53 Mich. 238 | Mich. | 1884
Plaintiffs.are minors and children of John Monaghan, deceased. In 1876, John Monaghan being the owner of eighty acres of land, conveyed the north half thereof to his father Patrick Monaghan, but remained in possession and lived upon it with his family until his death, which occurred in the early part of the year 1879. On the 6 thday of January of that year he made his last will, by which, after directing the payment of his debts, he directed his executors to sell whichever forty acres of his land would sell the best, and pay first the mortgages then against his place, and then certain debts which he named. He also stated in his will: “The other forty acres to remain.as a home for my wife and children, unless my wife Catharine should marry; then property to be kept for my children.” He m’ade no disposition of his personal estate if he had any. January 31st, 1880, Patrick Monaghan conveyed the north forty acres to the minor children of John Monaghan, and they with their mother, Kate Monaghan, continued to reside in the house upon this forty acre tract until it was destroyed by fire, in September, 1880.
On August 4th, 1880, Kate Monaghan applied for insurance to the agent of defendant. The application was made in behalf of Kate Monaghan, the mother, and Sarah, Jennie and "Willie Monaghan, minor heirs. To the question, “ What is your title to or interest in the property?” the answer was, “Willed.” The application was made out by the agent from information derived from Mrs. Kate Monaghan. The defendant issued a policy 'by which in consideration of $14.70, it insured Kate Monaghan, Sarah, Jennie and Willie Monaghan, minor heirs, against loss or damage by fire or lightning to the amount of $1650, as follows:
$400 on dwelling-house.
$300 on household furniture therein.
$200 on family provisions and wearing apparel therein..
$275 on barn No. 1.
$350 on hay and grain in barn No. 1.
$ 75 on farming utensils in said barn.
$ 50 on harness therein, wagons and sleighs therein.
$1650, total.
On the 17th day of November, 1880, James Murphy was duly appointed the guardian of the minors, and on the 18th of December following he made out, in behalf of the minors, and forwarded to the company, proofs of loss of the dwelling insured by the policy. In this proof of loss it is stated that Kate-Monaghan, being the mother of said minor heirs, had .an interest in the personal property thereby insured, and the .said minor heirs being the owners of the real estate and -dwelling-house therein insured, and that the building insured belonged to the said minor heirs of John Monaghan, deceased, and that said Kate Monaghan had no interest therein save, possibly, a dower interest or right of possession during their minority, and that she owned the personal property insured, and no other person had any interest in said property. It then states how it was occupied at the time of the fire, when it occurred, the amount of the loss on the dwelling, and that the fire did not originate by any act, design or procurement
The defendant contends that there is no valid contract of insurance between the parties, for the reason that the minors were incapable of entering into such contract; that contracts of insurance must be mutual, and if the defendant could not have enforced payment of the premium,' neither could the company be compelled to perform its contract to indemnify. In the case of New Hampshire Mut. Fire Ins. Co. v. Noyes 32 N. H. 345, it was held that an infant who had insured his stock of goods was not liable to the company on his premium note, as for necessaries, where the infant interposed the plea of infancy; but the contract of insurance was not held void. Many contracts of infants are not void, but voidable merely, in which case infancy is a personal privilege of the infant of which no one can take advantage but the infant himself while living. Contracts which are manifestly for the benefit of the infant are not void, but voidable merely. The contract of insurance is of this class, and although entered into between the defendant and the minors jointly with their mother is binding on the defendant. There was no fraud or concealment practiced upon the defendant with respect to the infancy of the parties it was contracting with ; the policy describes them as minors. This defense is not open to the company.
The circuit judge viewed the contract as one entered into between Kate Monaghan and the defendant for the benefit of herself and children. He instructed the jury that the three children were minors and of such tender years that
In this case there was such privity of contract. The promise was made, by the company directly to Kate Monaghan and the plaintiffs jointly, and no reasons exist why the promisees may not maintain an action upon the policy. The circuit judge rigidly held that the plaintiffs could maintain the action, and it is immaterial that he assigned an erroneous reason therefor. The defendant was in no wise prejudiced thereby.
A juror was called and sworn touching his competency, and upon examination by counsel for plaintiff stated that he
Another juror being examined on oath as to his competency, was asked by defendant’s counsel: “Suppose, in this case, after the evidence is all introduced, you should believe that it was evenly balanced, so that there was as much for the plaintiff as for the defendant, which way would you be inclined to lean — against or in favor of the company?” This was objected to by the plaintiff’s counsel, for the reason that he would probably be guided by the court. Whereupon the court said: “Of course, the party that has affirmation of an issue must produce a preponderance of evidence, and if the evidence was evenly balanced they would be obliged to find against the party that had the affirmative of the issue. I don’t think that the question is proper. I don’t permit the juror to answer it.” The same question was put to another juror, and the court told the juror that he need not answer it. These questions were put to the jurors by counsel for defendant for the purpose of determining what peremptory challenges he would avail himself of. The question was well calculated to call from the juror the bias of his mind toward the party, and to detect whether he entertained any prejudice respecting him.
Wherever there is an existing bias or prejudice it should disqualify, for prejudice is a state of mind which, in the eye
It is assigned as error that the court, against defendant’s objections, admitted evidence tending to show the house was on land deeded to the plaintiffs, for the reason that their title to the property is averred to be by will, and proof of title by
The same remarks apply to the objection that the application stated that the title of the insured was by will, -when the proof was that it was by deed.
The court committed no error in not permitting the witness Wrege to be asked what. Mrs. Monaghan’s mother said to one of the plaintiffs in the barn, while the witness was searching for articles concealed therein. The witness had been permitted to state what the plaintiff said on that occasion, and the record does not disclose how it could be material to show what Mrs. Monaghan’s mother said.
Mrs. Monaghan had sworn in her affidavit to the destruction of the sewing-machine by the fire, and defendant proved by a witness, who was a neighbor of Mrs. Monaghan, that she was at the fire and saw the sewing-machine standing on the ground near where the fire was burning, and the next morning Mrs. Monaghan’s hired man brought the sewing-machine to witness’ house and left it there, and she was asked: “ What did he say when he brought it there ? ” Counsel for plaintiffs objected to it as incompetent, irrelevant and immaterial. The record proceeds:
By the Court. It would not be proper if she were on trial for arson.
Defendant's Counsel. She is not on trial for arson. ,
*248 The Court. The course of testimony is the same.
Defendants Counsel. I propose to show what the hired man said when he brought tlie sewing-machine to the house.
The court refused to allow the question to be put or answered.
To the remarks of the court above stated, and to the ruling of the court, defendant duly excepted. The examination of the witness then proceeded, and the following occurred:
Question. After the machine came to your house did you see Mrs. Monaghan? ■
Answer. I don’t remember seeing her.
Q. Let me see if I can refresh your recollection. Did you have any conversation with her after the fire, in which she told you not to say anything about the- machine being at your mother’s?
A. No, sir.
Q. Did you have any such conversation with any one ? (Objected to as incompetent and immaterial by plaintiff’s counsel.)
By the Court. The plea charges her with the burning, as I understand it. The proof is the same as if an information was filed against her for burning it down. In that ease the statements made by any other persons are not evidence.
Defendants Counsel. If they were her agents ?
The Court. That must first be shown.
Defendants Counsel. I think we have shown it.
By the Court. The court holds that there is not sufficient testimony to show that the hired man was the agent of Kate Monaghan at the time of the fire; therefore the statements are immaterial.
To which ruling, and to the remarks of the court, defendant, by its counsel, did then and there except.
At this stage of the case the defendant had introduced evidence ‘tending to prove that the fire was first reported to defendant’s agent by the hired man;-that Mrs. Monaghan told the agent that the hired man first discovered the fire ; that of the contents of the house all that was saved was a cooking stove, clock, some chairs and a trunk with some clothing in it; that a sewing machine that cost $85 was burned, and all tlie other articles insured, with the above exceptions; that afterwards she and the hired man made affidavits that
The witness should have been permitted to state what the hired man said when he left the machine. It accompanied and was part of the act of the man in leaving the machine, and was relevant upon the question of false swearing by the hired man. The other question, as to her having had a conversation with any one, was preliminary in character, but, without some proposition showing the materiality of the proposed proof, was rightly excluded.
We do not think that the remarks of the court relative to the course of the proof being the same as if Mrs. Monaghan was on trial for arson, are subject to the exception taken by defendant. The court evidently did not refer to the amount of proof required to sustain the plea., but that it was substantially the same line of proof required as if she was being tried on the charge of arson. If an inference could be drawn from the language used that might, perhaps, have led
Defendant also gave evidence tending to prove that Mrs. Monaghan caused the most of the. furniture and other articles in the house to be removed therefrom and concealed in the barn and elsewhere, before the fire; that part of the doors and windows belonging to the house were taken off the house and concealed before the fire; and gave evidence tending to prove that the affidavits Mrs. Monaghan and hired man made were false, known to be so by them, and that they were made to defraud the defendant; and that the house was purposely burned by Mrs. Monaghan and the hired man, Rory, to defraud the defendant.
Defendant further gave evidence tending to prove that after its agents had found the property concealed, as before stated, Mr. Kinney told Mrs. Monaghan of what they had found; charged her with burning the house; that she admitted it; that she was then told the company would not pay her anything, and asked to sign a release, which she did, (said release was received in evidence,) and she was told to bring her policy to the office and surrender it; that subsequently she had her hired man come to the defendant’s office in East Saginaw and deliver the policy to Mr. Kinney. Defendant further gave evidence tending to prove that Mrs. Monaghan told Kinney that she was guardian for the children.
It was conceded by plaintiff’s counsel that the sewing machine the hired man took to Mrs. Hemmeter’s after the fire was the same sewing machine named in the affidavit of Mrs. Monaghan.
“ First Interrogatory. Did the plaintiffs, or any of them, in person apply for and obtain the insurance policy in evidence ?
Answer. No.
Second Interrogatory. At the time the policy in evidence was issued were each of the plaintiffs under the age of 21 years?
Answer. Y es.
Third Interrogatory. What was the age, at the time the policy was issued, of Willie, of Sarah, of Jennie ?
Answer. Sarah, 4; Willie, 7; Jennie, 9.
Fourth Interrogatory. When Kate Monaghan, now Mrs. McNamara, applied for the insurance, did she tell Mr. Moffit that she and the children named in the policy owned the property' insured?
Answer. Yes.
Tenth Interrogatory. Did Kate Monaghan, now Mrs. McNamara, purposely cause or procure the house to be burned for the purpose of defrauding the defendant ?
Answer. No.”
All the other questions the court held to be immaterial.
The following are among the questions rejected:
14. Did Kate Monaghan, now Mrs. McNamara, for the purpose of getting paid for property she knew had not been burned, falsely represent to the agent of defendant, Mr. Kinney, that such property was destroyed by the fire which destroyed the house ?
15. Did Kate Monaghan, now Mrs. McNamara, swear to ' the truth-of the facts stated in the paper in evidence, purporting to be her affidavit, sworn to before D. G-. Peck, on the second day of October, 1880 ?
16. Did not Kate Monaghan, now Mrs. McNamara, know at the time she made the affidavit, that what she swore to therein concerning the loss of the articles named therein was false ?
*252 17. - Did not Kate Monaghan, now Mrs. McNamara, know that she was swearing falsely in stating that the household furniture and other articles named in her affidavit had been burned ?
18. .Did she not know she was swearing falsely in stating that the policy was burned?
19. Did not Kate Monaghan make the affidavit for the purpose of cheating and defrauding the defendant?
These questions were material and proper if the plaintiffs are affected by the wrongful acts of Mrs.. Monaghan after the fire. And this depends again upon the question whether the contract is divisible.
When the insurance was obtained nothing was said as to the precise nature of the interest, whether separate or joint, in the property insured. Nor was it necessary. The policy was good for all, whether their interests were joint or several. Castner v. Farmers’ Mut. Fire Ins. Co. 46 Mich. 18. But in this case the premium was not ■ apportioned, but was paid as a whole as a consideration of the whole insurance upon the property. We can see good reasons in this case for holding the contract for insurance to be joint and not several, which might, and probably did, influence the defendant in entering into it. Mrs. Monaghan was the only adult party among the insured, and the one upon whom the defendant would rely to make the proper proofs of loss in case of fire; and the only one it could hold to perform the conditions of the policy. We are clearly of opinion that no action could be brought by any of the insured, less than the whole, to recover a loss under this policy, unless in a case where the interests of one had been assigned to the other joint contractors. And if the right of action has become barred as to one of the joint contractors, it has to all of them. It follows that the plaintiffs, by obtaining an assignment of Mrs. Monaghan’s claim and interest in the policy, can stand in no better position than they would be in had the action been brought in the names of all the joint contractors; and whatever would be a defense were she one of the plaintiffs, is equally available when suit is brought by her assignees. Any attempt on her part to defraud the company by not complying with the con
The questions above mentioned were material and proper under the view we have taken of this ease. The circuit judge instructed the jury that the contract of insurance was divisible, and if they found that the plaintiffs were the sole, unconditional owners of the forty acres upon which the house stood, the promise of the company was to indemnify them for their several interests in it; and if Mrs. Monaghan did not set fire to the building, or cause it to be done, but, after this liability became to a certain extent fixed upon the company by the burning of the building, she conceived the idea that she could obtain more for the furniture, which was her property, that was insured, by claiming that the articles saved were in fact burned, that act on her part alone, or anything she may have done with regard to the furniture, would not affect the right of the children to receive the amount due to them on account of the loss by fire to the building. This was erroneous; and the error consists in holding that the contract was divisible, and the rights of the parties insured became divided by the fire, although it may have been caused by the act of Mrs. Monaghan. Besides, it was inconsistent with a previous portion of his instructions, wherein he charged the jury that the contract of insurance was subject to certain conditions, and that it was necessary for the parties to observe and keep all those conditions while the risk was running, and that it was incumbent on Mrs. Monaghan to have .seen upon her part that they were kept and performed, and therefo're it was very material in this case whether she, after obtaining the insurance, set fire to the building or procured it to be burned with intent to defraud the insurance company, and that, if she did, the plaintiffs could not recover. Why was she bound to see that all the conditions of the contract were kept before the loss, and not afterwards ? Why, if she attempted a fraud upon the company by setting or causing the building insured to be set on fire, could the plaintiffs not recover, and yet
The court, when instructing the jury with reference to the testimony introduced by the defendant in support of the defense that Mrs. Monaghan caused the building to be burned, said:
“ In determining whether she caused it to be set on fire or not, I desire to remark to the jury that the charge, of course, is a very serious one. It charges her with a crime. It is a crime, under our statute, even if the buildings were her own ; and the presumption of the law is that all persons are innocent of crime, until it is established by competent proof. That presumption of innocence attends Mrs. Monaghan in this case the same as it would in a criminal case — -the same as if she were on trial for an offense. In a civil suit,, however, where it is a question of dollars and cents, it is not necessary that the defendant who makes this charge should prove the case beyond a reasonable doubt. That is not necessary. That is necessary in a criminal case, but in a civil suit it is not necessary. The burden of the pi’oof, however, is upon the defendant who makes the charge, and it is necessary that there should be a preponderance of proof to establish the truth of the charge satisfactorily, to our minds. The charge is a serious one. You ought to scrutinize the evidence in support of it closely — more so than if it were a mere trifling charge. Perhaps you ought to be well satisfied of the truth of it, and you ought also to bear in mind that the charge is made as a defense to a claim against the defendant, and that the burden of proof is on them.”
The judgment of the circuit court is reversed and a new trial ordered.