Everson v. Casualty Co. of America

• Decision Date: 03 March 1911
• Citation: 208 Mass. 214,94 N.E. 459
• Parties: EVERSON v. CASUALTY CO. OF AMERICA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 214

94 N.E. 459

EVERSON v. CASUALTY CO. OF AMERICA.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1911

COUNSEL

A. H. Russell, for plaintiff.

Peabody Arnold, Batchelder & Luther, for defendant.

OPINION

RUGG J.

This is an action on a policy of accident insurance issued to the plaintiff by the defendant. The injury on which the claim is founded was the amputation of the right hand, made necessary by burning. The circumstances appear with sufficient fullness in Everson v. General Accident & Assurance Corp., 202 Mass. 169, 174, 175, 88 N.E. 658, which was an action by the same plaintiff against a different defendant growing out of the same incident. Only questions of evidence are presented.

1. Among the defenses set up in the answer was one that the plaintiff at the time of the insurance was deeply in debt and that he procured the issuance of the policy for the purpose of defrauding the defendant, and in pursuance of this purpose voluntarily suffered the physical injury complained of. Against the exception of the plaintiff, the defendant was permitted to examine him as to the amount of his property and his indebtedness and his need of money in order to carry forward his business, at about the time the policy was issued. It appeared that he did owe obligations which it was impossible for him to pay in cash. It was competent for the defendant to offer any evidence which tended to show that the plaintiff was in straitened financial circumstances, and had immediate need of ready money, as bearing upon the question whether the policy was fraudulently procured and the injuries voluntarily inflicted. Commonwealth v. Richmond (Mass.) 93 N.E. 816.

2. The answer of the defendant set up cancellation of the policy and a failure of consideration, and that it was issued upon condition that the premium should be paid to the defendant within a reasonable time by one Wood, the plaintiff's duly authorized agent, and a failure so to pay. Wood was called as a witness by the plaintiff, and testified to facts which would warrant a finding that he was agent or broker for the defendant within the meaning of St. 1907, c. 576, § 96. During his cross-examination and subject to the general exception of the plaintiff to all transactions between the witness and the company subsequent to the payment of the premium by the plaintiff to him, the witness produced and there were admitted in evidence four letters tending to show that the defendant refused payment of the premium from the witness and requested him to return the policy for cancellation. No specific objection was made to any part of the letters as not bearing upon any issue. These letters were received in evidence early in the trial, and during the cross-examination of a witness called by the plaintiff. They were all material as bearing on the issues raised by the pleadings, provided there had been proof at any stage of the trial that Wood was in fact the agent of the plaintiff (Green v. Star Ins. Co., 190 Mass. 586, 77 N.E. 649; Horn v. Dorchester Ins. Co., 199 Mass. 534, 85 N.E. 853), or that there was any arrangement whereby the issuance of the policy was conditioned upon payment to the defendant of the premium. It is conceivable that additional evidence bearing on the issues raised by the above recited portions of the answer might have made them material. The ruling of the court when they were offered was merely that 'all the facts ought to be in evidence,' and then if any question of law was raised he would rule upon it. 'All the facts ought to go in evidence. If they want any question of law I will rule on it.' This language, in the light of all the circumstances, fairly means that under the pleadings all the incidents attendant upon the issuance of the policy might be shown and then he would rule upon any special question of law that might be raised later, when all the events touching the transaction were in evidence. The facts as to whether Wood was the agent of the plaintiff in such sense that he could assent to an issuance of the policy conditional upon payment of the premium within a reasonable time, or could assent to a cancellation of the policy, were material under the answer of the defendant. There was something in each of the letters bearing upon each of these issues. In one of them were sentences which perhaps might not have been relevant, but no request was made by the plaintiff to order these sentences withheld from the jury or to restrict the letters to any particular issues. The plaintiffs therefore cannot now complain unless some of the letters were harmful and wholly incompetent. Produce Exchange Trust Company v. Bieberbach, 176 Mass. 577, 581, 58 N.E. 162. As to the issues upon which the letters appeared material at the time they were admitted, the court instructed the jury in favor of the plaintiff--that is, he instructed the jury that the policy was issued to the plaintiff and the contract sued upon was made; that Wood was the agent of the defendant for receiving the premium and payment by the plaintiff to Wood, bound the defendant; that the policy was issued upon a good and valid consideration, and that it had not been canceled; and that Wood was not the agent of the plaintiff for any purpose material to the issues. These included all the questions upon which the letters appeared to have a competent bearing when offered. These rulings in substance rendered the letters wholly immaterial. While a justice presiding over a jury trial should be jealous to protect the parties against harmful and irrelevant testimony, he cannot necessarily be held to a foresight of the end from the beginning. Upon the subjects as to which the letters then seemed to have relevancy, the court instructed the jury wholly in favor of the plaintiff. If the plaintiff had desired that the letters should be stricken from the evidence, it was...