36 Conn. 503 | Conn. | 1870
The sole question presented by this record is, whether the court below erred in holding the certificate of renewal primd faoié evidence of payment of the premium.
It must be conceded that the certificate contains the usual operative words to constitute a renewal, and that, if they were not accompanied by any qualifying condition, they would authorize the presumption that all acts required of the policy holder to entitle him to an extension, including the payment of the premium, had been performed. The real question therefore is, whether there is anything in the conditions which accompany the renewal clause that rebut that presumption. I do not think there is.
The first condition is that the renewal clause of the certificate shall not be operative until the premium is paid. To this, under the circumstances of the case, no importance should be attached. It cannot rebut the presumption.
Although Elizabeth Norton was the payee named in the policy, the notice and the undisputed evidence show that it was in substance and effect a contract between Seth P. Norton and the defendants. It was the common case of a husband insuring his life in the name of his wife to make provision for his family, and must have been so understood by the company. That condition therefore should not, as I think, be permitted to operate to rebut the presumption of payment arising from the renewal clause.
The remaining condition is that the certificate should be countersigned by Seth P. Norton, as agent.
It seems perfectly obvious that such countersigning could not have been in the contemplation of the parties. In relation to it Norton was, and must have been understood to be, a principal and not an agent. As he was to pay the premiums and was to retain the certificate, it was of no possible importance to either party that he should sign it. The evidence shows that he was not the agent of the plaintiff in the transaction. Although the policy was in her name she was a mere payee, and the company did not expect him to collect the money of his wife, as their agent, and countersign and leave
We have been referred to a manuscript opinion in the case of Badger v. The American Popular Life Insurance Company. In that case the Supreme Judicial Court of Massachusetts decided that a policy for the life of a local agent, sent to him, containing a condition that the policy should not be valid till countersigned by him, must be so countersigned. The facts of the case do not appear, and the opinion of the court is very brief. The court held- that the insurance company had a right to insert the condition, and the insured was bound to comply with it, and that they would not inquire into the motives of either'. It is obvious that that learned court was satisfied, from the evidence or otherwise, that the condition was intentionally inserted. Under the circumstances of this case we are not so satisfied. Looking to the real character of the contract it was a senseless condition, and we think that it was not contemplated by the parties that it should be an operative one.
There is another reason why the decision referred to ■ is not applicable. The court in that case say that there "was no evidence “tending to prove a waiver of the condition,” and the clear implication is that, if there had been, the decision would have been different. In this case there is evidence tending to prove a waiver. The policy was of a peculiar character, and had a market value of about $800, because by its terms it could be surrendered to the company and that sum obtained from them for it. There was a like certifi
In this opinion Carpenter, J., concurred.
In this case the court charged the jury that the certificate of the renewal of the policy, dated June 20th, 1867, was, under the circumstances of the case, primd .faeié evidence that the premium on the policy for that year had been paid; although the certificate declares, in express terms, that it shall not be valid, or in any manner binding on the company, until the premium, interest, and assessment are paid, as per margin, and the receipt countersigned by S. P. Norton. The margin referred to contains merely a statement of Norton’s account with the company concerning the policy for that year and the balance due for the premium.
It seems to me that the certificate of renewal, instead of being primd facie evidence that the premium was paid, shows manifestly the contrary. It bears evidence on its face that when the company sent the certificate to Norton, no money was received to apply on the premium for that year. Its language is, “ This certificate receipt shall not be valid, or in any manner binding on this company until the premium is paid.”
And further, the blank receipt for the premium in the margin of the certificate still remains in blank. No one could execute it but the company, for it is manifest Norton was no agent of theirs to collect the premium of himself. He could not give a receipt for his own money and bind the company by the transaction.
What ground then is there for claiming that the certificate bears upon its face primá facié evidence that the premium was paid. What circumstance is there, which can legitimately be taken into consideration in connection with the certificate, that shows such fact ? Written instruments may be read in the light of surrounding circumstances when they are ambiguous, but not otherwise. This is familiar law. 1 Swift Dig., 180. What ambiguity is there in the certificate regarding the payment of the premium ? It is entirely silent on the subject. It says nothing whatsoever, ambiguous or otherwise, that indicates that the premium had been paid.
But it is said that a similar certificate was sent to Norton the year before, and sending him the one in question conduces to show that the premium of the preceding year had been paid, and this establishes the mode of dealing between the parties. If the mode of dealing can be established by one transaction, it was a fact for the consideration of the jury upon the question whether payment of the premium for the year 1867 had been made, and has nothing to do with the question of law involved in the charge of the court
It is further claimed that manifest justice has been done in the case, and that therefore a new trial should not be advised, although the court may have erred in its charge to the jury. But how can this be true, when the charge of the court substantially deprived the defendants of a trial by the jury of the questions of fact now relied upon by the plaintiff to establish this claim ?
The motion shows that the only question in dispute on the trial was whether the premium had been paid. The plaintiff offered the certificate in evidence to prove the fact, and the defendants, believing that the plaintiff had failed to make out her case, offered no evidence on the subject. In this state of the case the court charged the jury that, under the circumstances, the certificate was prima facié evidence that the premium had been paid. This was telling' them substantially to return a verdict for the plaintiff.
Again, if a new trial can he refused in this case on the ground that justice has been done, a similar course might he taken in every case of error; and this court would be required, in motions for a new trial, to review all the questions of fact involved in the trial of the cause in the court below. This would be contrary to all precedent hitherto established, and would require that all the evidence in such cases, should he certified to this court; for without the evidence before us we cannot intelligently say, as we cannot here, that justice has been done.
I think a new trial should be advised.
In this opinion Loomis, J., concurred.