72 N.Y. 385, Stilwell v. Mutual Life Ins. Co.

• Date: 05 February 1878
• Docket Number: .
• Citation: 72 N.Y. 385
• Parties: MARY L. STILWELL, Respondent, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 385

72 N.Y. 385

MARY L. STILWELL, Respondent,

v.

THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

New York Court of Appeal

February 5, 1878

Argued Jan. 12, 1878.

Page 386

COUNSEL

Robert Sewell, for appellant. No cause of action exists unless fraud is shown. ( Higbie v. Guardian Co., 53 N.Y. 603; Baker v. Home Co., 64 Id., 648; Jeffries v. Ins. Co., 22 Md., 48; Etna v. France, 91 U.S. 512; Foot v. Etna, 61 N.Y. 571.) Mere weakness of intellect, if there is no fraud, is not of itself adequate ground to set aside a transaction. ( Simeon v. Wilson, 3 Edw. Ch., 36; Sprague v. Duel, 11 Paige, 480.) The influence exercised over the deceased by defendant's agent was legitimate. ( Davis v. Calvert, 5 G. & J., 269; Gardner v. Gardner, 34 N.Y. 155.) The deceased was the agent of plaintiff and had power to surrender the policy. ( Baker v. Un. Mut. Co., 43 N.Y. 283; Thompson v. Am. Co., 46 Id., 674.) Very slight evidence of ratification of the agency was sufficient. 1 Chitty on Con. [ 11th Am. ed.], 291;

Page 387

Dillon v. Anderson, 43 N.Y. 231; Warner v. Warren, 40 Id., 228; Happy v. Mosher, 48 Id., 313; Ferner v. Lewis, 10 J. R., 38; Riley v. Suydam, 4 Barb., 222; McCormick v. Barnum, 10 Wend., 104.)There was a complete ratification of the surrender of the policy by plaintiff. ( Lawrence v. Dale, 3 J. Ch., 41; Wheaton v. Baker, 14 Barb., 544; Fisher v. Fadirhall, 21 Id., 81; Minturn v. Main, 3 Seld., 220; Sar. R. R. Co. v. Row, 24 Wend., 74; Loyd v. Brewster, 4 Paige, 537; Brice v. Davenport, 3 Keyes, 474; Hunt v. Singer, 1 Daly, 209; Hazard v. Treadwell, 1 St. R., 506; Rusby v. Scarlet, 5 Esp., 76; Cannes v. Lord, 12 J. R., 300; Erick v. Johnson, 6 Mass., 193; Frothingham v. Haby, 3 Id., 70; 3 Kent's Com. [ 8th ed.], 801; Johnson v. Wingate, 29 Me., 404; Grant v. Beard, 50 N. H., 291; Benedict v. Smith, 10 Paige, 127; Carious v. Bleeker, 12 J. R., 300; Klock v. Richtmyer, 13 Id., 367; Johnson v. Jones, 4 Barb., 369; Viana v. Barclay, 3 Cow., 281; Shrias v. Morris, 8 Id., 60; Towle v. Stevenson, 1 J. Cas., 110; Armstrong v. Gilchrist, 2 Id., 424; Codwise v. Hucker, 1 Cai., 526; Hogan v. Mayor, 5 Hill, 389; Mumford v. Am. L. Co., 4 N.Y. , 463; 1 Chitty on Con., 292; Ely v. Mumford, 47 Barb., 629; Newbury v. Garland, 31 Id., 121; Palmer v. Lawrence, 3 Sandf., 174; Nichols v. Nuchaetes, 23 N.Y. 264; Allerton v. Allerton, 50 Id., 670.)

R. W. Van Pelt, for respondent. The policy belonged to plaintiff, and her husband had no power or control over it. (3 R. S. [ Bank's ed.], 161, § 89; Laws, 1862, chap. 172.) The husband's agency ceased upon the substitution of the policy into defendant's company. ( N.Y. L. Ins. and T. Co. v. Beebe, 7 N.Y. , 364.) The surrender was repudiated by plaintiff within a reasonable time. (2 Kent's Com. [ 8th ed.], 801; Coyle v. City of Brooklyn, 41 N.Y. 619.) No ratification of the surrender could be claimed. ( Gage v. Sherman, 2 N.Y. , 417; Bredendecker v. Lowell, 32 Barb., 9; Clarke v. Meigs, 10 Bos., 337; Hope v. Lawrence, 50 Barb., 258.) To make an unauthorized act of an agent

Page 388

binding on the principal, on the ground of a subsequent ratification, such ratification must have been made with full knowledge of the facts affecting his rights. ( Seymour v. Wyckoff, 10 N.Y. 213; Nixon v. Palmer, 8 Id., 398; Owing v. Hull, 9 Pet., 629; Brass v. Smith, 40 Barb., 659; Howell v. Christy, 3 Lans., 238.)

CHURCH, Ch. J.

This action is brought to procure a restoration of a policy of insurance upon the life of the plaintiff's husband, which was surrendered by him to the defendant, and the claim to recover is based upon two grounds: one, that the agent of the defendant, by means of persuasions, intimidations and threats, induced and coerced the husband, when his health and mind were impaired, to surrender the policy; and the other that the husband surrendered it without authority. The judge before whom the case was tried found in favor of the plaintiff upon both points, and directed a judgment accordingly. The policy was issued on the 27th March, 1875, and surrendered on the twelfth of June by the husband, who died on the thirteenth or fourteenth of July the same year. It is urged on behalf of the appellant that the facts proved are not sufficient to justify the finding that the husband was coerced, by intimidations and threats, to surrender the policy. The general rule that the findings of a judge or referee upon the facts are conclusive upon this court, if there is any evidence to warrant them, applies as well to actions in equity as actions at law; and in either class of actions, upon an appeal from affirmance of the judgment, we are only authorized to review the facts for the purpose of ascertaining whether any allowable construction of which they are capable will warrant the conclusion of facts at which the judge or referee has arrived. If they will, the judgment will not be disturbed; but if not, the finding is without evidence or against evidence, and is a violation of law. The rule is similar to that presented on a motion for a nonsuit. If the evidence is not sufficient to sustain a verdict for the plaintiff, and if it would be set aside as

Page 389

against evidence, the motion...