Monast v. Manhattan Life Ins. Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: PARKHURST, J.
• Citation: Monast v. Manhattan Life Ins. Co., 32 R.I. 557, 79 A. 932 (R.I. 1911)
• Decision Date: 25 May 1911
• Parties: MONAST v. MANHATTAN LIFE INS. CO

79 A. 932

32 R.I. 557

MONAST

v. MANHATTAN LIFE INS. CO

Supreme Court of Rhode Island.

May 25, 1911.

On Rule to Show Cause, July 7, 1911.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B Tanner, Presiding Justice.

Action by Georgina Monast against the Manhattan Life Insurance Company. There was a decision for plaintiff, and defendant brings exceptions. Reversed.

Hugh J. Carroll and Waterman, Curran & Hunt, for plaintiff.

Gardner, Pirce & Thornley (William W. Moss, of counsel), for defendant.

PARKHURST, J. This is an action on the case in assumpsit for money had and received, brought for the purpose of recovering back certain premiums alleged to have been paid by the plaintiff to the defendant on two policies of life insurance on the life of Arthur J. Marchant, the plaintiff's nephew by marriage. It was tried before a judge of the superior court for the counties of Providence and Bristol, sitting without a jury, on the 29th day of November, 1909, and the 9th and 10th days of March, 1910. By a rescript filed a few days after the trial was finished, the judge decided that the plaintiff was entitled to recover of the defendant all the premiums which had been received by the defendant upon these policies, amounting in all to $1,241.90. To this decision, and the conclusions of fact and law upon which it was based, the defendant duly excepted, averring that it was against the evidence and contrary to law, and that the damages were excessive; and a bill of exceptions, covering the exceptions so taken and a few exceptions taken in the course of the trial of the case, was duly allowed by the superior court, together with a transcript of all the evidence. The questions before this court now are whether the decision is supported by the evidence and whether any of the rulings excepted to by the defendant constitute reversible error. The principal facts of the case are as follows:

The plaintiff in the fall of 1902 went to call on her sister-in-law, Mary C. Marchant, mother of A. J. Marchant, the assured. There she met these two, and also an insurance agent named Brophy, who was a duly appointed agent of the Metropolitan Life Insurance Company, having an office in the city of Providence. Mrs. Marchant began to talk about life insurance, and said she wanted to have her son's life insured. The son said to the plaintiff, "If you have my life insured, I will have yours," and she said, "All right." She signed no application then, or at any other time. About a week or two after that interview Brophy came to her with two policies on the life of A. J. Marchant, which he told her were one for $5,000 in the Manhattan Life Insurance Company and the other in the Metropolitan Life Insurance Company. He told her, as she says, that these policies were made payable to her. Plaintiff was not satisfied to take Brophy's word as to the beneficiary in the policies, and, being unable to read herself, she had a niece of hers read them, and was told by her that she (the plaintiff) was named as beneficiary. The plaintiff kept these policies, and did not have them read to her again until about two months before the death of the assured, supposing, as she said, that they were payable to her. She says she paid the premiums every year for five years to Brophy on the Manhattan Life Insurance policy, and took receipts from him, which must have been his personal receipts, and not official receipts of the company. What amounts she paid, or what Brophy did with the money, was not shown, except as to the last payment, which was made by a check, payable to the Manhattan Life Insurance Company, which was for $201.90, the amount of the annual premium on a policy which was actually issued by that company on the life of A J. Marchant, dated October 15, 1902, and made payable to his executors, administrators, or assigns, and actually paid to the administrator of his estate upon surrender of the policy and proof of his death in the spring of 1907. This check was shown to have been received and indorsed by E. A. Dunham, the New England manager for the defendant company; but it is not drawn by the plaintiff, does not bear her name, nor the name of Brophy, and in itself cannot be regarded as giving to the defendant any notice of any connection between the plaintiff and the policy, or any interest of the plaintiff therein.

At least two months before the death of the insured the plaintiff was told by two men, Mr. Herschcovitz and her nephew, George Maynard, that two policies which they saw, presumably these policies, were not payable to her; the $5,000 Manhattan policy being payable to the estate of the assured, and the Metropolitan policy (which was for $3,000) being payable to Mrs. Marchant, his mother. They talked with Brophy about the matter, but did nothing else until after the death of the assured, who died of consumption. About two days after his death Brophy came to her and persuaded her to let him take one of these policies, saying that he would get the money for her. "He did not say he would get it for Mrs. Marchant." At first she said this was the Manhattan policy; but afterwards she changed her testimony, and said it was the Metropolitan policy. Instead of getting the money for her on this policy, Brophy assisted Mrs. Marchant in collecting the money on it from the Metropolitan Life Insurance Company, for which he was agent. Brophy got $500 for himself, and then ran away out of the state, and has not returned since, so far as shown. Several weeks after she let Brophy take this policy, George Marchant, brother of A. J. Marchant, and administrator of his estate, though she does not admit that site knew it at the time, came to her and told her that Brophy had run away. He asked her then, according to her story, to let him take the Manhattan life policy for a few hours to compare it with a policy that he had, and she gave it to him, though she admitted that she knew at the time that it was payable to the executor or administrator of the deceased. When the administrator did not bring the policy back, she consulted attorneys, and then went with her friend, Mr. Herschcovitz, and her nephew, George Maynard, to the office of Isaac L. Goff, where they met Mr. Dunham, New England manager for the defendant company. There she told Mr. Dunham that the policies belonged to her, and said nothing else. The others told him that she had thought she was beneficiary in the policy and had paid the premiums on it. They had other interviews with Mr. Dunham, but seem to have given him no further information. He said that he would see the Marchants and try to fix things up between them.

Mr. Carroll, her attorney, also testified that he told Mr. Dunham that in his opinion the whole business was a fraud on the plaintiff, and that he was thinking of filing a bill in equity to restrain the company from paying the money until the matter could be investigated, and that Mr. Dunham said he would not pay the check until everything was understood. Mr. Dunham denied any such promise, but said that he agreed to see the Marchants and try to arrange the matter with them, but did not succeed. In rebuttal, Mr. Carroll said that he told Mr. Dunham that the plaintiff had been beaten out of the money, and that they were going to try to make them (evidently meaning the Marchants) put it back again, if they could get it, and that Mr. Dunham said be would see the Marchants and try to settle it up, if Mr. Carroll would only keep quiet and wait. In all the interviews only the one policy seems to have been mentioned, and there was no rescission or attempt at rescission of that, and no demand for a return of the premiums from the company. Moveover, nothing seems to have been said about any false representations by Brophy, who apparently was not mentioned at all. All that seems to have been asked of Mr. Dunham was that he hold back payment of the amount of the policy from the administrator of the estate of the assured, and try to get him to let the plaintiff have part of the money, because she had paid the premiums. The plaintiff and her attorney seem to have been quite willing that Mr. Dunham should pay the company's money to the administrator, if a part of it was paid by the latter to her.

Under these circumstances, Mr. Dunham, being unable to arrange a satisfactory settlement with the Marchants, paid over the check for the policy to the administrator. It was immediately cashed by the administrator, and the paid check, with the policy attached, went back to the company. Later the present suit was brought, evidently for a return of the premiums paid on this policy alone, as the damages laid were only $1,000; and it appears to have been only as an afterthought that premiums alleged to have been paid to the defendant on a later policy were asked for also. This later policy was for $3,500, dated October 28, 1902, and also payable to the executors, administrators, or assigns of Arthur J. Marchant; but there was no satisfactory evidence that the plaintiff ever paid any premiums upon it to Brophy, or ever had possession of it, and, if she did, there was nothing to show how or when she got it. She testified that she paid the premiums on it for five years to Brophy; but it appeared later that this testimony was entirely unreliable. She said Brophy told her it was payable to her; but when he told her this does not appear, nor did she say that she was induced to take it and pay any premiums on it by any such statement on his part, or that he had anything to do with her having the policy, if she ever had it. At any rate, whoever had the policy at first, only two premiums were ever paid on it to the company, and it lapsed in consequence and was surrendered to the company. By whom the two premiums were actually paid to the company was not shown; but they were received as the money of the assured, and applied to his credit by the company, who knew nothing about the plaintiff, or...