The Mut. Benefit Life Ins. Co. v. Ruse

• Decision Date: 30 June 1850
• Docket Number: No. 89.,89.
• Citation: 8 Ga. 534
• Parties: The Mutual Benefit Life Insurance Company, plaintiff in error. vs. John C. Ruse.
• Court: Georgia Supreme Court

8 Ga. 534

The Mutual Benefit Life Insurance Company, plaintiff in error. vs. John C. Ruse.

No. 89.

Supreme Court of the State of Georgia

JUNE TERM, 1850.

Attachment, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1850.

On the 15th of July, 1846, the Mutual Benefit Life Insurance Company issued to John C. Ruse a policy of insurance upon the life of Ira D. Bugby, for the sum of $2000, at an annual premium of $97 40, " to be paid on or before the 10th day of April in every year, " and reciting, that "in case the said John C. Ruse shall not pay the said annual premium on or before the several days hereinbefore mentioned for the payment thereof, " then the policy to be void.

By the " prospectus, " &c. contained in a printed pamphlet delivered by the agents of the company to persons insuring, as containing the conditions on which insurance could be effected, it was stated under the head of " Forfeiture of Policy, " as follows: " A party neglecting to pay his premium within thirty days after it becomes due, " forfeits the interest he has in the policy.

On the 14th of April, 1847, four days after the annual premium became due, Ira D. Bugby died, and a few days thereafter, before the expiration of the thirty days, the annual premium was tendered to the agent of the company, and refused by him.

Ruse sued out an attachment against the company, and on thetrial of this case, the questions were made which are brought up for review.

The facts above stated were in evidence, when plaintiff tendered the printed pamphlet referred to above. Objected to by counsel for defendant, and objection overruled. This is the first error assigned to the decisions of the Court below.

The Court was requested by counsel for plaintiff below to charge the Jury that the pamphlet in evidence proved that the party was allowed thirty days in which to pay the premium. The Court declined so to do, but said that the language was equivocal, and that he would refer it to the Jury for their own construction.

The Jury found a verdict for plaintiff; whereupon defendant's counsel moved for a new trial—

1st. Because the Court erred in admitting the pamphlet in evidence.

2d. In refusing to charge as requested by plaintiff, and in charging as stated.

3d. Because the verdict of the Jury is contrary to law and evidence.

The motion was refused, and error is assigned thereon.

H. Holt, for plaintiff in error, cited the following authorities in support of the errors charged in refusing the new trial, on all the grounds taken in the rule nisi:

1 Phil, on Ins. 24 to 30, inclusive. 2 Phil, on Ins. 730 to 732. 13 Mass. R. 96, Higgenson vs. Dall. 2 Cain's R. 155, Vanderboort and another vs. Smith, Pres't Col. Ins. Co. 2 Johns. Rep. 346, Cheriot vs. Barker. 5 Pick. 37, Parks et al. vs. General Interest Ins. Co. 1 H. Black. 254, Routledge, ex'r of Routledge, vs. Burrell and another. 2 H. Black. 574, Wood et al. vs. Woosley. 6 T. R. 710, same casein error. 5 T. R. 695, Tarlton et al. vs. Standiforth et al. 6 East. Rep. 571, Salvin et al. vs. James & Langston. 12 East. Rep. 183, Want &Gaskoin, ex'rs of Want, vs. Blunt et al. 7 M. & W. 151, Acey and another, ex'rs of Simpson, vs. Br. Com. Ins. Co. 6 Wend. 488, Duncan vs. Sun. Fire Ins. Co.

H. L. Benning, for the defendant in error, relied upon the fol-lowing authorities: Authorizing the admissibility of the evidence, and the finding of the Jury, viz:

See 1 Phillips on Insurance, 30. The Ex'rs of Want vs. Blount and others, 12 East. 182. 6 East. 571. 5 Term Rep. 695. Grcenleaf's Ev. 405. 12 Wheaton, 515. 4 Cowen, 645.

To show that the rule under the prospectus, allowing thirty days are similar to days of grace, and as to rule allowing days of grace, referred to Bailey on Bills, 235. 9 Wheaton, 581. 1 Peters, 25. Bailey on Bills, 243. 4 Mass. R. 345. 6 Mass. 449. 17 Mass. R. 449. 9 Pick. 420.

As to the construction of policies. 2 Binney, 373. 1 Burrows, 349. 12 Wheaton, 383. Marshall on Ins. 2 vol. 796.

By the Court. —Nisbet, J. delivering the opinion.

The errors assigned grow out of the refusal of the Court below to award a new trial at the instance of the defendant below. The specifications of error are, the grounds taken in the rule for a new trial. But counsel for the plaintiff in error relied, before this Court, only upon two of those grounds, to-wit:

1st. Because the Court erred in permitting said pamphlet, or any portion thereof, to be read in evidence on the trial of said case.

2d. Because the Court erred in this, that when the attorney for the plaintiff requested him to charge the Jury that the pamphlet in evidence proved that the party was allowed thirty days in which to pay the premium, the Court refused, saying that the language was equivocal, and that he would refer it to the Jury for their construction.

The pamphlet referred to, purports to be the rules and regulations of the plaintiff in error—" The Mutual Benefit and Life Insurance Company." It contains numerous statements or rules, which relate to the business and the manner of conducting it, of that company. It does not appear to have been published by the authority and direction of the company; but it was proven that pamphlets of like character with this, were handed out, at different times, by the company, to persons wishing to deal with them, and making enquiry as to the terms, &c. of insurance. In this pamphlet, among other things, is the following article: " Aparty neglecting to settle his annual premium within thirty days after it is due, or paying assessments within sixty days, as specified in the charter, or refusing to give satisfactory security upon the note, forfeits the interest he has in the policy."

The plaintiff below read in evidence the policy, by which the premiums are stipulated to be paid annually on the 10th of April, and in which it is further stated, " in case the said John C. Ruse (who was the party who had insured the life of a Mr. Bugby) shall not pay the said annual premiums on or before the said several days hereinbefore mentioned for the payment thereof, then, and in every such case, the said company shall not be liable to the payment of the sum insured, or any part thereof, and this policy shall cease and determine."

It was farther in evidence, that Bugby, the person whose life was insured, died on the 14th day of April—four days after the time when, by the policy, the premium was payable, and that after his death, and within the thirty days, the premium was tendered, which was due on the policy on the 10th of April preceding, and refused by the company. Under these circumstances, the pamphlet referred to, and more particularly that portion of it before recited, was admitted in evidence for the plaintiff below.

The manner in which the second ground of error is stated in the record, is somewhat equivocal. The language of the rule is to the effect that the Court erred in this—that when counsel for the plainliff requested him to charge the Jury that the pamphlet in evidence proved that the party was allowed thirty days in which to pay the premium, the Court refused, saying that it was equivocal, and that he would refer it to the Jury for their own construction. Now, it is hardly to he presumed that the plaintiff intended to bring before this Court, as error, the refusal of the Court to charge a proposition at the request of the other side, which he maintains is unsound. The refusal of the Court thus to charge, was negatively in his favor, and he would not except to a decision in his own favor. Such exceptions and alleged error would reach no point in the first instance, and would be abused in the second. I apprehend that the real ground of error, is the refusal of the Court to put the true legal construction upon this thirty day clause in the pamphlet, but left that to the Jury, in saying to them, it was equivocal and for their construction. The question made by these assignments is this: what, in the state of this case, is the legal effect of this clause in the printed pamphlet? This is clearly a question for the Court. He ought to have instructed the Jury as to the law which should govern the rights of these parties arising under this policy, and the facts proven, and this article of the pamphlet. He did not do so—but left the construction to the Jury. The defendant had a right to complain of this, for the pamphlet being in evidence, the Jury was bound to believe that it was legally before them. If, in law, the obligation of the defendants to pay the insurance is not affected by this clause in the pamphlet, why then, the admission of it in evidence, and the failure to instruct the Jury as to its legal effect, was a virtual ruling against the rights of the defendants. Upon the hearing of the cause we thought that there was no error in the admission of the pamphlet, it being put out as the terms and conditions of insurance, by the defendants, and, on that account, to be considered by the Jury subject to the control of the Court, in its right and obligation to pronounce upon its effect in law upon the policy. Upon looking into the authorities, I am satisfied that we were in error, and, for myself, I now correct it. I am now convinced that its admissibility depends upon its effect on the contract, and if, as we hold, it does not vary the policy, so as in any way to affect the liability of the company thereon, it was not admissible. This question becomes immaterial, as the judgment we pronounce upon the clause in the pamphlet will control the cause, so far as that clause is concerned with it. My correction, therefore, of what to me appears to be an error, does not at all interfere with the judgment of the Court, as pronounced at the hearing. Its discussion, however, is of some importance, for the reasons which exclude the pamphlet as evidence, shed light upon the construction which we give to it.

The position of the plaintiff below, is, that this pamphlet, being promulgated as containing the terms and...