51 Vt. 613 | Vt. | 1879
The opinion of the court was delivered by
This is an action of covenant broken on a policy of life insurance issued by the defendant to the plaintiff’s intestate, Mrs. Lorane D. Nay. The policy is a contract under seal inter partes — Mrs. Nay of the one part, and theNorth-Eastern Mutual Life' Association of the other part —and to that contract the plaintiff’s intestate and the defendant were the sole legal parties. Had the policy been a simple contract, under the circumstances of this case, the amount of the insurance being made in terms pay
The second point made by the defendant is that Fairchild had no insurable interest in the life of Mrs. Nay, and that the policy is therefore a wagering contract, and void by the law of this State. This action is brought by Benjamin Fairchild in his capacity of administrator of the estate of Mrs. Nay, as the nominal party to the sealed instrument declared upon. Section 18, c. 52, Gen. Sts., provides that, “when an executor or administrator shall commence or prosecute an action for any debt, demand, or claim for damages, and shall be only a trustee of such claim for the use of another person, or where the claim, although prosecuted in the name of the executor or administrator, belongs to another person, the sum or property recovered shall not be considered as assets in the hands of such executor or administrator, but shall be paid over to the person entitled to the same, after deducting or being paid the costs and expenses of the prosecution.” Upon this statute and the evidence before us it must be assumed that the plaintiff sues also as trustee for the beneficiary, named in the policy and the real party in interest in this suit, viz., himself. If it were shown, therefore, that in point of fact Fairchild procured this policy to be issued upon the life of Mrs. Nay himself, and for his own benefit, the question of his insurable interest perhaps might properly arise. But the prima-facie showing of the policy, application, and receipts is, that Mrs. Nay procured the policy to be issued herself, upon her own life, and chose to make Fairchild the beneficiary. To rebut this, the only evidence in the case tending to show that Fairchild procured the policy to be issued, is his own testimony that he paid the assessments made upon
The defendant requested the court to charge the jury that the burden of proof was upon the plaintiff to establish the bonafides of the transaction. Upon the case as presented to us, the legal presumption must be that in the matter of procuring the policy to be issued, Fairchild acted solely as agent for the defendant; that Mrs. Nay went to him as such agent, and desired to procure a policy, and he forwarded to his principal her application in writing, with his own certificate as medical examiner, whereupon the policy was made out and issued by the defendant. The contract was by and between Mrs. Nay and the defendant, and Fairchild was not a party to it. That it enured to his benefit, was apparent upon the face of the application, which, therefore, was notice of that fact to the defendant, and sufficient to put it upon inquiry as to whether those representations which were made by Fairchild were true. By neglecting to make that inquiry, and electing to issue the policy, the defendant must be regarded as accepting and ratifying the acts and statements of its agent. The authorities to which we are cited by the defendant’s counsel, support the well-established rule which would cast upon an agent seeking to enforce against his principal a contract made by him as such agent on behalf of his principal, and enuring to his own benefit, the burden of proof to establish uberrima fides. In the case at bar, the contract was not made or executed by the agent on behalf of his principal. The agent forwarded to his principal certain proofs and documents, which upon their face gave notice that the contract proposed was to enure to his benefit; and the principal, upon the representations contained in such documents and proofs, and with such notice, elected to execute the contract and receive
The question as to the admissibility of that portion of the evidence of Mrs. Edgar Holmes which was objected to, must be considered in connection with the evidence of Mrs. Manley Holmes. The time when the sore on Mrs. Nay’s lip was first noticed was material, and Mrs. Manley Holmes testified with considerable positiveness that it was in June, 1874, while plaintiff claimed it was on or about the 16th of July, 1874. The object and purpose of the cross-examination of Mrs. Manley Holmes seems to have been to show that she was mistaken as to the date, and to obtain from her admissions of facts and circumstances by which it could be demonstrated that she was mistaken. It is often difficult to determine from the record that is sent to this court, whether interrogatories put to witnesses are relevant to any question of fact in the case, or not. The County Court can much better judge of the matter than we can, and where that court has determined the question this court will not reverse its decision, unless it clearly appears to have been erroneous. We understand the rule to be that where the answers to questions put to a witness upon cross-
The only remaining exception insisted upon by the defendant is to the refusal of the court to charge that the proof introduced by the plaintiff had no tendency to show the number of members of the association at the time of Mrs. Nay’s death, the covenant being to pay as many dollars (not exceeding $1,000) as there should be members at that time, and it being incumbent upon the plaintiff to show such number as the measure of his recovery ; and also that there was no evidence that any assessment was made, or attempted to be made, upon the members of the association, to pay the loss upon Mrs. Nay’s policy. The policy itself provides that upon satisfactory proof of the death of the assured, she having conformed to all the conditions thereof, an assessment shall be made in the way and manner therein provided. The presumption being that the defendant has fulfilled all the terms of the contract incumbent on it to fulfil, it was not necessary for the plaintiff to prove affirmatively that the' assessment was made. The notices of assessments made by the defendant upon Mrs. Nay’s policy, signed by the secretary of the association, and put in evidence by the plaintiff, are expressed to be for the payment of death losses occurring at different dates within the time of Mrs. Nay’s membership, from July 17, 1874, to February 18, 1875, her death being admitted in the latter part of March,
Judgment affirmed.