22 Barb. 9 | N.Y. Sup. Ct. | 1854
Lead Opinion
I endeavored to bring to the trial of this cause the utmost care. The actors were all foreigners, Germans on the one side and Englishmen bn the other, and for any thing that appeared by the evidence, of equal respectability and entitled to an equal measure of consideration at the hands of the courts. Through the probably careless discharge of duty by their agent, and his eagerness to obtain risks, the defendants were involved in a litigation for a large sum. The principal defense set up in the pleadings was, that the policy was obtained by fraud. The complaint averred the-issuing, of the policy, the payment of the premium, and the death of Schumacher, upon whose life the insurance was effected, none of which averments were denied by the answer. The answer alleged as new matter, that upon the application to insure, Schumacher was represented as a merchant, a partner with Valton and Martin in business, and a man of large means, which representations were untrue and avoided the policy ; and that the policy was obtained by fraud, and with the fraudulent intent of Martin and Valton, with or without the concurrence of Schumacher, of soon thereafter secreting or otherwise disposing of Schumacher, and making claim under their pretended articles of partnership, on the
It is admitted that upon the issues made by the pleadings, and indeed on the whole case, the questions of fact were properly submitted to the jury; and they have found against the defendants. I anxiously desired on the trial that right only should prevail, and I am still desirous if any error in law has been committed by me, to the prejudice or injury of the defendants, that a new trial should be aw'arded. But I frankly confess that I am not willing or desirous, more in this instance than any other, that the parties should be allowed to present the case to another jury, for the reason only, that mystery, as my brother Harris expresses it, “ still seems to envelop some of its principal features,” or that a shadowy, undefined suspicion of wrong still attaches to it.
It is the opinion of one of the members of the court, that no error was committed in the admission or rejection of evidence, or in the charge or refusal to charge as requested. Another has come to the conclusion that the deposition of Oltman should have been suppressed; that the defendants should have been permitted to prove his declarations made to their agent, as to the circumstances attending the death of Schumacher; and that it was erroneous, under the evidence in the case, to refuse to charge, that if the jury found that Martin or Valton, or either of them, procured or paid for the policy, for their own benefit, though with the assent of Schumacher, it was void, as being a wager policy. The first two objections were but feebly urged on the trial, and the last was not thought of, as being in the ease, until after the jury had been charged, Indeed, had the
The case states that upon the deposition of Oltman taken on commission, being offered in evidence, the defendants objected, on the ground that two cross-interrogatories, the first and the ninth, were unanswered in part: and after the deposition had been received and read the same objection was renewed, and exception taken. If this meant any thing definite, it was that the court was asked to suppress the entire deposition on the ground of a partial failure to answer what the defendants’ counsel termed two cross-interrogatories. That which is called the first cross-interrogatory embraced nineteen questions; the ninth, five questions. Which of these numerous questions Oltman had foiled to answer was not pointed out: but the court was left to ascertain from an examination of the interrogatories, and indeed the entire deposition, whether the witness had foiled to tell the whole truth. In what respect the interrogatories were unanswered was not specifically stated. Under these circumstances, and with such an indefinite objection, I should have deemed it an unjustifiable exercise of discretion to have suppressed the deposition. Suppose Oltman had been upon the stand as a witness, and nineteen distinct inquiries had been put to him at one time, and he had attempted to answer all of them: but the defendants’ counsel supposing he had foiled in part, moved to strike out the whole of his testimony, without stating wherein he had foiled: would any judge, under such circumstances, have stricken it out ? I think not. And if not in such case, clearly it could not be justified when the parties join in a commission to examine a witness, and the defendants lie by until the "trial, and
The ninth cross-interrogatory required Oltman to answer as to the business in which, after May 1850, Martin and Valton were engaged, of whom they bought, and to whom they sold, to state the names of both, and what they bought and sold. Oltman had answered, to previous interrogatories, that after May, 1850, the firm of Valton, Martin & Co. were engaged in the grocery and commission business in Albany; that in July, 1850, he first went into their employ .as porter, remaining until the latter part of August; that this was the first he knew of the firm, that he was then in New York, until the fore part of September, and until after the death of Schumacher, when he returned to Albany, and remained in the employment of the firm as porter until March, 1851. He was then inquired of as to the business Martin & Valton were engaged in after May, 1850, and required not only to describe this, but to name the persons of whom they bought, and to whom they sold. His answer was that he knew nothing of the business of the firm
I cannot bring my mind to the conclusion that there was any error in refusing to suppress the deposition, that should constrain us to grant a new trial.
2. The agent of the defendants at Albany, and through whom the policy was procured, was put upon the stand as a ■ witness for the defendants, and among other things, testified that on the 7th of September, 1850, he heard of Schumacher’s death; that Martin told him there was a person at the store that could tell him all about" it; that he accompanied Martin to the store and saw Oltman, and asked him how the death occurred. The defendants then offered to show, by the witness, what Oltman said, in the presence of Martin, about the death of Schumacher. The plaintiffs objected to the evidence of Oltman’s declarations, and the objection was sustained. Upon what principle they were entitled to the declarations of Oltman, or to the details of a conversation between their agent and Oltman, the plaintiffs did not inform the court on the trial; and so little confidence had they in the exception, they did not even urge it as a point to be considered on this motion. They had neither attempted nor laid any foundation for im
3. The defendants’ counsel submitted eleven distinct propositions, with the request to charge each as proposed. The court refused to charge upon all the propositions in the form presented, except in respect to the first proposition. The fourth request was, that if the jury should find that Martin and Valton, or either of them, procured or paid for this policy, for their or either of their benefit, though with the assent of Schumacher, then the policy was void, as being a wager policy. This the judge declined to charge, and I think he might safely have put his refusal upon the ground that there was no question of the kind in the case. The answer of the defendants did not allege or set up any matter or thing, showing the policy to have been void under the statute against wagers; nor was it pretended that Martin and Valton, or either of them, procured or paid for the policy, for their benefit, with the assent of Schumacher; even if the proof of those facts would have made it a gambling or wagering policy within the statute. There was no proof except a feeble effort of the defendants’ agent, evidently thought of long after the transaction occurred, to give it such a coloring, that Martin or Valton, or either of them, were the persons really effecting the insurance, and not Suhumacher, or that Schumacher was put forward by Martin as the mere instrument through whom the statute against wagers might be evaded. Even this effort conflicted with all the other evidence in the case, written or unwritten, with the acts of the defendants, and even of the agent himself. There was no sufficient evidence to warrant the jury in finding that either Martin or Valton, with the assent of Schumacher, procured the policy for the exclusive benefit of either. Indeed, the evidence showed a state of facts directly hostile to this theory. Schumacher was the person with whom the defendants contracted, and the legal presumption is that the policy was for his benefit, and not for that of any other person. He had an insurable interest in his own life. Ho use by him of the policy, subsequent to the contract of insurance, could convert it into a wager policy. If valid in
It is to be observed, that in the case at bar the fact was assumed by the defendants’ counsel, that Martín & Yalton had no insurable interest in the life of Schumacher, (an assumption not sustained by the evidence,) and assuming this, the judge was asked to instruct the jury that if they should find that they, or either of them procured or paid for this policy, (that is, the one on Schumacher’s life, and which the evidence of the defendants showed that he had applied for and obtained,) for their or either of their benefit, though with the assent of Schumacher, then the policy was void as being a wager-policy. The request was, substantially, that the judge should charge the jury that either the procurement of the policy by Martin & Yalton, for their benefit, or the payment of the premium by them, with the assent of Schumacher, constituted the policy which had been applied for by and issued to the latter, a wager policy, and rendered it void. In the face of the defendants’ own evidence that Schumacher applied in writing for the policy, that
The policy issued to Schumacher, and upon which the action was brought, was in no legal sense a wager policy. Nor, had the jury found the facts that it was issued to Schumacher by the procurement of Martin or Valton, for their exclusive benefit, or that the premiums were paid by them, would it have been invalid. Besides, there was no competent evidence in the case to sustain such a finding, or to justify the court in submitting the question of an attempt to evade the law against wagers. No such issue was made by the pleadings, and none such was tried. It is quite probable that Schumacher, at the time of effecting the insurance, was possessed of but little means. It required but little, as the quarterly premium was less than seventy dollars. It may be • that Martin urged the making of the contract, and aided in its successful completion; but after all, the insurance was effected by Schumacher, not as the agent of Valton & Martin, and for their exclusive benefit, but for the benefit, in part at least, of the party whose life was insured. It is not very difficult, from the evidence, to discover the motive which induced the making of the contract. Martin, Valton and Schumacher proposed to form a partnership in the business of liquor dealers. The two former alone possessed capital to any extent; but Schumacher’s services were required, as he was skillful in what is termed mixing liquors. He, though advancing no capital, was to share equally in the profits, from the beginning. In lieu of capital, and as a security or indemnity to his copartners, an insurance was effected on his life; and with the understanding that if he should die. unmarried, during the continuance of the copartnership, the benefit of the policy should go to the survivors of the firm. Martin and Valton were men with families ; Schumacher was single. If he married, his co-partners were to take no benefit from the insurance. He was young and healthy ; and as the defendants’ examining physician certified, “ a good risk,” and one which he recommended them to accept. The defendants’ agent was eager to obtain the risk,
With an anxious desire to correct any error of law that I may have committed on the previous trial, I have not been able to persuade myself that those suggested by my brother Harris, were errors. I shall, therefore, vote for denying a new trial.
Watson, J., concurred.
Dissenting Opinion
This case is characterized by a degree of novelty far beyond any thing of the kind with which I have before met. Some of the circumstances are so strange, indeed, that they demand the most active scrutiny. The prin
Whether any of the parties had any money when the business was commenced at Albany, does not appear. The articles of copartnership do not require either party to furnish any capital, and there is no evidence that any was in fact contributed. Mr. Tracy, of whom they hired their store, at a rent of $250, and whose place of business was opposite theirs, says they appeared to be doing a limited business. He had dealings with them to the amount of five or six hundred dollars, selling them goods upon a credit of three months. Mr. Lacy, whose office was also opposite the store, had his attention frequently directed to it, and saw that little or nothing was going on there. He saw a few barrels lying there, and occasionally saw Schumacher go out with demijohns and baskets of liquor. That three partners, engaged in such a business, should require the services of a man like Oltman, as a porter, especially when Schumacher, according to the evidence, continued, as well afterwards as before, to act as the porter of the establishment, is a little remarkable. Valton spent much of his time in New York, and the only business in which Martin is shown to have been engaged was that of obtaining and securing for the benefit of himself and Valton this large policy upon the life of Schumacher.
When Schumacher finally left Albany, or under what circumstances he left, the case does not disclose. Bussing speaks of having seen him at his store several times—he mentions three or four occasions—between the latter part of May and the middle of August. That he was destitute of money appears from the fact that when, on the 23d of August, he went to the Shakespeare Hotel to board, he proposed to pay for his board in advance, as he had no baggage, and said he would fetch the money from his boss, referring to Valton. That he had been staying in New York before he went to the Shakespeare Hotel, appears
Again; it is a little singular that when Yalton and Schumacher were both in Hew York, Oltman too should take occasion to go, and to remain there for several days. He says he went to look for a, friend that he heard was to be there. Whether that friend was Schumacher does not appear. At any rate, he was so fortunate as to find him standing upon the wharf, upon his arrival, and we hear nothing more of any other friend. And then, the incidents connected with the drowning, as they are related by Oltman, are marvellously strange. The very proposition of Schumacher to go a fishing, at such a time, and in such a place, and under such circumstances, is strange. The account given by Oltman of the manner in which the accident occurred, is strange. The conduct of Oltman, afterwards, is strange. It is strange, that though he afterwards went to the man of whom the boat was hired to know if he had obtained it, he should be entirely unable to give any information either as to his name'or residence, so that he may be found. It is strange, too, that after the body alleged to be that of Schumacher was found, there was no one to identify it but this same witness Oltman. It is a suspicious circumstance, too, that Martin, after having sold out his interest in the policy to the plaintiff Adams, should have disappeared, and that no one, neither Bussing nor Oltman, should know what had become of him. He might have
But the evidence was fairly and properly submitted to the jury, and their verdict upon the question of fraud is conclusive. The application for a new trial must, therefore, be denied, unless some error has been committed, either in the admission or rejection of evidence, or the refusal of the judge to charge as requested by the counsel for the defendants. I proceed, therefore, to notice some of the exceptions taken upon the trial.
By the first cross-interrogatory, the witness Oltman was required to state what was his occupation before he left Germany, and "whether he pursued one, or more, and with whom and where he lived. He was also required to describe each occupation particularly, and the places where, and the persons with whom ■ he had pursued it. The only answer to these inquiries is, that his occupation before he left Germany was that of a clerk in a court of justice ; that he lived with his mother in Ovelegonne; that he sometimes followed the mixing of liquors in Ovelegonne and in Bremen ; that he did not recollect the names of the persons for whom he mixed liquors—he did it token traveling.
The ninth cross-interrogatory required the witness to state what was the business in which, after May, 1850, Martin <fc Val-ton were engaged, and of whom they bought, and to whom they sold, and what they bought and sold. To this his only answer was, that he knew nothing of their business until afer the forepart of July, 1850.
Both these interrogatories were pertinent. The witness was a stranger and a foreigner. His testimony was of vital importance in the case. His story, which must be believed, or the action must fail, was such as would not be likely to be believed without full confidence in his integrity. The plaintiffs, instead of bringing him into court, had chosen to examine him upon commission, in a remote part of the country. Under these circumstances, it was the right of the defendants to have all the tests of credibility within their reach applied to him. It was natural and peculiarly proper that they should inquire into the
The answer to the ninth cross-interrogatory is still more objectionable. The witness had been in the employ of Valton & Martin from the forepart of July, 1850, until March, 1851. As appears from the case, he was the only person in their employ. The ground of defense in the action Avas, that though Valton, Martin <fc Co. pretended to be engaged in business as liquor dealers, their real business Avas to practice a fraud upon the defendants. Under such circumstances, they had a right to a full and direct ansAver to the inquiry of whom Valton & Martin bought, and to whom they sold, and Avhat they bought and sold. The inquiry embraced the whole period in which they were engaged in business, after May, 1850. The answer is palpably evasive. It was proper enough for the witness to state that he had no knoAvledge in respect to the business prior to the forepart of July, but that certainly was no reason Avhy he should be excused from stating Avhat he IcneAY about it, after that date. Had the AA'itness been upon the stand at the time, the presiding judge would not" have hesitated to require him to answer the interrogatories more fully. If he had refused, the whole of his testimony might have been stricken out.
The rule in respect to the examination of witnesses upon commission is, that the witness must answer all the interrogatories substantially. A failure to do so, is fatal to the whole deposition. The reason of the rule is obvious. Where a Avitness has assumed to withhold his answer to a part of the interrogatories, the fair inference is, that the commission has been imperfectly executed, or that the deposition does not contain the
I think, too, the defendants should have been permitted "to show what Oltman had said in relation to the death of Schumacher. He was the only witness to prove the strange circumstances connected with that event. He had been asked in the eleventh cross-interrogatory, whether he had made a statement of the occurrence to Mr. Lacy, and in the twelfth interrogatory, whether he had stated to Mr. Lacy that they were not fishing when Schumacher fell overboard, or that he fell overboard in a fit, or that the witness fell overboard also, or that he knew that Schumacher’s life was insured, or that Yalton had told him so, or that Schumacher had left Albany and gone to New York to look for a place to keep a store, or that Schumacher when he was drowned had on yellow nankeen pantaloons; To all this, the witness had answered merely, that he did not know what he had stated on the subject. Mr. Lacy, being examined as a witness for the defendants upon the trial, stated that on the 7th of September, Martin came to his office, and informed
It was insisted upon the trial that the evidence warranted the jury in finding that, though the policy was taken in the name of Schumacher, yet it was in fact the policy of Valton & Martin, or one of them. The defendants’ counsel accordingly asked the judge to charge the jury that if they should find that Martin or Valton, or either of them, procured or paid for this policy, for their own benefit, though with the assent of Schumacher, it was void, as being a wager policy. I am inclined to think the defendants were entitled to have the jury so instructed. Valton & Martin had no such pecuniary interest in the life of Schumacher as would entitle them, for their own security or indemnity, to insure his life. A policy taken in the name of either or both of them would have been void as a wager policy. (1 R. ¡S. 662, s§ 8, 9,10.) They could not, by merely obtaining the use of Schumacher’s name, accomplish indirectly what they could not do directly. If-the policy, from the first, really belonged to Valton & Martin, or one of them—if in fact, Schumacher never had any interest in it, then it was but an attempt to evade the statute against wagers, to take the policy in the name of Schumacher. I am inclined to think the jury would have been warranted in finding that this was so.
' Whether a person can insure his own life for the benefit of another who has no insurable interest, and who himself pays the premiums, is a question which has not been adjudged. It came before Lord Abinger twice, at the circuit, in Wainwright v. Bland, (1 Mood, & Rob. 481; Same case, 1 Mees. & Wels. 32,) but upon the review of the case, the motion for a new trial was decided without touching this question. In that case, the policy was in the name of Helen Francis Phebe Abercrombie. She was an orphan, of the age of twenty-one years, and resided with the plaintiff, who was a near relative. Her only means of subsistence was an annual pension of ten pounds'. In October, 1830, she had, in company with the plaintiff’s wife, applied for and obtained the policy in question. She had previously obtained other policies, in all amounting to £16;000,
The question, therefore, cannot be regarded as having been determined by express adjudication. But, it seems to me to be within the plain meaning of the statute, and obviously within the mischief contemplated by the legislature. The object of the statute was to prevent wagering and speculative policies by third persons having no interest in the subject of insurance. “ Insurances made in good faith for the security or indemnity of the party insured,” are alone declared to be valid. If this policy was, in the language of Lord Abinger, really and substantially the policy of Valton & Martin, or one of them, they putting forward Schumacher as a mere instrument and effecting the policy in his name, with the design of getting the benefit of it themselves, the contract is not within the exception of the statute protecting insurances made in good faith for the security or indemnity of the party insured. There was neither security nor indemnity in the case. It was a mere wagering policy and within the prohibition of the 'statute. (See 3 Kent’s Com. 369, note d.)
The motion for a new trial on the ground of surprise could not have prevailed. Such a motion is properly made at a special term, as a non-enumerated motion. If the court deem it proper to have it heard with a motion for a new trial upon a case or exceptions, an order may be made to that effect. In this case, the motion was made at a special term, at the same time the motion was made upon the merits. It is too late now,
But upon the merits, the motion could not be granted. The defendants’ counsel, according to his own statement, instead of requiring the attendance- of Adams and Parke by subpoena, thought fit to rely upon the assurance of Adams that he would attend the trial. It is indeed, a little singular that both Adams and Parke, situated as they were in reference to this action, after attending upon the trial two days, should have business which required that they should absent themselves, while the evidence was being produced. Such an occurrence was undoubtedly a surprise upon the defendants’ counsel. But having failed to put them under legal obligation to attend, -they are chargeable with a want of legal diligence, which is a sufficient answer to a motion for a new trial on the ground of surprise.
But, for the reasons already stated, I think there should be a new trial. Nor do I regret to find myself brought to this conclusion. The novelty of the case; the mystery that still seems to envelop some of its principal features; the character and circumstances of the chief actors in the transaction, and especially the principal witness in the case, all tend to encourage the belief that the ends of justice may be advanced by allowing the parties to present the facts anew before another jury.
New trial denied.
Wright, Harris and Watson, Justices.]