New York Life Ins. Co. v. Johnson's Adm'r

• Decision Date: 04 March 1903
• Citation: 72 S.W. 762
• Parties: NEW YORK LIFE INS. CO. v. JOHNSON'S ADM'R.
• Court: Kentucky Court of Appeals

72 S.W. 762

NEW YORK LIFE INS. CO. v. JOHNSON'S ADM'R.

Court of Appeals of Kentucky.

March 4, 1903

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by M. W. Johnson's administrator against the New York Life Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.

Humphrey Burnett & Humphrey, for appellant.

Harris & Marshall, O'Neal & O'Neal, and W. McC. Johnson, for appellee.

PAYNTER J.

In June, 1896, M. W. Johnson became the local soliciting agent of the appellant in Garrard county, Ky. Soon thereafter he applied to the appellant for a policy on his life in the sum of $50,000. Two policies were issued, one for $10,000 and the other for $40,000. He never paid the premium on either. Soon after they were issued, he applied to the appellant for a $50,000 policy, to be issued in lieu of the two mentioned which was accordingly done on the 14th day of July, 1896. The policy was payable to Johnson's estate. In due course of business it was sent to General Agent W. R. Noble at Louisville, Ky. It is claimed by the appellant that it was placed in the hands of Johnson (he being treated as the soliciting agent with reference thereto, as with other policies), to go into force when the premium was paid or an acceptable note given for it. The appellee claims that such a note was delivered and accepted, whilst the appellant claims it was tendered but returned. Thus the matter stood until about the 1st of September, 1896, when the policy was returned to the appellant. About the 1st of October the appellant rejected the application for the insurance, and canceled the policy.

It is claimed on behalf of the appellee that the policy was actually delivered and wrongfully canceled. It appears that nothing further was done with reference to it until about the middle of December, 1896, when Johnson died. This suit was instituted by Johnson's administrator on the policy to recover the $50,000.

It is unnecessary to make a fuller statement of the facts for the purpose of this opinion. It is likewise unnecessary to comment upon the letters which were used in the evidence upon the trial of the case.

The questions to be determined on this appeal are upon the admission of certain testimony over the objection of the appellant and the refusal to admit certain testimony in its behalf.

On the trial of the case a pocket memorandum book of Johnson was offered in evidence. It contained a heading and entry as follows: "Insurance written by M. W. Johnson for the New York Life Insurance. June 23, '96, M. W. Johnson $50,000." On another page of the book it contains the following: "Notes taken in payment of insurance wrote in the New York Insurance Co. by M. W. Johnson of Paint Lick Ky. June 23, M. W. Johnson, 4 months, $1,572." It is conceded that the premium on the $50,000 policy was $1,595; so the amount of the note mentioned in the book does not correspond with the amount of the premium which Johnson should have paid. It seems to us for that reason, if for no other, it was error to admit the book as evidence, as no evidence was offered to show that any $1,572 note was ever sent or delivered to the appellant.

The widow of Johnson was allowed, over appellant's objection, to testify as to communications between her and her husband. This was error. Section 606, Civ. Code Prac.

Mr. R H. Tomlinson, a lawyer of Lancaster, Ky. was introduced as a witness upon behalf of the appellee. He was asked: "Were you employed by Mr. Johnson at any time before his death to bring any suit against the New York Life Insurance Company in respect to a policy for $50,000 in that company?" He answered that he had been, and then proceeded to detail a conversation with Johnson, wherein Johnson stated the transaction from his point of view which he had with the appellant in reference to the policy in question. This testimony was offered with a view of showing that the policy had been delivered to Johnson, and that Johnson had not acquiesced in the rejection of the application by the company and the cancellation of the policy. No one representing the New York Life Insurance Company was present when that conversation took place. It was hearsay evidence. If a cause of action could be made out by statements which the plaintiff had made to others as to the transaction (not in the presence of the party against whom it is asserted), then to follow such rule it would be quite an easy thing for any one to establish a cause of action against one who was under no liability whatever to the party making such a claim. In Dixon v. Labry (Ky.) 29 S.W. 21, it appeared that one party claimed the property by a gift from his grandfather and the other party claimed that he had acquired title to it by a subsequent purchase from the grandfather. The court held that it was incompetent to prove the statements of the grandfather, not in the presence of the plaintiff, to the effect that he had not given the property to the grandson. In Lowery v. Erskine, 113 N.Y. 52, 20 N.E. 588, it was held, where it was claimed that an uncle took notes in the name of his niece, that it was not admissible in the suit of his personal representative against the niece to prove that the uncle had said that he took the notes in the...