10 Bosw. 82 | The Superior Court of New York City | 1862
Under the evidence and charge to the Jury in this case, the only embarrassment grows out of that part of the complaint which states a cause of action arising out of the execution of the policy, of which a copy is annexed. The testimony of Kelly, one of the plaintiffs, by itself, shows clearly the making of an independent oral contract to insure, irrespective of any agreement to deliver a policy. The question of the reliability of such testimony, and the making of such contract, were fairly left to the Jury, as matters of fact. . The only questions to be considered in regard to such contract,
So, too, the refusal to charge that Campbell was not the agent of the defendants, in regard to any material fact, is warranted by the facts. The only important point of his agency was his receipt of the policy. There was evidence that Hewson, the acknowledged agent of the defendants, employed Campbell to deliver the policy, and receive the premium. His delivery of it was, therefore, theirs, as he did not make it until he received the premium. There was no pretense that the delivery to Campbell was as the agent of the plaintiffs; indeed, the defendants contended to the contrary. In regard to the premium, it was actually paid before the policy was delivered, and its prepayment formed no part of the oral contract to insure. It was not necessary, therefore, to establish either its waiver, or any
The complaint clearly contains two causes of action, although, perhaps, not distinctly enumerated as such. The statement of the second cause, growing out of the written policy, would necessarily have been insufficient to maintain a legal action, without the allegation of waiver of the countersigning of such policy by the agent for the defendants. In the absence of that, it might have been sustained as an action to compel the countersigning, and then to recover on such countersigned policy, which are causes of action that may be joined. (Bunten v. Orient Insurance Company, 8 Bosw., 448.) But the summons is merely for a money demand on contract, and there is no demand for relief, except damages. The complaint concedes the inefficiency of the policy, unless properly deliv
The only remaining point as to which an instruction was requested was, the conversation between one of the plaintiffs and Brewster, a temporary representative of Campbell ; this was to the effect, that what was said or done by the former to the latter, was not a tender of the premium
Hewson’s reasons for not signing the policy were wholly immaterial and properly excluded. The question of the Juror, which was objected to, “ Would it have been a per-“feet policy, if he had paid the premium?” had once already been put and answered, without objection; it was not objected to until repeated, and seems to have been put more with a view either of calling the witness’ attention to the impropriety of sending an imperfect policy to procure the premium, or inducing him to reflect whether he did so, or, perhaps, showing that the signing by the agent had been waived. It certainly was not designed to get at the witness’ opinion on a mere question of law. There is one view in which, even in that aspect, the question was not objectionable. The policy purports to be made in the State of Pennsylvania, and, of course, should be governed by its laws, in its interpretation; the witness had been agent for an insurance company of that State, and might have been familiar with its laws upon that subject; at all events, the objection was not put upon the ground that he was not an expert, which the objector is bound to specify. I have not been able to find any authority for the responsibility of a party for a Juror’s improper question; one has as much right to except to it as another, and neither has the power to withdraw it. It would be rather hard to make either party suffer for the illegal questioning of a Juror. A more appropriate remedy would be to move to strike out the answer, or to call upon the Court to direct the Jurors to disregard it. But in this case the defendants were too late with their objection, after allowing the question to be asked and answered once without it.
Hewson clearly was not proved to be such an expert as to allow him to testify as to estimated damage, if such a mode of proof is admissible at all, and the question put to him to that effect was properly excluded.
The judgment and order denying a new trial must be affirmed, with costs.