wUl ; and it is no defence that the assignee had no interest in the life. Valton v. National Loan Fund Assurance Society, 436. 9. When necessary. — It is necessary that a party insuring the life of an- other for his own benefit should have an interest in that life. Bevin v. Con- necticut Mutual Life Ins. Co. 19. 10. Life policy, a valued one. — A advanced B $350 and then insured B's Ufe, for his own benefit, in the sum of $1,000. B was to go to California and there engage in mining, and in consideration of the sum loaned by A was to divide the profits equally with B. Held, that this was a valued policy, and that A was entitled to recover the sum insured. Ibid. See infra, 1 7. 11. Practice. — Insurable interest need not be shown to the office before the commencement of the action where no such preliminary proof is required by the policy. Miller v. Eagle Life §• Health Ins. Co. 375. 12. Accident insueancb. — A effected an insurance upon his life against injury and death from accident, payable in case of death from accident to B. A died from a gunshot wound within the time for which he was insured. In an action upon the policy by B, held, that he need not prove an insurable in- terest in the life of A. Provident Life Ins. Co. v. Baum, 108. 13. Pleading. — To put the plaintiff to the proof of an insurable interest there INDEX. 781 Insurable Interest. should be a special denial in tie answer of such interest. Per Lea, J., where the interest in the life of the assured is actually and definitely ascertained, that is the measure of recovery. Kennedy v. New York Life Ins. Co. 123. 14. Interest at time or stjit. — if the plaintiff had an insurable interest in the life at the commencement of the risk, it is not necessary that such in- terest should exist at the time of suit. And in the absence of express stipu- lation to the contrary, the sum expressed on the face of the policy is the measure of recovery. Mowry v. Home Ins. Co. 698. 15. MnroB child. — A father has an insurable interest in the life of his minor child. Mitchell \. Union Life Ins. Co. 131. Loomis v. Eagle Life Ins. Co. 175. 16. Creditor in life of debtor. — The creditor of a fihn has an insurable interest in the life of a member of that firm, and may recover the amount in- sured ; and it is no answer that the estate of the insured was solvent, and that the other joint debtor was able to pay. So, also, a party has an insurable in- terest in the life of one with whom he had a contract, by which he was to receive one quarter of the earnings of the insured in the mines of California. Morrell v. Trenton Mutual Life Ins. Co. ITO. 1 7. At common law wager policies are valid. And under the statute, a con- tingent and imcertain interest in the life assured, whether in the end it may prove more or less productive, is suflieient basis for a life policy. And it matters not that the interest, having relation only to services and earnings, the proceeds whereof were to be equally divided with another, was an interest held jointly and as partnership property ; the policy is still a valued policy, and the sum insured is the measure of damages. Miller v. Eagle Life Sj' Health Ins. Co. 375. See supra, 2, 3, 10. 18. Insurance on one's own life. — When a party insures his own life the legal presumption is that it is for his own benefit. A party has an insur- able interest in his own life ; and no use by him of the policy, subsequently to the contract of insurance, can convert it into a wager policy. If valid in the inception, he may dispose of it as he pleases. Valton v. National Loan Fund Assurance Society, 409. 1 9. M., v., and S. formed a partnership ; M. and V. agreeing to furnish the capital against the skUl of S., who furnished no money. In order to indem- nify M. and V. it was agreed that S. should insure his life, the money to be paid to M. and V. in case S. should die unmarried. The insurance was effected in the name of S., though M. took an active part in securing the policy. Held, that as S. effected the insurance for himself, and not as agent for M. and V., and in part at least for his own benefit, the policy was valid, and the company were liable. Ihid. 20. What proof necessary. — In the plaintiff's application- for insurance upon the life of the deceased, which application was accepted by the oflSce, he stated that he had an' interest in the life insured to the full amount of insur- ance. Held, to be sufficient proof of interest. Ruse v. Mutual Benefit Life Ins. Co. 467. Reversed on appeal, 472. 21. Insttkance to secure advances. — W. obtained insurance upon the life of F. to seciu-e himself the amount of prior and subsequent advances, and so notified the agent at the time ; held, that he was entitled to the amount of the debt due at the death of F., and if he knowingly claimed and received 782 INDEX. Intemperance. Law of Place. more than that amount, the company were entitled to recover the excess. New York Life Ins. Co. v. Wager, and note, 483. , INTEMPERAIJCE. 1. Death fkom use op intoxicating drink. — If the insured was, at the time of issuing the policy, and at the time of renewing the same, temperate and in good health, the fact that he died from the excessive use of intoxicate ing drink is immaterial. Reiehard v. Manhattan Life Ins. Co., and note, 309. 2. Excessive Intemperance. — The occasional use of intoxicating liquors does not come within a provision against the excessive use of intoxicating liquors or opium. Mowry v. Home Ins. Co. 698. INTEREST. When allowed. — The Missouri statute allows interest at the rate of six per cent, per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts ; and it was not error for the court below to instruct the jury to allow interest on an accident policy from the time of notice of loss. Brown v. Railway Passenger Assurance Co. 321. INTERPRETATION. Payable to "heirs or representatives." — In an action upon a life policy payable to the " heirs or representatives " of the assured, the ordinary meaning is that it is payable to his executors or administrators ; but if the language used is such as to imply that the intention of the assured was to make the insurance payable to his family, this intention will prevail. Loos V. John Hancock Life Ins. Co. 315. But see Wason v. Colburn, 278. JU£>GE AND JURY. See Materiality; Preliminary Proofs. LAW AND FACT. See Materiality ; Preliminary Proofs. LAW OF PLACE. Application for life insurance was made in Chicago to a company located in New York. The application was forwarded to the home office in New York, and a policy returned, containing a condition that it should not be binding until countersigned by M. of Chicago, and the advance premium paid. This condition was complied with in Chicago. Held, that the contract was exe- cuted in Illinois. Pomeroy v. Manhattan Life Ins. Co. 96. INDEX. 783 License. LICENSE. 1. "Settled limits of the United States." — This expression in a pol- icy conditioned to be void if the assured " pass beyond the settled limits of the United States, except into the settled limits of the British provinces," means the established boundaries of the Union ; and therefore such a policy is not avoided by the death of the insured beyond the region of actual settlement, but within the territorial limits of the country. Cosier v. Connecticut Mut. Life Ins. Co. 540. 2. Act of God. — In an action upon a life policy, indorsed upon which was a permit to the assured to reside " in any part of the United States, to be north of the south bounds of Virginia by the 10th of July, 1854," it appeared that on the 11th of June, 1854, the assured, then in Florida, was taken sick, and was thereby rendered unfit and unable to start north, and died from this at- tack on the 20th of July, 1854 ; that this was the sole cause why he did not return north ; and that he was not guilty of any default or neglect. Held, that the sickness and death, being the visitation of God, the license was not broken, and the company were liable. Baldwin v. New York Life Ins. Co. 504. 3. Parol evidence. Waiver. — In an action upon a life policy, it appeared that the insured was not allowed to pass the limits of the United States without permission of the company ; and that indorsed upon the policy was a permit to pass from any port of the United States, in decked vessels, to and from any port in North or South America, C. excepted, and to reside in Cali- fornia and adjacent country for one year. It appeared further that before departing under this permit, the insured told the secretary of the company that he was going by way of Vera Cruz, and thence across Mexico, and that the secretary remarked that such a course would do him good, and thereupon made the medical examination ; that the policy was not issued or the first premium paid until sometime after the departure of A, and after the com- pany had reason to believe that he had taken the route which he said he should and did ; and that the company continued to receive the annual pre- miums up to the time of the loss. Jleld, that evidence to this effect was admissible to show the knowledge of the company as to the route taken by the assured ; and that their conduct amounted to a waiver of any forfeiture. Bevin v. Connecticut Mut. Life Ins. Co. 19. 4. Change of route. — A life policy conditioned to be void if the assured should pass the limits of the United States, was indorsed with a permit to the insured to make one voyage out and home to California round Cape Horn, or by Vera Cruz. The insured returned by way of Panama and Chagres. Held, that the policy was avoided, though the route actually taken was the safest and shortest. Hathaway v. Trenton Mut. Life Ins. Co. 172. See infra, 8. 5. Vessel. — License to pass by sea in first-class vessels, is not vitiated by taking passage as a steerage passenger. Taylor v. ^tna Life Ins. Co. 189. 6. Residence. — An insurance upon the life of S. as a resident of Valparaiso, gave him a right to reside there without further permission ; and an indorse- 784 INDEX. License. Materiality. ment upon the policy of a permission to reside there upon the payment of a sum not named, leaving a blank for the amount, and delivered intentionally in that condition, cannot operate to vitiate the policy, though no additional sum was paid. And a sum paid by the agent of the assured without author- ity, and upon no contract by the parties, for permission of his principal to reside abroad, will not have the effect to change the contract already made, and the money so paid may be recovered. Forbes v. American Mut. Life Ins. Co. 191. 7. Military Service. — A life poUcx was issued conditioned to be void if the assured should enter into any military or naval service of the country without the insurance company's consent ; or if he should, without such consent, visit those parts of the United States which lie south of the thirty-sixth degree of north latitude, between the first of June and the first of November. On the policy was indorsed a permission to the insured to pass these limits and reside beyond them for a year, provided that he was not insured " against death from any of the casualties or consequences of war or rebellion, or from belligerent forces where he is." The insured passed said limits in October, and engaged in constructing and repairing bridges for the government, to be used for mili- tary purposes ; he himself being in the service of, and paid by tbe govern- ment. He was killed during that month by a roving band of robbers, far in the rear of the Union armies. A portion of the robbers wore the federal uniform. In an action upon the policy, Jield, that the company were liable. Welts V. Connecticut Mut. Life Ins. Co. 581. 8. Beyond limits. Death prom constitutional cause. — In an action upon a life policy conditioned to be void in case the assured should go be- yond certain limits, at certain seasons of the year, and there remain for more than five days at a time, without the consent of the office, it appeared that the insured, Protestant Episcopal Bishop of Rhode Island, did, within the said time, go beyond the limits allowed, without the consent of the company, for the purpose of performing episcopal functions, and that he remained there ten days. He was then attacked with apoplexy and died; but it was in proof that the death was neither caused nor hastened by the change of climate, but grew out of constitutional causes alone. Held, that the condition of the policy was broken. Nightingale v. State Mut. Life. Ins. Co. 695. See supra, 4. LIFE INSURANCE. Legality op. — The contract of life insurance is legal. Lord v. Dall, 154. MATERIALITY. Law and pact. — If at the trial of an action on a policy of life insurance the judge rules that a representation upon which the policy was issued is material, the insurers cannot except to the exclusion of evidence that it was material. And whether the presence or absence of certain forms of disease, respecting which questions are asked and answered in the application for insurance, is material or not in estimating the risk is a question of law and not of fact. Campbell v. New England Mut. Life Ins. Co. 229. INDEX. 785 Misrepresentation. Payment. MISREPRESENTATION. See Warranty and Representation. MISTAKE. See Rbinsitrance. MUTUAL COMPANIES. Constrtjction of policy of mtjttjal company. — In a policy of insur- ance, the fact that it was made by a mutual company with one of its members upon his life gives to words used for a definite purpose and applied to trans- actions of a clearly defined character, such as a provision that the policy shall be void if the insured shall die in known violation of any law, no sig- nificance difierent from what would be their fair construction in a similar contract between any parties. Cluff-v. Mutual Ben. Life Ins. Co. 265. NAME. Presumption. — The mere name of a company, as the " Pacific Mutual Life Insurance Company of California," raises no presumption that it is a com- pany incorpo^ted under the laws of this state. Briggs v. McCullough, 1. NEGLIGENCE. See Accident, 4, 5. NOTICE. See Death. OCCUPATION. See Accident, 6 ; Hazard, 2. OTHER INSURANCES. Will not vitiate. — The fact that the assured had provided other heavy insurances on his life since the one in suit, will not vitiate the contract, there being no i-estrictions upon this subject in the policy. Mmpry v. Home Ins, Co. 698. PAYMENT. See Premium. Payment by agent. — An agreement by the agent to become personally responsible to the company for the payment of the premium, made in good 5C 786 INDEX. Permit. Practice and Pleading. faith, whereby the insured should be the debtor of the agent, amounts to a payment as between the insured and the insurer. Bouton v. American Mutwd Life Ins. Co. 51. See Hodsdon v. Guardian Life Ins. Co. 218. PERMIT. See LicEKSE. PHYSICIAN, EXAMINING. 1. Questions propounded by medical examiner as to pecuniary CIRCUMSTANCES. — The province of the medical examiner is restricted to the duty of ascertaining the sanitary condition of the applicant for insurance; and a question put to him, whether he would not have recommended the re- jection of an application, if the pecuniary circumstances of the applicant had been truly represented to him, was properly rejected as inadmissible ; though it be true that such question addressed to the company's agent would have been admissible. Valton v. National Loan Fund Assurance Society,' 440. Reversed, 451. See note, p. 452. 2. Attending physician. — A physician who had not been in practice for several years, but who, in the case in question, attended the wounded man (the insured) as a friend, and administered remedies, without compensation, is not necessarily an attending physician. Gibson v. American Mut. Life Ins. Co. 590. POLICY. 1. When it takes effect. — Kentucky Mutual Life Ins. Co. v. Jenks, 101. 2. Endowment. — Briggs v. McCullough, 1. PRACTICE AND PLEADING. See Insurable Interest, 11 ; Materiality. 1. Affirmative of issue. — In an action upon a life policy by the appellee, in which the ground of defence was false representations of the habits of the insured at the date of the policy, and death from intemperance, the appellant held the affirmative of the issue. New York Life Ins. Co. v. Graham, 114. 2. Instructions as to the habits of the assured which were preju- dicial to the appellee cannot be taken advantage of by the appellant. Ibid. 5. Seal. — The printed impression of a seal is not a seal ; and assumpsit is proper upon a policy under such impression. Mitchell v. Union Ins. Co. 137. 4. Insurable interest. — The objection of a want of interest cannot be re- lied upon unless expressly made in the pleadings. Forbes v. American Mut. Life Ins. Co. 191. 6. Conditions subsequent in a policy of life assurance need not be set out by the plaintiff in his declaration. lUd. 6. Trust. — The trustee of a life insurance policy may recover in his own name, for the cestui que trust, the whole sum to which the latter is entitled, without joining the beneficiary. St. John v. American Mutual Life Ins. Co. 359. INDEX. 787 Freliminaiy Proofs. Premium. PRELIMINARY PROOFS. See Death j Health, 6. Law and fact. — The sufficiency of preliminary proofs, and what amounts to waiver, are questions of law ; but whether such proofs were fiirnished to the office and whether the acts were done which constitute a waiver, are ques- tions of fact. Miller v. Eagle Life §• Health Ins. Co. 375. PREMIUM. See Evidence, 10 ; Injunction ; Payment. 1. Prospectus vabting terms op policy. — A insured the life of B in a policy conditioned to be void in case the said A should not pay the annual premiums on or before the 10th of April in each year. In a prospectus of the company delivered by the agent, it was stated that any one neglecting to pay his premium for thirty days after the same became due, forfeited the in- surance. The policy contained no reference to this prospectus. On the 14t' of April, four days after an annual premium became due, B died, and soon after, within the thirty days, A tendered the premium to the company who refused to receive it. Held, that the prospectus, if admissible, could not be construed to extend the time of payment of the premium beyond the death of the assured, though tendered within the thirty days, and the plaintiff could not recover. Muttuil Life Ins. Co. v. Ruse, and note, 83. See infra, 2. 2. Prospectus varying terms of policy. Forfeiture. — The policy in question in this case stipulated that the premium should be paid annually on the 1 0th of April ; otherwise it should be void. A prospectus was read in evidence, which had been handed to the assured by the company's agent, which stated that the policy would be void if the annual premium was not paid within thirty days from the time when it became due. The second year's premium was not paid on the 10th of April. The insured died on or about the 1 3th of that month, and soon after his death the plaintiff tendered ■the premium, which was refused. Held, that the company were estopped by the prospectus from insisting upon a forfeiture. Ruse v. Mutual Benefit Life Ins. Co. 467. Reversed on appeal, 472 ; and finally left in doubt, 481. See supra, 1. 8. Premium note overdue. — A policy conditioned to be void on failure to pay " any notes or other obligations given for premium," purported to be issued in consideration of a certain sum " in hand paid" and of annual pre- miums for a like amount. Of the said sum only a part was paid in cash, and for the balance a note was given. The note set forth on its face that, if not paid when due, the policy should be void in accordance with the conditions of the policy. Held, that the policy was forfeited by failure to pay this note when due, and that the amount of this note must be deducted from the net value of the policy in determining the premium of temporary insurance un- der the St. of 1861, c. 186. Pitt v. Berkshire Life Ins. Co. 284. 4. Instalment due on note. — A policy terminable by failure " to pay when T88 INDEX. Frecaiumv due any notes or other obligations given for premium," is determined by fail- ure to pay an instalment due on a premium note. IKd. . Premium note. Action On, after lapse of policy. — The charter of a life insurance company provided that all who insured with the company should be deemed members while they continued so insured ; also that the Company might take the notes of the members, either in whole or part pay- ment of premium ; also that if losses were sustained by the company in excess of the funds on hand, the directors might assess the deficiency ratably upon such members, the assessment not to exceed the sum due on the notes, of which sixty days' notice was to be given ; and if the amount assessed was not paid within that time, the party in default was to cease to be a member of the company, and forfeit all preceding payments. It was also provided that if the premium in any case should exceed $5'0, one fourth of the amount should be paid in cash, and the balance might be paid by a secured note, subject to assessment. J. effected insurance with the company, paid one quarter of the first year's premium in cash, and gave his note for the balance. At the expiration of the first year he paid one quarter in cash towards the second year's premium, and gave his note for three quarters of the total pre- mium for the first and second years, and took up his former note. The in- sured at the end of the sepond year gave up his policy, withdrew from the company, and ceased to be a member thereof. In an action on the last note, after the policy had lapsed, lield, that in the absence of proof of any assess- ments to make up deficiencies as provided in the charter, the company were not entitled to recover ; the note being regarded as a mere security for the payment of losses, upon assessments made for that purpose. Held, also, that parol evidence was admissible to show that the note, though absolute on its face, was given in connection with the charter, and was subject to the inci- dents annexed thereto. Mutual Benefit Life Ins. Co. v. Jarvis, 5. 1. Temporary policy. — A gave B a receipt for a certain sum of money as premium for one year's insurance on his (A's) life. The receipt specified that if the risk was accepted a, policy should be issued within thirty days by the home office; "but if rejected this temporary policy shall become void on receipt of such rejection at this office, when a pro rata amount of the premium received shall be returned." After the death of the insured, which occurred several months subsequent to this transaction, the company, not having issued a policy, directed B to return the sum paid, except a pro rata amount, stating that the application was declined. Held, that the temporary policy did not terminate at the end of the thirty days, and the company were liable. Ken- nedy T. New York Life Ins. Co. 123. '. Parol evidence. Waiver. ^ — In an action upon a life policy, the follow- ing stipulation appeared upon the application, but which was not part of the policy, signed by the party claimed to have been insured : " And I do further agree that the assurance hereby proposed shall not be binding on said com- pany, until the amount of premium as stated therein shall be received by said company, or an accredited agent." Evidence was also offered and re- ceived that the company's agent solicited the insurance of the applicant, and that he declined on the ground that he had not the means ; that the agent then agreed to provide for the cash portion of the premium himself, and INDEX. 789 Freminiu. stated that the applicant might at some convenient time thereafter make his note payable to the company for half the first premium, and pay the other half to himself, the agent. Relying upon this, and induced thereby, he ac- cepted the offer, and made application. The agent then agreed that if the appUcatiou should be accepted the insurance should take immediate effect, as if the premium had in fact been paid by the applicant. The application was accepted, and a policy issued and sent to the agent, and by him counter- signed as required, but retained by him, and upon the death of the insured, within the period of insurance, returned to the company. Held, that this evidence was properly admitted as showing the manner of payment of pre- mium agreed upon, the policy not providing for any particular mode. .Held, also, that this might be considered as a waiver of the stipulation, whereby it was declared that the insurance should not be binding until the premium should be received by the company or their agent. Sheldon v. Connecticut Mutual Life Ins. Co. 27. 8. Waiver. — If an agent of an insurance company receives payment, when overdue, of a premium note given to his principals by the assured upon a policy of insurance issued by them, and made and accepted on condition that it should cease and determine upon failure by the assured to pay the note when due ; and accounts for such payment to his principals ; and they re- ceive it without inquiry ; they waive thereby the right to avail themselves of the delay of payment in order to avoid the policy, although the agent had no authority to waive forfeiture. Hodsdon v. Guardian Life Ins. Co. 218. 9. Waivee. — The court below instructed the jury that the question whether there was a waiver of the right of the company to insist upon the giving of the premium note before the policy should go into effect, depended upon the same principles of law and fact as the question respecting the immediate payment of the money. Held, that this was correct. Sheldon v. Connecticut Mutual Life Ins. Co. 27. 10. Waivee. — A condition in a life policy that the sanle shall cease and de- termine provided the annual premium shall not be paid in advance, may be waived by the reception after that time of the premium by the company or their authorized agent. Bouton v. American Mutual Life Ins. Co. 51. U. Receipt of peemium oveeduk. Waiver. — In an action upon a life policy it appeared that the insured sent his note and a draft for the payment of premium past due. The office collected the draft, and the secretary of the company wrote the assured acknowledging receipt of the note and draft, and further said : " As this is past due, it will accord with our rules for you to send us a certificate of good health, and in your case we will be satisfied with your own. You did not instruct me where to send the renewal receipt, and so I have not inclosed it." The assured died without having sent any cer- tificate of good health. Held, that it is not clear that the deceased did or could understand from this letter that his money was received only on condi- tion of his furnishing a certificate of good health, and that the plaintiff should not have been nonsuited on this evidence. Rockwell v. Mutual Life Ins. Co. 725. 12. Payment op premium. Waiver of roEPEiTURE. — The life policy in question provided that in case the premium was not paid on the d»,y 790 INDEX. Premium. specified, it should be void ; but in such case it might be renewed on satis- factory proof of the health of the insured ; a reexamination being required when thirty days should have thus expired. It was proved that the company had been very lax on this subject ; never requiring the premium to be paid promptly when due, and in one instance allowing it to run by for more than a month. The last premium, which was due on the 10th of December, was paid on the 16th, and duly receipted. The insured died the following month from a disease from which he had been silffering nine weeks. Held, that the company had, by their previous conduct, and by accepting and receipting for the premium on the 16th of January, waived their right of forfeiture. Buckbee v. United States Ins. Co. 406. 13. Payment of premium. Waiver. — Knowledge on the part of the com- pany of the non-payment of a premium note when due is a notice of the breach of the contract of insurance ; and any extension of the time thereafter is a waiver of the forfeiture. Baker v. Union Life Ins. Co. 595. 14. Acknowledgment of rf.oeipt of premium in a policy of life insur- ance cannot be controverted. Provident Life Ins. Co. v. Fennell, and note, 99. 15. Premium to be paid in labor. — Where a policy of life insurance was issued stipulating that the first year's premium was to be paid in advertising in the newspaper published by the insured, and the advertising matter was furnished by the company and duly advertised, held, that it was incumbent upon the company to furnish sufficient amount to meet the premium, and the insured was not responsible for, and the insurance not vitiated by, a de- ficiency in advertising matter. Held, also, that in the absence of any notice from the company to the insured that the policy would not take effect until the termination of the time of advertising, it took effect from its date. Ken- tucky Mutual Life Ins. Co. v. Jenks, 101. 16. Recovery op premium paid. — An agent of a life insurance company received the application of a person for insurance therein on his life in a cer- tain sum, and a draft accepted by him for the amount of the premium on such a policy ; negotiated the draft ; obtained from the company, and deliv- ered to the insured, the policy in the usual form of policies of life insurance, containing a condition that it should be void if the insured should be engaged in running a steam-engine ; and then forwarded to the company the proceeds of the draft. But by the general instructions of the company to its agents he had no authority to receive the premium thus, nor until the issue of the pol- icy, nor without giving the company's receipt therefor, signed by its presi- dent ; which receipt he received from the company with the policy, but never delivered to the insured. Before the agent forwarded to the company the proceeds of the draft, the insured, who sometimes was engaged in running a steam-engine, but did not disclose the fact in applying for the policy, objected to that condition in the policy ; and the agent promised to make it " all right." Afterwards the agent procured some modification of the condition ; but the insured was not satisfied, and returned the policy to the agent, and demanded a return of his draft, which was refused. Held, that, after paying the draft at its maturity to the person to whom the agent negotiated it, the insured could not recover from the agent the amount of such payment. INDEX. 791 Premium. Held, also, that if an agent of a foreign insurance company makes an insur- ance in this commonwealth without complying with the provisions of the Gen. Sts. c. 58, the insured cannot by reason of such non-compliance recover the amount of the premium which he paid for the policy. Leonard v. Wash ■ burn, 281. 17. Payment of premium note. — A policy of life insurance, expressed to be made in consideration of a premium already paid and of future annual payments ; providing that, in case any premium due on the policy should not be paid when due, the policy should be forfeited ; declaring that the policy, and any sums that should become due thereon from the insurers, 'were pledged to them, to secure the payment of any premium on which credit should have been given, or any note or security therefor, such pledge in no respect to afiect the provisions respecting forfeiture ; and further declaring that the policy should not take effect until the premium was paid ; such a policy was made and delivered to the assured by the insurers, who took from him for the first premium a certain sum in cash, and his two promissory notes, one payable in six months, the other in five years. This latter note contained a provision that the policy should be subject to forfeiture in case of non-payment of interest and principal of this note, in compliance with the terms thereof. When the first note, which contained no such provision, be- came due it was not paid. Held, that the policy had taken effect ; that the clause as to forfeiture for non-payment of premiums referred to premiums subsequent to the first ; and the policy was not avoided by failure to pay the note. McAllister v. New Enyland Mutual Life Ins. Co. 293. 18. Non-payment of premium when due. — In an action upon a life policy conditioned to be void in case of the non-payment of premium when due, it appeared that the premium had not been duly paid in two instances. The plaintiff then proved that she had subsequently paid the amount due to one of the company's clerks, and had received from him a receipt for the same, signed by himself for the secretary. It also appeared that though the clerk had been sometimes employed by the company to collect premiums, this was no part of his duties ; and though he had acted as agent for the company, he had in fact no authority to receive premiums upon policies which had been forfeited ; nor had he any authority to sign the secretary's name to the receipts. The company never received the money paid by the plaintiff to the clerk, though knowledge of the transaction was brought to their cashier. Held, that the company were not liable. Koelges v. Guardian Life Ins. Co. 621. 19. By-laws and charter. — The company may introduce copies of their by-laws and charter in evidence, to show the powers of their agents and em- ployees in respect to the receipt of premiums. Ibid. 20. Payment of premium. — In an action against a life insurance company whose charter and by-laws required the payment of annual premiums, but whose policy contained no condition of forfeiture in case of non-payment of said premiums, held, that the insurance was not forfeited by a failure to pay the annual instalment. Woodfn v. Asheville Mut. Ins. Co. 626. 21. Payment of premium. — In a contract of life insurance the prompt pay- ment of the premium is of the substance of the agreement, and this principle 792 INDEX. Preminm. applies as well to the case of a premium for which a credit has been given as to any other. Robert v. New England Mul. Life Ins. Co. 634. 22. Premium note. — A policy of life insurance, conditioned to be void in case the premium should not be paid on or before the time therein mentioned, was issued on the payment of half the premium in cash, and the giving of a note for the balance. The note was not paid at maturity, and the insured died shortly after it became due. The testimony was conflicting as tc whether the insured was notified of th§ maturity of the note ; but payment of the same was oflFered after the death of the assured and refused. Seld, that the company were not bound to give notice to the insured respecting the maturity of his note, and that by the failure to pay the same when due the policy terminated. Held, also, that this was not a forfeiture which could be relieved against. Ibid. 23. Premium note. Agent's authority. — A receipt for the payment of premium, signed by the officers of an insurance company and delivered by liheir agent, is presumptive evidence of payment, though a note was in fact given, and is a recognition of the note as payment. The agent has presump- tive authority to take such note ; and any limitation upon his authority must be brought home to the knowledge of the plaintiff. Mowry v. Home Ins. Co. 698. 24. Payment op premium overdue. — K the premium be not paid until after it is due, it is the duty of the plaintiff to show that the'assured was then in good health. Ibid. 25. Payment op premium. Tender. — In an action upon a life policy which provided that it might be " renewed annually for life, if on the 15tb of July in each year the premium was paid," it was in evidence that the deceased died on the 16th of July, without having paid the premium, and that the same- was tendered to the office and refused several days after. Held, that the insurance expired on the 15th of July, and that the subsequent tender was unavailing. Held, also, that the fact that the deceased was stricken with apoplexy on the day upon which the premium became due, and that he died on the following day, did not alter the case ; and that he could not be con- sidered as dead pn the 15th. HoweU v. Knickerbocker Life Ins. Co. 578. 26. Parol evidence cannot be received to vary the terms of a life policy as to the time when the premium is to be paid. IIM. 27. Annual premiums. When due. Agency. The policy in question was dated May 29th, and stated, on the margin, that it expired on the 28th of May following. The general agents of the company notified the assured that the annual premium in question would be due on the 29th of May. Held, that this was to be considered as the time when the premium was pay- able; and that the general agents had authority to give the said notice. Campbell v. International Life Assurance Society, 522. 28. Burden op Proop. — Hodsdon v. Gvardian Life Ins. Co. 218. 29. Agent's authority. — Where a life policy is conditioned to be void in case the premium is not paid on the day when it becomes due, and the agent by a writing made part of the policy, is declared not to be authorized to waive a forfeiture for failure in this respect ; Tield, that a tender twenty-seven days after the sum became due wotdd not avail the assured, though the agent had INDEX. 793 Reinsurance. Seal. several tunes allowed his premiums to run beyond the time of payment, and had given him encouragement verbally that it mattered not that the premium was not paid on the very day when it became due. Catoir v. American Life Ins. Co. 336. 30. Abandonment. — The holder of a policy of life insurance refused to pay a premium note when due, and declared that " he would not have anything more to do with the insurers and abandoned the whole thing ; " but he retained the policy, and the insurers retained the note ; nor did it appear that they assented to the abandonment. Held, that the policy remained in force. McAllister v. New England Mutual Life Ins. Co. 293. REINSURANCE. Mutual mistake. Subject deceased. — A insured the life of B on the 24th of February, 1851, with the privilege of insurance for another year. On the 31st of May, 1851, the insurer, A, obtained an insurance of the said risk from C, for the term of one year ; but the time when the year was to begin or end was not stated. B, the insured, had died in a distant state several weeks before the second insurance was effected, but his death was unknown at the time to both parties. Held, that the reinsurance must be considered as taking effect on the 24th of February, and not on the 31st of May. Phil- adelphia Life Ins. Co. v. American Life Ins. Co. 662. RENEWAL POLICY. See Health, 4. RESIDENCE, RESTRICTIONS AS TO. See License. RESISTANCE TO LAWFUL AUTHORITY. Death in armed resistance to lawful authority. Construction. — In an action upon a policy of insurance on the life of a slave conditioned to be void " in case the said slave shall die by means of any invasion, insurrec- tion, riot, or civil commotion, or of any military or usurped authority, or by the hands of justice," it was proved that the slave met his death in the armed resistance of a lawful patrol. Held, that the condition of the policy was not broken. Spruill v. North Carolina Mut. Life Ins. Co. 624. RESTRICTIONS AS TO RESIDENCE. See License. SEAL. See Practice, 3. 794 INDEX. Securities. Suicide. SECURITIES. Location or keal estate. — Under the law relating to insurance the note and bonds required to be deposited with the superintendent must be secured on unincumbered real estate situated within the limits of Missouri. State v. King, 318. SUICIDE. 1. Death bt his own hand. — A policy conditioned to be void in case the assured die by his own hand is not avoided by self-destruction in a fit of in- sanity. Eastabrook v. Union Mutual Life Ins. Co. 139. Breasted v. Farmers' Loan Sf Trust Co. 341, 343. But see Dean v. American Mutual Life Ins. Co. 195. Nimick v. Muttial Benefit Life Ins. Co. 689. Cooper v. Massachusetts Mutual Life Ins. Co. 758. See St. Louis Mutual Life Ins. Co. v. Graves, 736. 2. Death bt his own hand. — In a poUcy conditioned to be void if the " assured die by his own hand," this expression includes self-destruction by taking arsenic. And suicide in itself, regardless of any conditions, is such fraud as to avoid the life policy. Hartman v. Keystone Ins. Co., and note, 649. 3. " If he shall die by his own hands this policy shall be void." — The assured killed himself. The policy was for the benefit of his wife, and contained the above stipulation. To recover on the policy the widow of the assured brought this action, and averred " that the fatal shot was the involun- tary offspring of a momentary paroxysm of moral insanity which subjected his wiU, and impelled the homicide beyond the power of self-control or suc- cessful resistance." St. Louis Mutual Life Ins. Co. v. Graves, 736. 4. Was killing himself in this case an act of moral insanity, and IF so, did srcH killing avoid the policy? — See the opinions for a discussion of these questions, in which the court is equally divided. The court, however, unanimously concurred in the following : To avoid the policy the act of self-destruction must have been voluntary. Evidence of a current rumor to show the probable motive of an act subsequently done, as the killing of himself in this case, is not admissible unless it is shown that the rumor had been communicated to the party before he committed the act. The opinion of unprofessional witnesses as to whether a person under a given state of facts and circumstances, if sane, would have taken his own life, is not competent evidence. The following instruction was erroneously given in this case, to wit : " That al- though the jury may be satisfied that Leslie C. Graves, whose life was insured by the defendant, committed suicide, and that when he did the act his intel- lect was unimpaired, and that he knew it was forbidden both by moral and human law, yet if they believe, from the evidence, that at the instant of the commission of the act his will was subordinated by an uncontrollable passion or emotion, causing him to do the act, it was an act of moral insanity." Ibid. 6. Atheism. Pkesumption from. — In determining the question whether the death of the assured was accidental or a case of intentional self-destruc- INDEX. 795 Sunday. Usniy. tion, ihe fact that he was an atheist or an infidel affords no presumption that he committed suicide. Gibson v. American Mutual Life Ins. Co. 590. SUNDAY. Time of patment. — Quarterly premium upon a life policy became due on Sunday. The insured died on that day, without having paid such premium; but the same was tendered and refused on Monday morning following. Held, that the company were liable. Hammond v. American Mutual Life Ins. Co. 181, 185. Campbell v. International Life Assurance Society, 522. TAXATION. 1. Guaranty stock unredeemed. — Under the provisions of the St. of 1864, c. 208, and the St. of 1866, c. 283, imposing an excise on the fran- chises of corporations having a capital stock divided into shares, a mutual life insurance company cannot be taxed on its unredeemed guarantee stock. Commonwealth v. Berkshire Life Ins. Co. 224. 2. Foreign companies. — By the repeal of the act of 1851, c. 95, which re- quired the deposit of $100,000 with the comptroller by foreign insurance com- panies, any foreign company may withdraw the securities which they have deposited ; and though this be not done such deposits are not subject to tax- ation as capital invested in business. People v. New England Mutual Life Itis. Co. 573. TIME OF PAYMENT. See Premium ; Sunday. TORT. Action against wrong-doer for causing loss. — The insured lost his life by an accident on the defendant's railroad, whereby the plaintiffs had to pay the insurance money. Held, that an action was not maintainable by the insurers, in their own name, against the railroad company to recover the in- surance paid. Connecticut Mutual Life Ins. Co. v. New York Sf New Haven Railroad Co., and note, 41. USURY. Recovery of excess. — A applied to B for a loan of money, offering to give his note for double the amount desired, and also to procure insurance upon his life as security in double the sum loaned, under an agreement that B should advance the money necessary to procure the policy, which was to be included in the note and to be repaid by A, who was also to pay all future premiums. The offer was accepted as made, the money paid to A, and the insurance effected. A died within a year aiterwards, and B received the in- surance money in full. In an action by the administrator of A to recover the excess above the actual sum loaned, expenses of effecting insurance, and inter- est, held, that the note was usurious, and that the administrator was entitled 796 INDEX. Violation of Law, Death in. to such excess. Held, also, that B could not interpose the objection that the company were not bound to pay to him anything more than his actual claim against A, and that therefore the administrator could not recover the excess. Coon V. Swan, 717. VIOLATION OP LAW, DEATH IN. See EviDENCK, 9. ♦ 1. What the company MrsT prove. — If a policy of life insurance con- tains a clause providing that the policy shall be void in case the insured shall die in the known violation of any law of the states, or of the United States, or of any country which he may be permitted under the policy to visit or re- side in, the company must prove, in order to avoid the policy on this ground, that he died while engaged in a voluntary criminal act, known by him at the time to be a crime against the laws of such state or country. But those acts which are criminal by the common law and the laws of all civilized countries will be presumed to be criminal by the laws of the states of this Union, and he will also be presumed to have known that they are so. Cluffv. Mutual Benefit Life Ins. Co. 208. 2. CoNTDsruATiON OF AFFEAY. EVIDENCE. — If, in an action upon such pol- icy, there is evidence tending to show that the insured was killed by being shot while engaged in the commission of a robbery and assault and battery, and it is in dispute whether, if he had been so engaged, he had desisted therefrom,' it must appear, in order to exonerate the company from liability, that such criminal act was not so far completed as to render the shooting a new and distinct event, rather than a mere continuation of the original affray, and that the death was in consequence of the crime of the insured; but it need not be proved that the insured knew or had reason to believe that his crimi- nal act would or might expose his life to danger. Ibid. S. SELF-KEDKES8. — On the trial of an action on a policy of insurance upon the life of the insured, made on condition that it should be void if he should die in the known violation of any law, evidence was introduced tending to show that he was killed while doing what would constitute either robbery or larceny unless he acted under a belief which would avoid the otherwise criminal character of his acts. Held, that instructions to the jury were erroneous which permitted them to understand that such a belief need not be a belief in his legal right to do the acts, but might be a belief in a right of self-redress by reason of the disturbed condition of the country, the inef- ficient administration of the laws, or otherwise. Held, also, on a new trial upon the same evidence, that the fact that the judge did not comply with a request to instruct the jury that the insured must be presumed to have known the civil law of the state where he was killed was not a valid ground of exception, if he did instruct them that the insured had no right to do the acts in the commission of which he was killed, and that he must be presumed to have known the criminal law of the state. Ibid. 265. ' 4. Policy vitiated if slayer excusable. — In an action upon a life insur- ance policy conditioned to be void if the assured die in the known violation of law. Held, that to have that effect the death must have been under circum- INDEX. 797 Warranty and Bepreseutation. stances wliich would have made the slayer excusable. Harper v. Phcenix Ins. Co. 300. 5. Law and fact. — What constitutes a killing in self-defence is matter of law. Ibid. 6. NosciTUE a sociis. Affray. — In an action upon a life insurance policy conditioned to be void if the assured " shall die in consequence of a duel, or by the hands of justice, or in the known violation of any law of this state," Held, that upon the maxim noscitur a sociis, the last clause of the condition must be construed to extend only to instances in which the party died in the consummation of a felony; and that the fact that the assured, at the time of the killing, had abandoned the conflict, retreated as far as possible, and endeavored to screen himself, though holding a stick at the time he was slain, precluded the idea of a felony on the part of the assured. Ibid, 301. 7. Self-defence. — In an action upon a life policy conditioned to be void in case the assured die in the known violation of law. Held, that if the insured came to his death from a pistol shot in a rencontre between him and W., in which rencontre pistols were fired by both parties, and the insured fired his pistol in lawftj defence of his person, when there was reasonable cause for him to apprehend a design on the part of said W. to do him a great personal injury, and also to apprehend immediate danger of such design being accomplished, then the insured did not come to his death in the known violation of law. Overton v. St. Louis Mutual Life Ins. Co. 313. WARRANTY AND REPRESENTATION. See Concealment. 1. Warranty. Misrepresentation. — A life policy contained the pro- vision that the statements made therein were in all respects true, and without the suppression of any fact relating to the health of the insured. Held, that tie statements were thus made warranties ; but that even if not warranties such statements were material to the risk, and if untrue would avoid the pol- icy. Kelsey v. Universal Life Ins. Co. 76. 2. Warranty. — A life policy declared that it was expressly " agreed to be the true intent and meaning hereof that if the proposal, answer, and declara- tion made by " the plaintiffs, " and upon the faith of which this agreement is made, shall be found in any respect untrue," the policy should be void. The proposal was made part of the policy, and contained a provision as to the statements made in it similar to the foregoing. Held, that the statements were thus mad« warranties ; and if untrue even in an immaterial point the policy was void. Miles v. Connecticut Mutual Life Ins. Co. 173. 3. Burden of proof. — The burden of proviog untrue a representation upon which a policy of life insurance was based is upon the insurers. Campbell v. New England Mutual Life Ins. Co. 229. 4. Warranty. Representation. — A policy of life insurance was declared on its face to be "upon the following condition," that "if the statements made by, or on behalf ofj or with the knowledge o^" the assured, to the insurers, " as the basis oi', or in the negotiations for this contract, shall be found in any respect untrue, then this policy shall be null and void;" and was issued upon an application in writing, signed by the assured, declaring that he made the 798 INDEX. Warranty and Eepresentation. statements therein " as the basis of such insurance," and that they were " iuU, fair, and true answers to the questions proposed," and further declaring that he had carefully read the questions and answers, and was aware that any fraudulent or untrue answers, or concealment of fact, or non-compliance with the terms of the policy, would vitiate the insurance. To a question whether he was or had been " subject to or at all affected by any of the following dis- eases and infirmities," among which were enumerated " bronchitis, consump- tion, coughs prolonged," and " spitting of blood," he answered, No. Held, that this answer was not a warranty, but a representation, which need not be true to the very letter, but must be substantially, in all respects material to be disclosed to the insurers to enable them to estimate the risk to be as- sumed ; that, if materially untrue in such respects, it avoided the policy, even if made ignorantly and in good faith ; and that, by the form of the policy and application, it was conclusively made material. Held, also, that a refusal to instruct the jury in an action on the policy, " that a spitting of blood accom- panied by a cough was so far an indication of a diseased condition of the respiratory organs that, if the applicant had suffered from them, he was bound to have so stated to the insurers ; " accompanied by an instruction " that repeated instances of spitting of blood of the kind testified to by the defendants' witnesses would be indications of a disease which the assured was bound to state ; that it was not necessary that-the defendants should prove the existence of any positive organic disease, or that the spitting of blood was of a character to shorten life ; that the inquiries were not only as to diseases, but as to infirmities, and certain specified symptoms of disease ; and that the defendants were entitled to have them answered fairly and truly ; " afforded to the defendants no ground of exception. Tbid. 5. Fraudulent keprbsentations made by the assured to the insurer upon the latter's application for a policy, though not material to the risk, yet ma- terial in the judgment of the insurer, and which induced him to take the risk, will avoid the policy. Valton v. National Loan Fund Assurance Society, 436. Reversing S. C. 409. 5. Misrepresentation. Warranty. Agency. — W. insured the life of F. for his (W.'s) benefit. ^. signed a declaration, not made part of the policy, that he had not been afflicted with certain diseases tending to shorten life ; and W., the defendant, signed a declaration, which was made part of the policy, that F. had not been afflicted with any of the diseases referred to, to his knowledge. Held, that what would otherwise have been a warranty, was in this case so qualified by the expression to his knowledge, that in an action by the company against W. to recover the insurance, paid to him in ignorance that the statements respecting F.'s health were false, they could not recover if F. (who is to be considered as the agent of W.) had none of the diseases mentioned, or if he had either of them, and W. was ignorant of the fact ; and the burden of proof was upon the company to show knowledge on the part of W. Held, also, that the company, by putting the charge of fraud and misrepresentation against W. on the ground that the knowledge of F. was the knowledge of W., could not recover without proof of fraud on the part of W., in the making of the original contract of insurance ; in other words, that the company could not recover the money paid by them on the INDEX. 799 Warranty and Bepresentation. Will. ground solely that the representations of P. were false, and that they were ignorant of the fact when they paid the money. Mutual Life Ins. Co. v. Wager, 483. 7. Warranty. — Statements of a party to whom the assured and the plaintiff referred, which statements were not received at the office until after the issu- ance of the policy, and the character of which was not known to the insured or the plaintiff, and which were not furnished by them, are not warranties. Rawls V. American Life Ins. Co. 549. Affirmed on appeal, 558. 8. False representations. — If an insurance company rely upon the report of the examining physician, and not upon the statements of the insured, erroneous statements by the latter to the physician, which amount only to opinions, will not avoid the policy. Hogle v. Guardian Life Ins. Co. 597. WILL. See Husband and Wife. Validity. — A policy of life insurance, expressed to be for the benefit of the widow and child of the assured, cannot be affected by his will. Gould v. Emerson, 258. Contra, Kerman v. Howard, 728. See Rison v. Wilkinson, 707 ; N. Y. Life Ins. Co. v. Flack, 146 ; Knickerbocker Life Ins. Co. v. Weitz, 261. Date Due Library Bureai iCat. No. 1137 KF 1173 B59 1871 Author Vol. Bigelow, Melville Madison 1 Title Reports of all the published copy life and accident insurance cases; Date Borrower's Name iin