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Vol. III.]

HARDY V. MERRILL.

[No. 9.

chusetts), in New Hampshire, in Massachusetts, and in Texas (Jehrke v. The State, 13 Texas, 568), and nowhere else in the civilized world.

At the close of the scene which I have described, not a man of the laity goes out of the court-room without being disgusted with this exhibition of the law, as a system of arbitrary rules, that, ignoring all legal ideas, decides upon a distinction purely verbal. And why should not the laymen be disgusted with the senseless subtlety which permits one party to show by his witness that a testator "appeared perfectly natural," and forbids the adverse party to offer the testimony of another witness that "he did n't appear to be in his right mind?"

In the case now before us, the learned judge and his associates, to whom the trial was referred, evidently and inevitably experienced great embarrassment and confusion of mind in their effort to conform to the supposed rule. The futility of their endeavors is notably apparent.

Mr. McAlpine was permitted to say of the testator, "He seemed to be all broken down in body," but was forbidden to say, "He seemed to be all broken down in mind;" and yet, the same witness (without specification of mental or bodily infirmity) was permitted to say that, between certain dates," He had changed very much;" "His mind was such that he could not give any intelligent answer; "" He did n't seem to have any memory; " "I discovered that he had failed;" "His conversation was childish."

The following questions were ruled out:

First. "Being a brother of Joseph Hardy, from your observation of his appearance and conduct at the time you saw him at your house, in June, 1869, state whether or not, in your opinion, he was at the time of sound and disposing mind and memory."

Second. "Being a brother of the testator, from what you had observed as to his conversation, conduct, and general deportment as to all subjects, up to the 26th day of July, 1870, have you any opinion as to his sanity at that date, and if so, what is it?"

Mr. Hardy was not allowed to say that the testator "appeared like a failing man in every respect."

Another witness was forbidden to testify that the testator "appeared like a man who didn't seem to know what he was talking about half of the time;" but he was allowed to state that "he appeared very weak in his mind."

Another non-expert was permitted to testify, "He appeared child-like, -appeared feeble in body and mind, more like a child than a rational man; "but another witness was not allowed to state, "It looked to me as though he was failing in his business capacity, or in his mind."

And, finally, another witness, being expressly cautioned and charged to beware of expressing any "opinion," was permitted to say: "I observed nothing whatever, in his conduct or conversation, indicating any impairment of any of his mental faculties."

The Massachusetts rule is, that non-experts' opinion shall be excluded ; but the rule itself does not exclude them. It only excludes the use of certain words. It admits the opinions, and merely embarrasses the witness and confounds the jury by requiring the witness to express his opinion without using certain forbidden terms, and by using others that are

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Vol. III.]

HARDY v. MERRILL.

[No. 9.

understood by the jury and everybody else to be precisely synonymous.
A non-expert, who has been watching by the bedside of a sick man, may
say, "He was delirious all night;" a farmer may say that his neighbor's
boy is so lacking in intelligence as to be "below par;" anybody may say
that a man was 66
crazy drunk;" that a testator did n't seem to under-
stand anything that was said to him-seemed senseless, unnatural, not
as usual; or, that "no change was perceptible in his intelligence," "no
incoherence of thought," nor anything unusual or singular in respect to
"his mental condition;" was healthy or sickly in body; but in giving
his opinions of mental health or disease, the non-expert must not use the
words "sane,"
"insane," "mentally disordered,' or "deranged." So
far as he can find synonymes for these words, circumlocutory but equiva-.
lent, he may express his opinion in them, and welcome; but let him be-
ware of using those cabalistic words, on pain of the displeasure of those
who understand that such terms as "delirious" and "idiotic are not
expressive of an opinion of the presence and operation of mental disease.
Whether "out of his head" is one of the phrases in which a non-
expert may give his opinion, or whether it is one of the forbidden cabala,
a question concerning which information is wanting.

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The selection of the phraseology in which such an opinion may be expressed, and that in which it cannot be uttered, depends on no legal principle, but on the mere whim of the court. Such an arbitrary and senseless choice or rejection of terms in which to express an admissible opinion is mere sheer logomachy, a waste of precious time given us for better purposes, a verbal quibble unworthy of the law, and calculated to bring it into contempt.

It would be superfluous for me to add that I fully concur in the views and opinions expressed by Judge Doe in Boardman v. Woodman and State v. Pike, and that I cordially indorse the remarks of Judge Redfield (11 Am. Law Reg., N. S. 259), as follows: "The learned judge shows very conclusively, both upon authority and reason, that the opinion of the unprofessional witnesses, in such a case, is commonly far more reliable as a basis of ultimate decision, in questions of sanity and mental capacity, than any specific facts which could possibly be gathered from the witnesses. We have said in our book on Wills, and in other places, all that we could desire to say, both as to the rationale of the rule and the support which it receives from authority. The tendency of the American courts in the last few years has been largely in the direction contended for by the learned judge; and there seems to be little question that it must ultimately prevail all but universally. We should rejoice at such a result, as greatly tending towards the establishment of truth with greater facility and certainty in a very important class of cases." 1 Redf. on Wills (4th ed. A. D. 1876), 138-145, where many other cases than those herein before alluded to are cited and commented upon.

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Thus supported upon principle and authority, I am satisfied that the time has arrived when this court is called upon to declare the law to be in conformity with the views I have expressed.

LADD, J. I think it is shown by proofs which fall little, if at all, short of demonstration, that the doctrine excluding the opinions of non-experts on the question of insanity has grown up in this state within the memory

Vol. III.]

ANGLE v. NORTHWESTERN MUTUAL LIFE INSURANCE Co.

[No. 9

of men now living in the profession; that it had no place in the common law brought here from England, nor in the jurisprudence or practice in this state, from the Constitution down to a comparatively recent date; that it is contrary to reason, extremely difficult of application, and inconvenient in practice; that the great weight of judicial opinion and authority outside this state is against it; and that, even if we look at the condition of authority as shown by the expression of judicial opinion and practice in this state, the balance cannot fairly be said to be in favor of the rule. No titles are to be disturbed by adopting a rule more consonant with reason, and which accords with the almost universal practice in jurisdictions where the common law is used the world over. Î therefore concur fully with my brother Foster in the conclusions at which he has arrived.

CUSHING, C. J., concurred.

Case discharged.

SUPREME COURT OF THE UNITED STATES.

[OCTOBER TERM, 1875.]

NEGOTIABLE INSTRUMENT SIGNED IN BLANK.
IN RESPECT OF SUCH INSTRUMENT.

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AUTHORITY OF HOLDER

ANGLE v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY. Where a party to a negotiable instrument with blanks unfilled intrusts it to the custody of another for use, such negotiable instrument carries on its face an implied authority to fill the blanks necessary to perfect it. The rule is, that as between the holder to whom the instrument is intrusted and innocent third parties, the holder is to be regarded as the agent of the party committing it to his custody for the purpose of filling the blanks. But there is no implied authority that the holder may do anything more than fill the blanks. Any erasure or addition amounts to forgery and renders the instrument void. Nor is actual notice of any alteration necessary if the instrument shows the alteration on its face.

These doctrines are applicable to an order for the delivery of funds signed by the authorized officer of an insurance company and intrusted to a sub-agent.

APPEAL from the circuit court of the United States for the District of Iowa.

Mr. Justice CLIFFORD delivered the opinion of the court.

Persons dealing with an agent are entitled to the same protection as if dealing with the principal, to the extent that the agent acts within the scope of his authority.

Pursuant to that rule it is settled law that where a party to a negotiable instrument intrusts it to another for use as such, with blanks not filled up, such instrument, so delivered, carries on its face an implied authority to complete the same by filling up the blanks; but the authority implied from the existence of the blanks, would not authorize the person intrusted with the instrument to vary or alter the material terms of the instrument

1

Vol. III.]

ANGLE v. Northwestern Mutual Life INSURANCE CO.

[No. 9.

by erasing what is written or printed as part of the same, nor to pervert the scope and meaning of the same by filling the blanks with stipulations repugnant to what was plainly and clearly expressed in the instrument before it was so delivered.

By virtue of the implied authority, such a depositary may perfect, in his discretion, what is incomplete, by filling the blanks, but he may not make a new instrument, by erasing what is written or printed, nor by filling the blanks with stipulations repugnant to the plainly expressed intention of the same, as shown by its written or printed terms. Goodman v. Simonds, 20 How. 361; Bank v. Neal, 22 Ib. 108.

Much reference to the pleadings will be unnecessary, as the questions presented for decision arise chiefly out of the facts deducible from the proofs exhibited in the record. Suffice it to say, in that regard, that the suit was instituted by the complainant to procure a decree that the bond and mortgage, and the two fire insurance policies described in the bill of complaint, were delivered and assigned to the respondents without consideration, and to obtain a decree setting aside said bond and mortgage and for a return of said policies, the same having been delivered to the respondents as additional security for a loan of ten thousand dollars, the proceeds of which never came to the hands of the complainant; and he charges that the proceeds of the loan were never forwarded to him by his authority; that if the insurance company ever paid the same in current funds to the person through whom the loan was negotiated, upon any order signed by him, as pretended by the respondents, the order was forged by the party who presented it or by some person interested, to cheat and defraud the complainant out of the money.

Service was made and the corporation respondents appeared and filed an answer, in which they allege that the bond, mortgage, and fire policies were duly delivered to the company by the agent of the complainant, and they deny that the order for the payment of the proceeds of the loan was forged, and aver that they made the payment to the person who presented it, in good faith. Proofs were taken, and the court, having heard the parties, entered a decree dismissing the bill of complaint, and the complainant appealed to this court.

Sufficient appears to show that the respondents are a corporation created by the laws of Wisconsin, and that they were doing a life insurance business throughout the Northwestern States, and it also appeared that they were accustomed to loan money on real estate securities. Agents were appointed by the respondents in the different states, whose duty it was to solicit applications for policies and to transact other matters connected with their insurance business.

State agents were appointed by the company, but it is conceded that they in turn appointed sub-agents to perform the same duties, and it appears that the commissions for all such services were paid by the company to the state agents.

Applications for loans of money were frequently made to the company through the state agents, and it appears that such agents of the company were furnished with blank forms for such applications and for the appraisement of real estate intended as security for such loans. When an application for a loan was made the blank forms were filled up by the agent,

Vol. III.]

ANGLE v. NORTHWESTERN MUTUAL LIFE INSURANCE CO.

[No. 9.

and it was the business of the borrower to furnish abstracts of the title of the real estate offered as security, all of which were transmitted by the agent to the home office for examination, and if approved, the course of business was that the bond and mortgage were prepared and forwarded to the agent to be delivered to the applicant for execution and

return.

Of course the applicant might still refuse to execute the bond and mortgage, but if he was satisfied with the terms of the instruments, and completed the same, they were given back to the agent and were by him returned to the company, and it seems that the money loaned was usually transmitted to the applicant by means of a draft payable to the order of the borrower, or, in certain cases, the money was paid by the company at the home office, pursuant to the written order of the borrower, evidenced by a receipt on the back of the order by the person in whose favor it was drawn. Such papers from the home office to the borrower and from the borrower to the company, it is conceded, are usually mailed to the state agent, and that they pass through his office; but it is insisted by the respondents that he has no interest in the business, and that he receives no compensation from the company for his services.

Sub-agents, it is conceded, were employed by the agents appointed by the company, and it appears that I. T. Martin, during the winter and spring of 1871, was a regular agent of the company, appointed for the State of Iowa, and that he employed one C. W. Copeland as sub-agent, to solicit applications for life insurance, and that Copeland claimed to be the agent of the company to effect loans in their behalf on security of real estate, and that he represented to the complainant that he, the sub-agent, could procure for the complainant a loan from the company of ten thousand dollars on such security.

Both the complainant and Copeland then resided at Cedar Rapids, and it was at that place, and about that time, that the former was introduced to the latter, and it appears that Copeland was, at that time, canvassing for the company, to procure customers to take policies in the company, and to induce persons to take loans from the company on security of real estate. About the same time Copeland published a card in one or more of the local newspapers, representing that he was the agent of the company, and it appears that he exhibited to the complainant pamphlets, circulars, and other documents of the kind prepared and distributed by the state agents, as the means of extending the business of the company, and that notice was published by the same party, in one or more of the local journals, in which he is described as the agent of the insurance

company.

Evidence entirely satisfactory was introduced, showing that it was during that period that the complainant commenced negotiations with Copeland to obtain for him a loan from the company for the sum of ten thousand dollars, to be secured by bond, and mortgage of real estate. Conversation ensued between them, and the evidence shows that Copeland told the complainant that he was going to quit preaching, and that he had made arrangements to act as attorney for the said insurance company; that he had already secured a loan for one person; and that, being an intimate friend of the general agent, he could get the money whenever he recommended a loan.

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