Jones v. New York Life Ins. Co.
| Decision Date | 18 May 1897 |
| Citation | 47 N.E. 92,168 Mass. 245 |
| Parties | JONES v. NEW YORK LIFE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The testimony for plaintiff in chief was only to the finding of the policy in suit among the papers of deceased and of the authority of defendant's agent whose name was signed thereto. Plaintiff, called as a witness for defendant testified that she could not remember whether she had stated that she objected to deceased taking the policy in suit. She was then asked, "Then I will ask you, as a matter of fact, if you did object?" which question was excluded on objection, and defendant excepted. J.W. Dowse defendant's agent, testified that he issued a policy to deceased for $1,000; that he ordered the policy in suit, for $2,000, on his own responsibility, and tried to get deceased to accept it; that he gave the policy to deceased, telling him that, if he would accept it, to sign his name to it, and send a check for the premium, otherwise to return the policy that no premium was ever paid or promised by deceased. On cross-examination he denied that he had stated to Mr. Davis that deceased had taken out a $2,000 additional policy, or that he had so stated to Dr. Sawyer, and did not remember having made such statement to Mr. Curtis. For plaintiff, in reply, J.R. Davis testified that Dowse stated to him that he had insured deceased for $3,000. Dr. Sawyer testified that Dowse stated to him that deceased had taken out $2,000 additional insurance, and H.L. Curtis testified that Dowse told him that he had written the two policies for deceased. The policy in suit provided that: "This contract is made in consideration of a written application for this policy, and of the agreements, statements, and warranties thereof, which are hereby made a part of this contract, and in further consideration of the sum of $55.20, etc.," yearly premium.
Herbert Parker and Chas. C. Milton, for plaintiff.
W.S.B. Hopkins and T.H. Gage Jr., for defendant.
1. The presiding justice could properly exclude the question put by the defendant's counsel to the plaintiff, whom he had called as a witness, whether, as a matter of fact, she made objection to her husband to his taking the policy declared on. Proof that she objected in a preliminary conversation would have no tendency to prove that he did or did not afterwards take the policy. Besides, the question called for a communication made by a wife to her husband, and it was not so framed as to exclude private conversations.
2. The testimony of the witnesses Davis, Curtis, and Dr. Sawyer to conversations with the defendant's witness Dowse was competent, as tending to contradict him. He had testified, in substance, that the policy was never delivered, either for cash or on credit.
3. The court properly refused to give the instruction: "There is no evidence in the case competent to prove the delivery of the policy in suit as a valid policy of existing insurance." The production of the policy by the plaintiff, with testimony that it was found, with other papers of the intestate, in his desk, immediately after his decease, was evidence that it had been delivered as a valid contract of existing insurance. Chandler v. Temple, 4 Cush. 285; Valentine v. Wheeler, 116 Mass. 478; Perley v. Perley, 144 Mass. 107, 10 N.E. 726. Such a document is not, ordinarily, found in the custody of the assured unless it belongs to him as a contract that may be enforced according to its terms. Possession by the assured is evidence that everything has been done that need be done to give it validity. The effect of the testimony of the witness Dowse, in connection with the other circumstances of the case, was for the jury.
4. The only other exception is to the refusal of the court to rule that "on the evidence the policy in suit would not be a valid policy of existing insurance, unless accepted by the signature of the insured to the application, and the forwarding of a check for the premium, or the payment of the premium otherwise."...
To continue reading
Request your trial