N.Y. Life Ins. Co v. Taliaferro

• Citation: 28 S.E. 879,95 Va. 522
• Parties: NEW YORK LIFE INS. CO. v. TALIAFERRO.
• Decision Date: 20 January 1898
• Court: Supreme Court of Virginia

28 S.E. 879

95 Va. 522

NEW YORK LIFE INS. CO.

v.TALIAFERRO.

Supreme Court of Appeals of Virginia.

Jan. 20, 1898.

Principal and Agent—Ratification—Sufficiency of Evidence—Instructions— Appeal—Re view.

1. Where a party objects to incompetent evidence, which is nevertheless admitted, and afterwards he introduces the same evidence, the error is either waived, or, if not waived, rendered harmless.

2. On an issue whether an insurance company had ratified its agent's agreement to make a cash rebate on a premium, the court properly refused to charge that the deposit and use by the company of the agent's check for its share of the premium, less the rebate, was not a waiver of its right to the balance of the premium, if at the time the company was steadily claiming such balance, where there was other evidence than that recited in the instruction tending to show a ratification.

3. An insurance agent without authority gave a rebate on a policy. After the policy was delivered, but before the company had been paid any of the premium, it had full knowledge of all the facts, and knew that the agent thought, though erroneously, that it had authorized the rebate. When it called on the agent to account for the rebate, he declined to do so, and requested the company, if the contract of insurance was not satisfactory, to return the check then held by it for its share of the premium, less the amount of the rebate (and marked net amount in full of the cash premium), and stated that he would cancel the policy. The company declined to do this, and afterwards collected the check and used the proceeds. Held, that a finding that the company had ratified the rebate was warranted, though it continued its demand on the agent to make good the amount thereof.

Error to chancery court of Norfolk.

Action by W. H. Taliaferro against the New York Life Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Walke & Old, for plaintiff in error.

W. L. Williams, for defendant in error.

BUCHANAN, J. W. H. Taliaferro brought an action of assumpsit against the New York Life Insurance Company to recover compensation for services rendered as agent of that company. A Judgment was rendered in his favor, and to that Judgment this writ of error was awarded.

Upon the trial of the cause the plaintiff introduced in evidence a written agreement between the parties, by which the plaintiff was created the agent of the defendant company, and the terms and conditions of the agency were fixed. To the introduction of that paper the defendant objected, upon the ground that It was under seal, and would not, therefore, sustain an action of assumpsit; but the objection was overruled, and this action of the court is assigned as error. At a later stage of the trial the defendant company read to the jury the deposition of its president, to which was attached a duplicate of the written agreement introduced by the plaintiff. This, the plaintiff insists, was a waiver of the defendant's objection to the introduction of the paper.

If this be so, it is immaterial whether the writing was under seal or not.

If a party objects to the introduction of evidence, and afterwards introduces the same evidence himself, it Is no ground for reversing the judgment, although the evidence objected to was incompetent. Some courts so hold because the error is harmless, and others because the subsequent introduction of the same evidence is a waiver of the objection. Whether it be placed upon one ground or the other, the result is the same.

In the case of Iron Co. v. Fields (recently decided by this court) 26 S. E. 426, where this question arose, it was said: "But, even though the court erred in admitting the record when offered by the plaintiffs, that error was cured by the defendant, when they themselves, at a subsequent stage of the cause, offered the same record in evidence. If the action of the court in permitting this record to be read at the instance of the plaintiffs were now held to be erroneous, it would not affect the record, as it was presented in the trial before the jury, for it would still be in evidence upon the motion of the defendants. * * * ...