18 Kan. 300 | Kan. | 1877
The opinion of the court was delivered by
This action concerned litigation of the most deplorable character, and comprised transactions so disreputable that one could wish they had never occurred. The dishonest insurance agent, who figured in the proceedings in despoiling a woman of the greater part of $2,000 due her on an insurance-policy on the life of her dead husband, deserves lasting disgrace.
The case arose out of the following circumstances : On the 17th of September 1872, the defendant in error, then the wife of George Roberts, applied to the New York Life Insurance Company for a policy of $2,000 on the life of her husband. The first semi-annual premium on the policy was paid with a note for $37.96, and the agent of the company .executed therefor a receipt by which the policy was to issue within fifteen days, provided the application was approved at the home office. On the 23d of the same month, the insurance company issued to said defendant in error the policy applied for, and transmitted the same from the home office to their agent, Reuben Partridge, at Leavenworth, and the same was received by the agent a few days after the 23d, ánd during the
The insurance company object to the judgment, and claim that it should be reversed, and the company released from all liability, because, first, there was no proof that the agent of the company, who took the application for the policy of insurance, and issued the receipt to George Roberts for the note received in payment of the first premium, had power to make a contract to insure on credit, and the giving the note was no payment of any premium; second, that the findings of the court were against the evidence, and do not sustain the judgment; third, that the insurance company was not responsible for any of the fraudulent recommendations of its agent Par
As to the first objection, it is sufficient to say that the application was made to and accepted by an authorized agent of the company. The note was given and accepted as payment. An agent of an insurance company whose business it is to solicit applications for insurance, and receive the first premiums, has the right to waive the condition requiring the payment in money, and to accept the promissory note of the applicant, or of a third party in lieu thereof. May on Ins. 345, 346; Mississippi Valley Life Ins. Co. v. Neyland, 9 Bush. (Ky.) 430, and authorities there cited. In this case however, there can be no question raised as to the authority of the agent to give the receipt, as the company issued the policy, sent it to their general agent Partridge, and when proofs of the death of Roberts were received, the company calculated the amount due on the policy after deducting the amount of the second semi-annual premium (stipulated for in the policy,) and sent the sum in a draft to their agent, payable to the order of the defendant in error, to whom the policy was delivered to be receipted and satisfied. The company thus fully ratified the action of its agent in accepting the note and executing the receipt for the policy, and in treating the policy as valid, and as if actually delivered before the death of the assured.
In regard to the second objection, after a careful perusal of all the evidence, we do not see that the district court could have intelligently arrived at any different conclusions of fact than those stated in the findings. The company never resisted the legality of the policy, promptly adjusted the demand, and Partridge had no valid reason to represent the policy void. The attorney recommended was an intimate friend of the agent — so much so that Partridge himself stated in his evidence that he frequently loaned him money, and when he had any legal business, English generally attended to it. Partridge in his communications to the company treated the policy as a valid one, and had no reason to think otherwise.
“About a week áfter the death of my husband, Mr. Roberts, I waited on Mr. Partridge, the old man, at his office in Laing’s building. I had never seen him, and I introduced myself to him. He said he was glad I had called; that he had often thought about me. Finally I asked him if he thought the company would pay the policy. He said no, he did not think they would. He said my claim was not a legal one. He said he would write to the company and see what they would do. He said in a week or so I could call at his office. A week or ten days after I called at his office, and he said he had not heard from the company. I said to him, ‘since I have been here I have thought that I had better write to the company.’ He said it was not necessary for me to write to the company; that he was here representing the company, and he said if I wrote to the company the letter would be sent back to him, and it would not benefit me any whatever. He-said, ‘I assure you I will do what I can for you. Since I saw you I have made a thorough investigation, and I find that your husband was a popular man, and a highly-respected citizen. If I had known it, I could have withheld the policy, and paid the premium for you; but I was true to the company, and sent it to New York.’ He said if I would call any time I was in town he might hear from the company. When he said it was no use for me to write to the company myself, I never gave it any more consideration. I called in a week or so, and he said he had heard from the company, and they refused to pay me; that my claim was not a legal one. He said that if Mr. Roberts-*314 had only paid the small amount of twenty-five cents, it would have been legal, but as he had not it was not, and I had no claim on the company. I never called at Mr. Partridge’s office after that. About two months, or probably a little more, after I was in Mr. Partridge’s office, Mr. Partridge called on me at the Fort. He came up he said to see if I had taken any steps in that matter towards trying to get my money from the company. I said I had not. He said if I intended to take any steps in the matter I had better do so soon. He said after a certain length of time I could not do so. He did not say how long that time was. He asked me if there was any person I was acquainted with, any lawyer I wished to consult about it. I said, none in particular, that I knew no lawyers. He said such being the case, he would recommend George H. English; that he was an honest, trustworthy man, and could be relied on. I asked where his office was, and he told me. I said, if it would not be too much trouble I wished he would speak to Mr. English for me. He said he would. He then went away.
“ In about a week or so he came again, and said he had not seen Mr. English yet, but said that any time I would come down, if I would call at his office, he would take me to Mr. English’s office and introduce me to him. I said I would, and he went away. In'about half an hour after, he came back and said that as he was going home he had met Mr. English on the road, and he had come to the house with him. He said, ‘I want you to speak to Mr. English yourself; I will go out and ride round the fort in his buggy, and you can speak to him on the subject.’ He said, ‘I want you to promise me before I go not to say anything to Mr. English, that I have spoken to you about him. Speak to him as though speaking your own mind. Another thing I want you-to promise-me: whatever the company gives you, you will have to acknowledge the full amount of it; if you don’t, they will not pay you anything; you will have to acknowledge the receipt of the full amount, and if any friend asks you what they gave you, don’t tell them; tell them that the company satisfied you, but don’t say in what way, but you will have to acknowledge the full amount, whatever you get.’ I said, if that was a fact, I would have to acknowledge a lie, if I acknowledged the receipt of $2,000, and did not get it. He smiled, and said, ‘we have to do many things; half a loaf is better than no bread.’ He then went out, and Mr. English came in. I did not know what to say to him, but*315 finally I said, ‘I suppose Mr. Partridge has mentioned my case to you, that I wished to see you.’ He said, yes, he knew something of it; that Mr. Partridge and him were speaking of it as they were coming up together from the city to the fort. I said if that was the case, it was not necessary for me to say anything more. He said no. I asked him if he was willing to take the case. He said ■ yes, but it was seldom he ever made anything out of such cases. He wanted to know how much I wished to make the claim. I said I thought I was entitled to the1 whole amount. He said I was not, because no money was paid, as Mr. Partridge said. I asked him if he thought the company would be willing to pay me half. He said "he thought not, he did not know but they would give me $500. He said he would try his best to have them, give me $1,000. He said if they gave me $1,000, he would keep $200 of it for his fees; if they gave me only $500, he would keep only $100 for his fees. A few days after that he came to my house and said the company would give me $500, but I would have to acknowledge the receipt of the full amount, otherwise they would not give me anything; that they were giving me that as a gift; that I was not entitled to anything. Of course I signed the papers, receipted for the full amount, and he paid me the $500 down. While I was signing my name to the receipt for the $2,000, 1 said to Mr. English I thought it was a strange way to transact business; I was signing my name to a receipt for $2,000, and getting only $500. He said he knew, but business was business. That was all I said to Mr. English.
“Ques — How did you come to sign the receipt on the back of the policy? Was it for the reasons you have stated? Ans.-Certainly; they said they would not give me anything unless I acknowledged the full amount.
u§. — When you signed it, it was under the representation, as you say, that the company would pay you $500? Ans.-He said the company would not give me any more than $500; that they were under no obligations to give me anything, because the claim was not a legal one. Mr. Partridge said all the time that the claim was not a legal claim.
Ҥ.-Had Mr. English told you the same thing? Ans.-Mr. English told me, and Mr. Partridge also.
Ҥ.-State whether it was by reason of your relying on the statements of Partridge and English, that you signed these , papers? Ans.-Certainly, I relied on what Mr. Partridge said. I supposed he spoke the truth. He said the claim*316 was not a legal one, and it would be better for me to employ an agent.
“§'.-Mr. English paid you $500? Mms.-Yes, sir.”
Mr. English admitted that he only paid defendant in error $500; and all the incidents of the transaction fully supported the statements of Mrs. McGowan. That English and Partridge would deny any collusion between themselves in the matter, is to have been expected in view of their conduct. Parties guilty of such practices as herein set forth, are not accustomed usually to confess as to their own bad acts. “Like all other facts, fraud may be proved by circumstances. We should seldom, if ever, hope to prove, fraud by the admissions of a party; nor should we expect to find direct and positive evidence of the fact. Whatever circumstances, when proven, convince the mind that the fraud charged has been perpetrated, is all that is required. While fraud cannot be established by circumstances that merely raise a suspicion, yet, when they are so strong as to produce conviction of the truth of the charge, although there may remain some doubt, then it is fraud.” Bryant v. Simoneau, 51 Ill. 324. Tested by this rule, the findings are strongly sustained. But it is not necessary to go thus far. The findings of a trial court are conclusive, if there is any evidence to sustain them; and we cannot disturb them, where the findings are upon conflicting evidence. We hold therefore, that the findings of the court upon the questions of fact cannot be reversed by this court, as there was testimony clearly tending to establish the facts found. Hobson v. Ogden’s Exeoutors, 16 Kas. 388.
In conclusion, we are called to pass upon the third objection presented, and which has been so ably and forcibly urged in the argument of the learned counsel for plaintiff in error. This is really the main question in the case: Is the insurance company liable under the circumstances for the balance of the draft, that is, for the $1,957.04 originally due on the policy, less the $500 paid to defendant in error? or, must the owner of the policy be remitted for her remedy to a worthless insurance agent, and an insolvent attorney? If
In the case at bar, Partridge was the general agent of the insurance company. He had charge of the business in two states, and several territories. He collected money for premiums, solicited insurance, by his own efforts, and through sub-agents, transmitted the premiums to the company in New York city, appointed sub-agents, kept a record of the
We do not think that the other exceptions taken in the proceedings demand any'consideration, and hence, upon well-settled principles, and the strongest equity, we hold that the defendant in error can recover. The judgment must therefore be affirmed.