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 dewas 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 Tura new trial was then filled, 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 deare 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. On April 16, 1912, defendant issued to plaintiff a policy of insurance, by the terms of which defendant, in consideration of the sum of $50 as premium, agreed to insure plaintiff against the loss of two horses by death for a period of one year to the amount of $100 on one horse and $400 on another, named "Turban." Before the expiration of the policy defendant mailed a letter to plain ately notified defendant of the death of the horse, and asked what disposition should be made of him, and was told by Cummins to bury him. He had the horse moved, however, to Hagerstown, where an autopsy disclosed that he had died from acute indigestion. The horse had never been sick before, was a pedigreed stallion, and was worth $1,000. After the death of the horse and within a reasonable time, on the 22d day of May, plain. tiff wrote a letter to defendant, in which he narrated all the business transactions had with their agent; that he relied upon the statement made by the agent that the horse was insured; that he had died shortly after the new insurance had been placed; that he had notified the agent of his death, and demanded the new policy and the amount of insurance which had been placed on the horse. All of which was refused by the defendant on the ground of nonliability. Upon the foregoing facts the court stated conclusions of law as follows: First, the law is with the plaintiff on the finding of facts hereinbefore found; second, that the plaintiff should recover the sum of $381.72, together with costs. [1] Parol contracts of insurance have been many times held valid and of binding force by both the Supreme and Appellate Courts of this state. Angell v. Hartford Ins. Co., 59 N. Y. 171, 17 Am. Rep. 322; Western Assurance Co. v. McAlpin, 23 Ind. App. 220, 55 N. E. 119, 77 Am. St. Rep. 423; Ohio Farmers' Ins. Co. v. Bell, 51 Ind. App. 377, 99 N. E. 812. [2] The proposition is well settled that an insurance company can, by a preliminary contract, bind itself to issue or renew a policy of insurance in the future. The controlling question then in this case is, Do the facts constitute such a contract? Insurance companies contract through their agents, and whether he be called a general or special agent, if he had apparent power to solicit insurance, collect premiums, deliver policies, and do all things necessary to transact the business of his company given to his care, and no restriction is brought to the knowledge of the person dealing with him, such agent, under such circumstances, will bind the company by a verbal contract with the assured made at or prior to the expiration of an insurance policy covering live stock, which the assured desired to again insure, either in whole or in part. Kerlin v. National, etc., Ass'n, 8 Ind. App. 628, 35 N. E. 39, 36 N. E. 156; Kitchin v. Hartford Ins. Co., 57 Mich. 135, 23 N. W. 616; 58 Am. Rep. 344; Com. Union Ins. Co. v. State, 113 Ind. 331, 15 N. E. 518. [3] The letter from appellant to appellee in which he was requested to see its agent, and let him take care of his interests, justified him in assuming that such agent had full and general authority to act for it. He had a right from this and other facts proven and found by the court to infer that appellant had authorized all that its agent did and said to appellee concerning insurance. Ruggles v. American Central Ins. Co., 114 N. Y. 415, 21 N. E. 1000, 11 Am. St. Rep. 674. [4] We are satisfied that the finding of facts, considered together, are sufficient on the question of the authority of Cummins to make an oral contract of insurance and of appellee's right to rely, and that he did rely on such authority when the oral contract of insurance contended for was made. But it is appellant's contention that since the original policy of insurance which appellee had received from it in 1912 contained limitations of the agent Cummins' authority, such limitations in that policy would be notice generally of his limited authority. It has been held, however, and rightly so, that provisions in policies, limiting powers of agents, have reference only to the policy itself, and have no application to the preliminary agreements to insure or to renew existing insurance. Zell v. Herman, etc., Ins. Co., 75 Wis. 521, 44 N. W. 828; Reiner v. Dwelling House Ins. Co., 74 Wis. 89, 42 N. W. 208, 210; 1 Wood on Insurance (2d Ed.) 11. Appellant, although denying that there was a contract of insurance at the time the stallion Turban died, yet contends that if such oral contract of insurance had been consummated, it must be presumed that the parties contemplated such form of policy as to conditions as was used by the parties originally, and since such policy provided that the company would not be liable if the insured failed to render at once by telegraph notice of any sickness with which the horse might become afflicted, there was no liability because of failure to give such notice. made of the last contention we are not reIn view of the disposition we have quired to discuss this proposition. There was evidence, although contradicted, ings cover all the issues tried, and they are These findsupporting the court's finding. favorable to appellee, and sustain the conclusions of law and the decision. [5] It appears from the finding of facts in this case that appellee should have been given a judgment for $500, but appellee does not contend for this, and no point is made in the briefs. Appellant is in no position to object. Judgment affirmed. (225 Mass. 335) accident, "I saw Mr. Page as he turned from PAGE V. COMMERCIAL TRAVELERS' State street towards Merchants' Row and EASTERN ACC. ASS'N. (Supreme Judicial Court of Massachusetts. Suffolk. Dec. 6, 1916.) INSURANCE 668(11)-ACCIDENT INSURANCE -CAUSE OF DEATH-QUESTION FOR JURY. A benefit insurance policy provided that, in case of death by accident, the association would pay a certain sum on proof thereof satisfactory to the board of directors. The death certificate of insured stated that the cause of his death was coronary sclerosis and chronic arterio-sclerosis. The evidence showed that insured fell on the street and died within a few minutes. Held, that the undisputed statement of facts in the certificate controlled the inferences of the cause of death arising from the fact of a fall, rendering it impossible to say as matter of fact that the directors, as reasonable men, should have decided that death was due wholly to accident. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1745, 1763, 1764; Dec. Dig. 668(11).] tripped on an irregularity on the sidewalk and was thrown, striking on his head;" the affidavit of a person who knew the deceased, "that I saw the body of the deceased after death, to wit, on the twenty-second day of October, 1912, and I knew it to be the body of the said Joseph H. Page whom I knew and who died as aforesaid;" the affidavit of the undertaker, who stated in answer to the question, "What was the cause of death?” copied from medical examiner's death certificate, "Coronary sclerosis, chr. arterio-sclerosis;" and the death certificate, recorded October 26, 1912, wherein it is stated that the primary or secondary cause of death was coronary sclerosis, chronic arterio-sclerosis. November 25, 1912, the board of directors by letter advised the beneficiary that her claim was disallowed, "as proofs filled at this Exceptions from Superior Court, Suffolk office on November 6th, 1912, are not satisCounty; Lloyd E. White, Judge. Action by Elizabeth M. Page against the Commercial Travelers' Eastern Accident Association. There was a verdict for plaintiff, and defendant excepts. Exceptions sus tained, and judgment entered for defendant, under St. 1909, c. 236. R. G. Dodge, A. L. Woodman, and Raymond S. Wilkins, all of Boston, for plaintiff. Eaton & McKnight, of Boston (John A. Daly, of Boston, of counsel), for defendant. PIERCE, J. September 28, 1912, Joseph Harry Page, a man of about 55 years, became a member of the defendant association and received a policy. The plaintiff was the wife of the insured and was named in the policy as the beneficiary in case of death. The association covenanted and agreed "that within sixty days from the receipt by the board of directors of the said association of proof satisfactory to said board of the death of the said member, and that his death has been caused wholly and entirely by external, violent and accidental which shall leave upon the body of said member an external and visible mark, the said association * • will pay to wife of the said Joseph Harry Page means, * the sum of five thousand dollars." October 22, 1912, about noon, the insured was walking up State street, in Boston, to ward Washington street, on the right hand side. As he came to the corner of State street and Merchants' Row he stumbled and fell. He died within a few minutes apparently without recovering consciousness. November 5 and 6, 1912, the beneficiary filed with the board of directors her own affidavit, "that the death of the said member was caused wholly and entirely by external, violent and accidental means, to wit, by a fall to the sidewalk, caused by tripping thereon; the affidavit of a witness to the factory to this board. It appears of said proofs that Mr. Page's death was due to disease, 1. e. coronary sclerosis and chronic arterio-sclerosis and not to external violent and accidental means.” The presiding judge at the trial refused to rule "that the proofs submitted to the board of directors of the defendant by the plaintiff were not sufficient to satisfy said directors as reasonable men, that the death of Joseph Harry Page was caused wholly and entirely by external, violent and accidental means." To this refusal the defendant duly excepted. The judge submitted to the jury the question whether the preliminary proof "was such as to convince reasonable men acting reasonably that the death did happen wholly on account of the accident, solely on account of the accident," and stated that an affirmative determination of this issue "is a condition precedent to the maintenance of the action." The defendant did not except to that part of the charge which dealt with the law which should govern the jury in determining the sufficiency of the proofs submitted to the board if it were proper upon the proofs furnished the directors to leave to the jury the issue whether reasonable men, acting reasonably, should have been satisfied that the death of the insured was due wholly and entirely to the injuries sustained by the accident. The evidence of a stumble and fall to the sidewalk, of a blow on the head, of an unconscious condition and of almost immediate death, would require the conclusion that death was due wholly and entirely to the injuries sustained by the accident, were it not for the certificate of death, that the cause of death was coronary sclerosis, chronic arterio-sclerosis. These positive and undisputed statements of fact control the inferences of the cause of death naturally aris 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 a matter of fact, that the directors as reasonable men acting reasonably ought to have de cided that death was due wholly and entire ly to the accident. was a sister of Mrs. Griffin and had taken care of the latter during her last illness, under an agreement, the terms of which are stated in the opinion. The master who heard 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 fit while living and for expenses incurred by the beneficiary shall furnish sufficient proof to the directors to satisfy reasonable men acting reasonably that death was due wholly and entirely to the injuries sustained by the accident. Traiser v. Commercial Travelers' Eastern Accident Ass'n, 202 Mass. 292, 88 N. E. 901. reason of her death. The master to whom the case was referred found that defendant Davis should pay to plaintiff $2,471.91 and also that plaintiff should recover $400 paid in sums of $100 each to four persons by Mrs. Griffin, the consideration being only love or |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 plaintiff appealed. Reversed, and der St. 1909, c. 236. decree entered. * A will giving G. a life estate for her support, comfort, and enjoyment, or for any other purpose for which she may deem it necessary to use it, with "full power during her life, to sell or dispose of in any way she may deem necessary * any or all" of the property, gives her absolute and unlimited power to use the principal for any purpose which she in good faith thinks reasonable and proper to provide in a broad way for her support, comfort, and enjoyment, and so, when afflicted with an offensive disease, to agree that her sister shall have it for taking care of her the rest of her life, though the sister is without property. [Ed. Note.-For other cases, see. Wills, Cent. Dig. § 1656; Dec. Dig. 693(5).] 3. WILLS 693(5)-LIFE ESTATES-POWER OF DISPOSITION. Gifts of $100 to each of four persons, in consideration of love and affection, by one who was by will given a life estate for her support, comfort, and enjoyment, were not within the power given her by the will to dispose of, in any way she may deem necessary, any or all of the property. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1656; Dec. Dig. 693(5).] or real estate." Hale v. Marsh, 100 Mass. 468; Welsh v. Woodbury, 144 Mass. 542, 11 N. E. 762; American Baptist Pub. Soc. v. Lufkin, 197 Mass. 221, 83 N. E. 401. All the property which should remain at the death of the wife was given to the plaintiff. The finding of the master upon the facts found and testimony reported by him "that an agreement was made between Mrs. Griffin and Mrs. Davis that Mrs. Davis should care for Mrs. Griffin, and should receive in consideration therefor whatever remained of the property of Mr. Griffin given by him in the first item of his will and included in the inventory of his estate," is supported by the conversations of September, 1909, of July, 1910, and by the conduct of the parties. The finding "that said agreement was deemed by Mrs. Griffin reasonably necessary, and was in fact a reasonable appropriation of said property for her support and comfort," is a reasonable conclusion from the facts found by the master that Mrs. Griffin was a woman of a sensitive nature, of refinement and intelligence; 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 wish 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 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, | 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 within some months or after one or more years Mrs. Griffin did not then nor till shortly before her death in 1911, know or appreciate; that whether Mrs. Griffin lived a longer or shorter time, Mrs. Davis was to give her sister her personal care at her (Mrs. Davis's) house; that Mrs. Griffin was advised by her physician that she would not be able to continue housekeeping and that she had better go to her sister's; that in case she remained at her house two nurses would be necessary to care for her, at an expense of $22 per weak each, not including board. [1] The findings that the contract was made in good faith, that Mrs. Griffin was of sufficient mental capacity to make the contract between Mrs. Davis and herself, that she understood the effect of the contract, and that there was no fraudulent intention on the part of Mrs. Davis, stand unimpeached by any facts of record and must be taken to be true in the absence of reported testimony. Phelps v. Lowell Inst. for Savs., 214 Mass. 560, 101 N. E. 1065; Blodgett v. Ahern, 217 Mass. 262, 104 N. E. 434. The master further ruled "that the transaction in question was not a colorable transaction made without adequate consideration, nor based upon no consideration from Mrs. Davis except a promise which both parties understood could not be fulfilled, and ruled that the transfer was not made so that the property in question might pass to the relatives of the life tenant rather than to the remaindermen." These rulings are not erroneous in law and are conclusive as findings of fact. [2] "The plaintiff does not contend that if Mrs. Davis had been a woman of some property to make her agreement of some substantial value, the alleged contract might not have been a reasonable contract; but under the sole effect of the alleged agreement was not to benefit Mrs. Griffin in the slightest degree, but to give to the sister all the balance of the estate and to deprive the testator's son of the same. And the plaintiff claims that upon all the evidence in the case and the probabilities, the alleged contract was an after-thought on the part of Mrs. Davis, conceived by her after her sister's death, as her only reasonable excuse or pretext for retaining possession of the money." The claim of the plaintiff overlooks and rejects the fact that the thing most desired and most earnestly sought by Mrs. Griffin was the comfort she expected to derive from the care of a fond and ever thoughtful sister, who agreed and expected to take care of her as best she could even if the money became exhausted. We are of opinion that the contract was a reasonable one, founded upon reasonable judgment dealing with existing facts and reasonable anticipation of the future and having due regard for the purposes for which the power was given, and also for the rights of those whose interests are injuriously affected by its exercise. Lovett v. Farnham, 169 Mass. 1, 6, 47 N. E. 246. We are of opinion that the will gave an absolute and unlimited power to use the principal for any purpose which Mrs. Griffin in good faith thought reasonable and proper to provide in a broad way for her support, comfort and enjoyment. Dana v. Dana, 185 Mass. 156, 70 N. E. 49. [3] But we do not think the gift of $100 to each of four persons was a use to the support, comfort and enjoyment of Mrs. Griffin in the sense and meaning of the will. Stocker v. Foster, 178 Mass. 591, 60 N. E. 407. The decree must be reversed and a decree entered in accordance with this opinion. So ordered. |