168 Mass. 245 | Mass. | 1897
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 afterward 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, Dows, was competent as tending to contradict him.
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
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.” The bill of exceptions states that “ appropriate instructions, to which no exception was taken, were given to the jury on all issues in the case, the defendant claiming only that the requests should also have been given.” The proposition involved in the request is in substance that it would be impossible for the company to deliver its policy in such a way as to give it validity, unless the application was signed by the assured, and payment of the premium was made by check or otherwise. Unless the proposition is correct in both of its branches, the instruction was rightly refused.
The only reference in the policy to the application and to the payment of the premium ic in a recital of the consideration for the defendant’s undertaking. There is no provision in the policy that the binding force of the defendant’s promise shall depend upon the accuracy of the statement of the consideration. If a deed poll is founded on a valuable consideration, it is immaterial whether the consideration is correctly stated in it or not. Signing the application and making payment in cash or by check are not made conditions precedent to the taking effect of the policy. The policy in suit is dated May 19, 1894, and the defendant had just issued to the assured another policy for SI,000, dated May 8, 1894, for which an application had been regularly made and signed. Stamped upon the policy in suit are these words: “ This policy is issued and accepted for two thousand dollars additional insurance, based upon the terms of the application on which Policy No. 609,091 was issued, and said appli
We are of opinion that the other part of the proposition was equally erroneous. We understand that the instruction was intended to call for a payment in cash or its equivalent, as distinguished from a delivery on credit. But it has often been .held that a company may waive a provision of this kind, and that, if a note or a promise is accepted in payment, the policy is in force. Markey v. Mutual Benefit Ins. Co. 103 Mass. 78. White v. Connecticut Ins. Co. 120 Mass. 330. Wheeler v. Watertown Ins. Co. 131 Mass. 1, 7. Miller v. Life Ins. Co. 12 Wall. 285, 302, 303. Washoe Tool Manuf. Co. v. Hibernia Ins. Co. 7 Hun, 74; S. C. 66 N. Y. 613.
The case is not like Dunham v. Morse, 158 Mass. 132, 134, in which payment in cash was made a condition precedent to the policy’s taking effect.
There was evidence from which the jury might have found that the agent, Dows, waived an immediate payment of the premium in cash, and delivered the policy on the promise of the assured to pay in the future. A majority of the court are of opinion that this instruction was rightly refused.
JExceftions overruled.
Davis testified that Dows, who was the defendant’s agent, said that he “ had insured ” Jones for $3,000; Sawyer testified that Dows said that Jones “had taken out the $2,000 additional insurance”; and Curtis testified that Dows said that he “had written two policies ” for Jones. It appeared in evidence that, prior to the issuing of the policy in suit, the defendant had issued a policy for $1,000 to Jones.