21 Minn. 215 | Minn. | 1875
Upon the former appeal in this action, (18 Minn. 448,) it was determined that by the execution of the second policy, and its transmission from the home office at New York to the company’s agent at St. Paul, the company, defendant, signified its acceptance of the plaintiff’s application for insurance upon the life of her husband, Fridolin Schwartz. If upon the receipt of the policy, and down to the time when the plaintiff tendered the premium and demanded the policy, the agent had no other authority or duty in the matter than simply to deliver the policy on payment of the first premium, then the defendant’s acceptance was conditional upon such payment alone. The tender by the plaintiff on October 25, being legally equivalent to a payment, was a performance of this condition; and thereby a contract of insurance, according to the terms of the policy, was effected between the parties, notwithstanding the refusal of the agent to deliver the policy. But if, by general or special instructions from the company, the agent was not authorized to receive the premium, or deliver the policy, unless the person insured was in good health at the time, then the acceptance signified by the transmission of the policy to the agent, was conditioned upon the state of health of the person insured at the time for delivery of the policy. And as Fridolin Schwartz was dangerously ill, and near his end, at the time the plaintiff tendered the premium and demanded the policy, the agent was justified in his refusal to deliver the one or receive the other, for the condition of the
At the second trial, the company attempted to prove the existence of such instructions, by the parol testimony of Ferdinand Willius, its agent, and of Gustav Willius, his brother. No counter-evidence of any kind was offered by the plaintiff on this point, but the jury found a verdict in her favor. The principal question on this appeal is whether the verdict can be sustained, in the face of the evidence for the defendant. Ferdinand Willius, after stating that he had been the company’s agent, with restricted authority, for ten years, testified on this point as follows : “I did (have instructions) to deliver the policy, only upon payment of the premium, and provided the parties were in good health at the time,- if not in good health, a new examination by a physician must be made ; I am positive I had these instructions from the company; I have always acted under them during all my agency. Gustav is my brother. In 1870, we were in business together, and are still. He knew of my instructions from the company, and I suppose he acted under them.” On cross-examination, he said, “The instructions, I suppose, were in print: they may have been verbal: they may have been in writing. We have had six different sets of instructions of that kind in print. I have been hunting for printed instructions, but cannot find them; must have been verbal. Have had printed instructions so long as I have had the agency. These printed instructions have been changed by other printed instructions, perhaps half a dozen times during the agency; couldn’t say for certain how many times; couldn’t tell when they were last changed; believe I received some new instructions and blanks about four weeks ago ; could not tell when the next one before was made ; some of printed instructions related to the manner and circumstances under which the policies were to be delivered. I have searched among the papers for these printed instructions — searched this morning, and about a week ago.
Gustav Willius testified as follows: “I told her (the plaintiff) I could not deliver the policy to her; that in the meantime I had received information of the sickness of Mr. Schwartz, and that I had no right to deliver the policj’-. I think I stated to her that our instructions were not to deliver the policies in such cases where the parties had been taken sick. (I knew of such instructions from the company.)” On cross-examination, he said : “ I cannot say positively as to those very instructions, we had so many different ones, in writing, printed and verbal. I was not the agent of the company. These instructions were directed to my brother ;” and thereupon the last sentence in his testimony on the direct examination was stricken out, on the plaintiff’s motion.' The direct examination being resumed, he said: “ I knew of printed instructions to the agent, Ferdinand
It is contended that the jury were not at liberty to disregard this testimony, but were bound to find the existence of the instructions alleged ; and we are referred to cases holding that “ when a fact is sworn to by a witness of fair fame, and who is uncontradicted by other testimony, or any circumstances in which he may stand, the jury are not at liberty to disregard his testimony.”, Harding v. Brooks, 5 Pick. 244; Hewton v. Pope, 1 Cowen, 109. This is undoubtedly true, as a rule, admitting however of many qualifications growing out of the nature or subject-matter of the testimony. Thus, in Harding v. Brooks, the court say that “if it relates to declarations or conversations happening some time before the witness is called to testify, and the precise words are important to the point in issue, and the witness, though confident, is not positive in his testimony, the jury are at liberty to refuse such entire credit as may be necessary to satisfy them that the words in question are fully proved.” And in a later case in the same court, the true rule as to the power and duty of the jury in weighing evidence, is thus stated by Bigelow, C. J. “The jury are not obliged to receive evidence which is laid before them, passively, and follow it blindly, because it is not controlled or contradicted by counter-evidence. They are to examine it with care, subject it to the scrutiny of their judgment and experience, and act on
In the charge of the court, the attention of the jury was particularly directed to the question of the existence of the alleged instructions, as the single important issue in the case. Upon this issue, the only evidence was that of the agent and his brother. The jury could not, through negligence or inadvertence, have omitted to consider this evidence, nor is there any reason to believe that they wilfully or wantonly disregarded it. That must be a strong case which will justify an interference by this court, with the exercise, by the jury, of their undoubted right of determining the credibility and weight of evidence. The testimony of the brothers Willius is by no means so clear or positive that the jury might not, in the exercise of a sound discretion, deem it insufficient to prove that the agent, in withholding the policy, acted under the alleged instructions of the company. The witnesses are not agreed, (either with themselves or with each other,) as to whether the instructions, under which it is claimed the agent acted, were printed, written or oral. The testimony of Ferdinand Willius is especially vague and uncertain, amounting to little more than a statement of his impressions and suppositions. Gustav is rather more positive that the instructions were in print. They agree that there were no special instructions for this case ,• that whatever instructions the agent acted under were general instructions. They do not profess to give the tenor of these instructions, but merely the substance. Gustav says they occupied half a page of a printed pamphlet; but his statement of their substance is given in one or two lines.
Aside from these objections to the weight of this testimony, it is highly probable that if such instructions as those in question were given at all, they would, from their importance, be assigned a prominent place in the general printed instructions to agents. Now this case had been tried once before, and the defendant was fully advised that its defence could be successfully maintained only by proof of these in
It is contended that the second policy should have been excluded, for want of proof of the signatures of the defendant’s president and secretary thereto. But the answer, verified by the agent, F. Willius, denies the delivery only, and not the execution, of this policy; nor is there any denial by oath or affidavit of the execution or the signatures. Gen. Stat., ch. 73, § 82; Laws 1867, ch. 64. Moreover, the
The question put to the plaintiff on cross-examination, “Who attended to this business for you?” was properly excluded. It was not a proper cross-examination, for the witness had only testified to matters she had personally attended to ; and it was, so far as we can see, wholly immaterial.
The answer of F. Schwendler to the fifth interrogatory was clearly inadmissible. It purports to be merely his conclusion from facts afterwards to be stated in his deposition.
His answer to the sixth interrogatory was properly excluded. It related in part to the contents of a letter which would itself have been better evidence. Moreover, all this part of the answer ivas immaterial, for the plaintiff’s rights could not be affected by anything done by the company or its agent, after the tender was made.
In regard to the other objections taken to the exclusion of testimony, it is enough to say that iu each case, the error, if any, was afterwards cured by the testimony of the same witness.
The objections to the first instruction given at the plaintiff’s request, and to the refusal of the first, second, and sixth instructions asked by the defendant, were considered and disposed of on the former appeal. 18 Minn. 448.
The fourth, fifth, seventh and eighth instructions requested by defendant, severally assume the existence of the alleged instructions to Willius as a fact proved, and withdraw from the jury the question whether the evidence in the case is sufficient to support this conclusion.
The remainder of the numerous points made by the
Order affirmed.