Page images
PDF
EPUB

year and for the sum of $500, covering two tiff, wherein he was informed of the time his certain horses, particularly describing them. policy would expire, and a request was made

The first paragraph of the complaint, to re that he renew his policy, and he was directed cover for the death of one of the horses, pro- to reach the local agent and “have him take ceeds upon the theory that the same agent care of his interests." On the same day dewho obtained the first policy orally agreed fendant also wrote its local agent Cummins, to reinsure the horses described in the first directing him to use his best endeavors to policy in the same amount for another year, secure a renewal of the policy if he still conand on the same terms and conditions con- sidered the risk desirable. Upon receipt of tained in the original policy, and that such his letter plaintiff called upon the agent Cumold policy would be renewed, but that no new mins, and informed him of his desire to again policy was ever issued, and on the 19th day insure with his company for the same of May, 1913, one of the horses died. The amount, “but that he desired the entire sum second paragraph proceeds upon the theory placed on the one horse Turban." The agent that appellant's agent made an original parol instructed plaintiff to bring him the card, contract of insurance with appellee. Ap- giving the description and number of the pellant answered in two paragraphs, a gener. horse, and that they would arrange to reinal denial and a denial that any policy of in- sure him. Afterwards, and before the expirasurance was issued, or that any. Insurance tion of the old policy, plaintiff provided de was effected through the negotiations between fendant with the requested information, and appellee and appellant's agent, and, if any in thereafter, and in the absence of plaintiff, the surance had been thereby consummated, there agent Cummins prepared an application for was no liability because the horse for which him, which was mailed to defendant at its loss is claimed was sick from 8 o'clock a. m. office in the city of Indianapolis. Plaintiff one day until 3 o'clock a. m. of the next day, then offered to pay the premium to the agent, and no notice of such sickness was given ap- but he was told not to pay it until he repellant, as the terms of the policy required. ceived the policy, and that he could conReplies were filed closing the issues. The sider himself insured. Immediately after the cause was submitted to the court, and by re-expiration of the policy plaintiff again called quest a special finding of facts was returned, on the local agent for his new policy, but was together with conclusions of law thereon. informed that it had not been received from Appellant excepted to each of the conclusions the home office, but agreed and promised that of law, and then filed a motion for a venire he should consider himself insured in the sum de novo, which was overruled. A motion for named in his application on the horse Tur. a new trial was then Aled, which was also ban. While all these matters were happenoverruled and exceptions reserved to each of ing defendant was holding out to the public such rulings. Judgment was rendered for and to appellee that Cummins was its agent; appellee in the sum of $381.72, from which that plaintiff had no knowledge of any limitathis appeal is taken.

tion on his authority. Plaintiff relied on the The facts are fully found by the court, and agreement, believing that Cummins was de are sustained by the evidence. We, there- fendant's agent, and was induced to rely on fore, are not required to give further thought said insurance, and not to take insurance in to the errors assigned, relating to the over- any other company. About 8 o'clock a. m. of ruling of appellant's separate motions for a May 18, 1913, the horse Turban became sick, venire de novo and for a new trial. We pro- He was then on plaintiff's farm, about one ceed to the further assignment that the court mile from Millville, Henry county, and about erred in its conclusion of law on the facts seven miles from Hagerstown. Plaintiff imfound. These findings show the existence of mediately called a veterinary surgeon at appellant company, that it was organized to Hagerstown by telephone, and he came at insure live stock, and that it appointed as its once to attend the horse. Plaintiff was reagent in New Castle and vicinity Nathan quired to telephone through the exchange at Cummins. The appointment was in writing, Millville, and, the 18th day of May being and by its terms the authority of such agent Sunday, the exchange was closed after 9 was limited to soliciting and forwarding ap o'clock of that day. The veterinary remainplications of insurance to appellant for ap-ed with the horse the greater part of that proval or rejection. In compensation for his day and until two o'clock of the next mornservices he was to be paid in commission pro ing, when the horse died. Plaintiff immedivided for in his appointment.

ately notified defendant of the death of the On April 16, 1912, defendant issued to horse, and asked what disposition should be plaintiff a policy of insurance, by the terms made of him, and was told by Cummins to of which defendant, in consideration of the bury him. He had the horse moved, however, sum of $50 as premium, agreed to insure to Hagerstown, where an autopsy disclosed plaintiff against the loss of two horses by that he had died from acute indigestion. death for a period of one year to the amount The horse had never been sick before, was a of $100 on one horse and $400 on another, pedigreed stallion, and was worth $1,000. named “Turban.” Before the expiration of After the death of the horse and within a the policy defendant mailed a letter to plain- reasonable time, on the 22d day of May, plain.

tift wrote a letter to defendant, in which be, and found by the court to infer that appel. narrated all the business transactions had lant had authorized all that its agent did with their agent; that he relied upon the and said to appellee concerning insurance. statement made by the agent that the horse Ruggles V. American Central Ins. Co., 114 was insured; that he had died shortly after | N. Y. 415, 21 N. E. 1000, 11 Am. St. Rep. the new insurance had been placed; that he 674. had notified the agent of his death, and de [4] We are satisfied that the inding of manded the new policy and the amount of facts, considered together, are sufficient on insurance which had been placed on the horse. the question of the authority of Cummins to All of which was refused by the defendant make an oral contract of insurance and of on the ground of nonliability.

appellee's right to rely, and that he did rely Upon the foregoing facts the court stated on such authority when the oral contract of conclusions of law as follows: First, the law insurance contended for was made. But it is with the plaintiff on the finding of facts is appellant's contention that since the origihereinbefore found; second, that the plaintiff nal policy of insurance which appellee had should recover the sum of $381.72, together received from it in 1912 contained limitawith costs.

tions of the agent Cummins' authority, such [1] Parol contracts of insurance have been limitations in that policy would be notice many times held valid and of binding force generally of his limited authority. by both the Supreme and Appellate Courts of It has been held, however, and rightly so, this state. Angell v. Hartford Ins. Co., 59 N. that provisions in policies, limiting powers Y. 171, 17 Am. Rep. 322; Western Assurance of agents, have reference only to the policy Co. v. McAlpin, 23 Ind. App. 220, 55 N. E. itself, and have no application to the pre119, 77 Am. St. Rep. 423; Ohio Farmers' Ins. liminary agreements to insure or to renew Co. v. Bell, 51 Ind. App. 377, 99 N. E. 812. existing insurance. Zell v. Herman, etc., Ins.

[2] The proposition is well settled that an Co., 75 Wis. 521, 44 N. W. 828; Reiner v. insurance company can, by a preliminary Dwelling House Ins. Co., 74 Wis. 89, 42 N. contract, bind itself to issue or renew a pol. W. 208, 210; 1 Wood on Insurance (2d Ed.) icy of insurance in the future. The con- $ 11. trolling question then in this case is, Do the Appellant, although denying that there facts constitute such a contract? Insurance was a contract of insurance at the time the companies contract through their agents, and stallion Turban died, yet contends that it whether he be called a general or special such oral contract of insurance had been agent, if he had apparent power to solicit in consummated, it must be presumed that the surance, collect premiums, deliver policies, parties contemplated such form of policy as and do all things necessary to transact the to conditions as was used by the parties business of his company given to his care, originally, and since such policy provided and no restriction is brought to the knowl- that the company would not be liable if the edge of the person dealing with him, such insured failed to render at once by teleagent, under such circumstances, wilí bind graph notice of any sickness with which the the company by a verbal contract with the horse might become afilicted, there was no assured made at or prior to the expiration tice. In view of the disposition we have

liability because of failure to give such no of an insurance policy covering live stock, made of the last contention we are not rewhich the assured desired to again insure, quired to discuss this proposition. either in whole or in part. Kerlin v. National, etc., Ass'n, 8 Ind. App. 628, 35 N. E.

There was evidence, although contradicted, 39, 36 N. E. 156; Kitchin v. Hartford Ins. ings cover all the issues tried, and they are

supporting the court's finding. These findCo., 57 Mich. 135, 23 N. W. 616; 58 Am. Rep. favorable to appellee, and sustain the con344; Com. Union Ins. Co. v. State, 113 Ind. clusions of law and the decision. 331, 15 N. E. 518.

[5] It appears from the finding of facts in [3] The letter from appellant to appellee this case that appellee should have been givin which he was requested to see its agent, en a judgment for $500, but appellee does and let him take care of his interests, justi- not contend for this, and no point is made fied him in assuming that such agent had in the briefs. Appellant is in no position to full and general authority to act for it. He object. bad a right from this and other facts proven Judgment affirmed.

(225 Mass. 335)

accident, “I saw Mr. Page as he turned from PAGE COMMERCIAL TRAVELERS' State street towards Merchants' Row and DASTERN ACC. ASS'N.

tripped on an irregularity on the sidewalk (Supreme Judicial Court of Massachusetts.

and was thrown, striking on his head;" the Suffolk. Dec. 6, 1916.)

affidavit of a person who knew the deceased,

"that I saw the body of the deceased after INSURANCE Om668(11)-ACCIDENT INSURANCE death, to wit, on the twenty-second day of -CAUSE OF DEATH-QUESTION FOR JUBY.

A benefit insurance policy provided that, in October, 1912, and I knew it to be the body case of death by accident, the association would of the said Joseph H. Page whom I knew pay a certain sum on proof thereof satisfactory and who died as aforesaid;" the affidavit of to the board of directors. The death certificate the undertaker, who stated in answer to the of insured stated that the cause of his death was coronary sclerosis and chronic arterio-sclerosis. question, "What was the cause of death?" The evidence showed that insured fell on the copied from medical examiner's death cerstreet and died within a few minutes. Held, tificate, “Coronary sclerosis, chr, arterio-sclethat the undisputed statement of facts in the rosis;" and the death certificate, recorded certificate controlled the inferences of the cause of death arising from the fact of a fall, render- October 26, 1912, wherein it is stated that ing it impossible to say as matter of fact that the primary or secondary cause of death was the directors, as reasonable .men, should have decided that 'death was due wholly to accident. coronary sclerosis, chronic arterio-sclerosis. [Ed. Note. For other cases, see Insurance,

November 25, 1912, the board of directors Cent. Dig. 8f 1745, 1763, 1764; Dec. Dig. Ons by letter advised the beneficiary that her 668(11).]

claim was disallowed, “as proofs filed at this Exceptions from Superior Court, Suffolk office on November 6th, 1912, are not satisCounty; Lloyd E. White, Judge.

factory to this board. It appears of said Action by Elizabeth M. Page against the proofs that Mr. Page's death was due to disCommercial Travelers' Eastern Accident As ease, 1. e, coronary sclerosis and chronic arsociation. There was a verdict for plain-terio-sclerosis and not to external violent tiff, and defendant excepts. Exceptions sus and accidental means." tained, and judgment entered for defendant,

The presiding judge at the trial refused under St. 1909, c. 236.

to rule "that the proofs submitted to the R. G. Dodge, A. L. Woodman, and Ray- board of directors of the defendant by the mond S. Wilkins, all of Boston, for plaintiff. plaintiff were not suficient to satisfy said Eaton & Mcknight, of Boston (John A. Daly, directors as reasonable men, that the death of Boston, of counsel), for defendant.

of Joseph Harry Page was caused wholly

and entirely by external, violent and acciPIERCE, J. September 28, 1912, Joseph dental means." To this refusal the defendHarry Page, a man of about 55 years, be- ant duly excepted. came a member of the defendant associa The judge submitted to the jury the question and received a policy. The plaintiff was tion whether the preliminary proof "was the wife of the insured and was named in such as to convince reasonable men acting the policy as the beneficiary in case of

easonably that the death did happen wholly death. The association covenanted and on account of the accident, solely on account agreed "that within sixty days from the re of the accident," and stated that an afirmaceipt by the board of directors of the said tive determination of this issue “is a conassociation of proof satisfactory to said dition precedent to the maintenance of the board of the death of the said member, and action." that his death has been caused wholly and

The defendant did not except to that part entirely by external, violent and accidental of the charge which dealt with the law which means,

which shall leave upon the should govern the jury in determining the body of said member an external and visible sufficiency of the proofs submitted to the mark, the said association

will board if it were proper upon the proofs furpay to wife of the said Joseph Harry Page nished the directors to leave to the jury the

the sum of five thousand dollars." issue whether reasonable men, acting reasonOctober 22, 1912, about noon, the insured ably, should have been satisfied that the was walking up State street, in Boston, to death of the insured was due wholly and enward Washington street, on the right hand tirely to the injuries sustained by the acciside. As he came to the corner of State dent. The evidence of a stumble and fall to street and Merchants' Row he stumbled and the sidewalk, of a blow on the head, of an fell. He died within a few minutes appar- unconscious condition and of almost immeently without recovering consciousness. diate death, would require the conclusion November 5 and 6, 1912, the beneficiary filed that death was due wholly and entirely to with the board of directors her own affidavit, the injuries sustained by the accident, were "that the death of the said member was it not for the certificate of death, that the caused wholly and entirely by external, vio- cause of death was coronary sclerosis, chronlent and accidental means, to wit, by a fall ic arterio-sclerosis. These positive and unto the sidewalk, caused by tripping thereon; disputed statements of fact control the in

the affidavit of a witness to the ferences of the cause of death naturally aris

*

[ocr errors]

ing from the mere fact of fall and of physi-| by a first wife. The defendant Effie A. Davis, cal injury, and make it impossible to say as was a sister of Mrs. Griffin and had taken a matter of fact, that the directors as reason- care of the latter during her last illness, able men acting reasonably ought to have de under an agreement) the terms of which are cided that death was due wholly and entire stated in the opinion. The master who heard ly to the accident.

the case found that Mrs. Griffin drew all of If this conclusion be a seeming hardship the money of the estate amounting to $4,447.to the plaintiff, it results from her failure 47 from banks and a part of this was exto perform the voluntarily assumed condi- pended by her sister for Mrs. Griffin's benetion of the agreement of the insured—that it while living and for expenses incurred by the beneficiary shall furnish sufficient proof reason of her death. The master to whom to the directors to satisfy reasonable men the case was referred found that defendant acting reasonably that death was due wholly Davis should pay to plaintiff $2,471.91 and and entirely to the injuries sustained by the also that plaintiff should recover $400 paid accident. Traiser v. Commercial Travelers' in sums of $100 each to four persons by Mrs. Eastern Accident Ass'n, 202 Mass. 292, 88 Griffin, the consideration being only love or N. E, 901.

affection. The superior court confirmed the The exceptions are sustained and judg- master's report and dismissed the bill with ment must be entered for the defendant un costs, and plaintif appealed. Reversed, and der St. 1909, c. 236.

decree entered. So ordered.

Fredk. H. Tarr, of Gloucester, for appel

lant. J. Manuel Marshall, of Gloucester, and (225 Mass. 331)

Wm. A. Pew, of Salem, for appellees. GRIFFIN V. KITCHEN et al. (Supreme Judicial Court of Massachusetts. Es PIERCE, J. Clara M. Griffin under the sex. Dec. 6, 1916.)

will of her husband, Benjamin W. Griffin, 1. APPEAL AND ERBOR 907(2) RECORD

was given a life estate for her support, comREVIEW OF FINDINGS.

fort and enjoyment or for any other purpose The master's findings of fact, unimpeached by for which she may deem It necessary to use any facts of record, must be taken as true on it, with "full power during her life time, to appeal, in the absence of reported testimony.

(Ed. Note.-For other cases, see Appeal and sell in her sole and individual name, or disError, Cent. Dig. :$ 2911-2913, 2916; Dec. Dig. pose of in any way she may deem necesCm907(2).]

sary,

any or all my said personal 2. WILLS Om693(5)–LIFE ESTATES-POWER OF or real estate." Hale v. Marsh, 100 Mass. DISPOSITION.

468; Welsh v. Woodbury, 144 Mass. 542, 11 A will giving G. a life estate for her sup- N. E. 762; American Baptist Pub. Soc. v. port, comfort, and enjoyment, or for any other Lufkin, 197 Mass. 221, 83 N. E. 401. All the purpose for which she may deem it necessary to use it, with "full power during her life, to sell property which should remain at the death

or dispose of in any way she may deem of the wife was given to the plaintiff, necessary

any or all” of the property, The finding of the master upon the facts gives her absolute and unlimited power to use found and testimony reported by him “that the principal for any purpose which she in good faith thinks reasonable and proper to provide an agreement was made between Mrs. Grifin a broad way for her support, comfort, and fin and Mrs. Davis that Mrs. Davis should enjoyment, and so, when afilicted with an of, care for Mrs. Griffin, and should receive in fensive disease, to agree that her sister shall consideration therefor whatever remained of have it for taking care of her the rest of her the property of Mr. Griffin given by him in life, though the sister is without property.

[Ed. Note.—For other cases, see. Wills, Cent. the first item of his will and included in the Dig. & 1656; Dec. Dig. Om693(5).]

inventory of his estate," is supported by the 3. WILLS 693(5)-LIFE ESTATES-POWER OF conversations of September, 1909, of July, DISPOSITION.

1910, and by the conduct of the parties. The Gifts of $100 to each of four persons, in con- finding "that said agreement was deemed by sideration of love and affection, by one who was by will given a life estate for her support, com- Mrs. Griffin reasonably necessary, and was fort, and enjoyment, were not within the power in fact a reasonable appropriation of said given her by the will to dispose of, in any way property for her support and comfort," is a she may deem necessary, any or all of the prop-reasonable conclusion from the facts found erty.

[Ed. Note.-For other cases, see Wills, Cent. by the master that Mrs. Griffin was a woman Dig. $ 1656; Dec. Dig. Om 693(5).)

of a sensitive nature, of refinement and in

telligence; that she was afflicted with a Appeal from Superior Court, Essex Coun- loathsome, disagreeable and offensive disty; John H. Hardy, Judge.

ease; that she had a horror of hospitals; Bill by F. Noble Griffin against Charles that she did not strangers to take care B. Kitchen and others to recover certain of her; that she appreciated the task which money and articles of personal property the nursing and care of her placed upon her in which a life estate had been left to sister; that Mrs. Griffin and Mrs. Davis Clara M. Griffin, widow of Benjamin W. were not informed and did not expect that Griffin. Plaintiff was a son of the latter I the disease was likely to prove fatal until

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

June or July, 1910; that after July, 1910, 1 the circumstances of this case, it appears to they might have known that at some time the plaintiff too obvious for argument that it would terminate fatally but whether with the sole effect of the alleged agreement was in some months or after one or more years not to benefit Mrs. Griffin in the slightest Mrs. Griffin did not then nor till shortly be degree, but to give to the sister all the balfore her death in 1911, know or appreciate; ance of the estate and to deprive the testa. that whether Mrs. Griffin lived a longer or tor's son of the same. And the plaintiff shorter time, Mrs. Davis was to give her claims that upon all the evidence in the case sister her personal care at her (Mrs. Davis's) and the probabilities, the alleged contract was house; that Mrs. Griffin was advised by her an after-thought on the part of Mrs. Davis, physician that she would not be able to con- conceived by her after her sister's death, as tinue housekeeping and that she had better her only reasonable excuse or pretext for go to her sister's; that in case she remained retaining possession of the money." The at her house two nurses would be necessary claim of the plaintiff overlooks and rejects to care for her, at an expense of $22 per the fact that the thing most desired and weak each, not including board.

most earnestly sought by Mrs. Griffin was [1] The findings that the contract was the comfort she expected to derive from the made in good faith, that Mrs. Griffin was of care of a fond and ever thoughtful sister, sufficient mental capacity to make the con- who agreed and expected to take care of her tract between Mrs. Davis and herself, that as best she could even if the money became she understood the effect of the contract, and exhausted. We are of opinion that the conthat there was no fraudulent intention on tract was a reasonable one, founded upon the part of Mrs. Davis, stand unimpeach- reasonable judgment dealing with existing ed by any facts of record and must be facts and reasonable anticipation of the futaken to be true in the absence of reported ture and having due regard for the purposes testimony. Phelps v. Lowell Inst. for Savs., for which the power was given, and also for 214 Mass. 560, 101 N. E. 1065; Blodgett v. the rights of those whose interests are inAhern, 217 Mass. 262, 104 N. E. 434. The juriously affected by its exercise. Lovett v. master further ruled “that the transaction Farnham, 169 Mass. 1, 6, 47 N. E. 246. in question was not a colorable transaction We are of opinion that the will gave an made without adequate consideration, nor absolute and unlimited power to use the prinbased upon no consideration from Mrs. Davis cipal for any purpose which Mrs. Griffin in except a promise which both parties under- good faith thought reasonable and proper to stood could not be fulfilled, and ruled that provide in a broad way for her support, comthe transfer was not made so that the prop fort and enjoyment. Dana v. Dana, 185 erty in question might pass to the relatives Mass. 156, 70 N. E. 49. of the life tenant rather than to the remain. [3] But we do not think the gift of $100 to dermen." These rulings are not erroneous in each of four persons was a use to the sup law and are conclusive as findings of fact. port, comfort and enjoyment of Mrs. Griffin

[2] “The plaintiff does not contend that if in the sense and meaning of the will. StockMrs. Davis had been a woman of some prop- er v. Foster, 178 Mass. 591, 60 N. E. 407. erty to make her agreement of some substan The decree must be reversed and a decree tial value, the alleged contract might not entered in accordance with this opinion. have been a reasonable contract; but under So ordered

« PreviousContinue »