Markey v. Mutual Benefit Life Insurance

103 Mass. 78

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Wells, J.

This case was presented to the jury, in the superior court, under instructions that, as matter of law, the plaintiff 11 is not entitled to recover, unless there was a policy made and delivered within the lifetime of Hoyt, or such acts done as are in law equivalent to a delivery of the policy.” Previously to the arguments of counsel, the judge had announced his rulings, “ that there is no evidence to warrant the jury in finding that there was any other agreement between the parties than that of a contract of insurance in the ordinary mode by a policy of insurance; ” and that, “ in order to constitute a valid contract, there must be either a delivery or its equivalent.” The questions raised upon the exceptions must therefore be considered here entirely in reference to that aspect of the case.

1. Upon the point of delivery of the policy, either actual or constructive, the questions presented differ in some respects from those at the former hearing in this court. 98 Mass. 539. There was then no evidence of any change of manual possession of the policy. As there was no evidence or pretence of any understanding, on either side, that the policy was to be delivered without payment of the premium, it was held that instructions could not be sustained, which authorized the jury to find that an agreement of Wells, at the request or suggestion of Hoyt, that he would go to another person at another place in order to obtain the money for the premium, with an understanding by both “ that nothing more was to be done by Hoyt, and nothing remained except for Wells to call for the premium from Banks,” and the neglect of Wells thus to call for the premium, were equivalent to a delivery of the policy. Upon a careful revision of that case, we are entirely satisfied with the conclusion to which we then came. Regarding Wells as the agent of the defendants “to all intents and purposes,” yet the particular service which he undertook, by virtue of the supposed agreement, was in behalf of Hoyt, and to enable him to complete the contract on his part. It was not an undertaking within the apparent scope of his business as agent of the insurance company. We are not prepared to say that, if he had been principal instead of agent, the result would have been different as the question was then presented.

So far as the case depends upon the arrangement in regard to procuring payment of the premium from Banks, it stands now less strongly, upon the testimony, than at the former trial. That arrangement is therefore material only in its bearing upon the question whether there was a delivery to Hoyt or his wife, at their own house, upon credit; or a waiver of the immediate payment of the premium as a condition of the transfer of title to the policy.

Upon this question, the instructions given to the jury at the last trial are full, explicit and clear in their terms. We see no ground of exception to them, on account of anything which they contain. But it is not enough that the instructions are complete and accurate in themselves, as a statement of law, if they permit a jury to return a verdict upon facts which will not in law justify such a verdict. The correctness of instructions must be tested by the facts to which the jury are required to apply them. Brightman v. Eddy, 97 Mass. 478. Pond v. Williams, 1 Gray, 630. Besides, the question whether there was sufficient evidence to warrant a verdict for the plaintiff was distinctly raised at the trial. It is necessary therefore to determine that question by an examination of the testimony.

The only witnesses, whose testimony bears upon this point, are the plaintiff herself, and Wells, the insurance agent. No one else was present at the time of the alleged delivery, except Hoyt, the deceased. Whether there was a delivery, understood by both and intended to pass the title in the policy presently to Mrs. Hoyt, and a postponement of the payment of the premium until some indefinite future time, or until Wells should call upon Banks for it, must depend upon the facts and occurrences of that interview as narrated by these witnesses. In such an inquiry we must take the testimony as the jury would have a right to regard it, giving to all the statements of Mrs. Hoyt the construction most favorable to her; and, in case the testimony of Wells conflicts with hers, rejecting it altogether, or considering it only so far as it may, in any particular, seem to support the positions of the plaintiff’s case.

We are to keep in mind that we have before us only the bare words in which the testimony of the witness was given; whereas the living witness was before the jury, affording them the opportunity to judge, not only of the credit to be given to the witness, but also of the force of the words used, and the precise meaning they were intended to convey, so far as the tones and inflections ot the voice, the manner and appearance of the witness, and his or her mode of testifying could affect the force and meaning of the words uttered. This consideration always has weight in determining whether a verdict ought to be sustained upon the Testimony reported. But the language of the witness "is the proper vehicle of his thought. Much may be inferred against an adverse witness, different from the obvious meaning of his words. But an affirmative proposition of fact, which a party is bound to establish, will not be presumed to have been established without some testimony tending directly to its support. Testimony delivered orally will not legitimately establish a proposition of fact which cannot, by any mode of interpretation, be deduced from the words themselves when written. Although “the appearance, look, manner, mode of answering, emphasis, accents, gesticulations, &c., are all proper matters of evidence to the jury,” (that is, to aid in the interpretation of the testimony,) and although these cannot be reported, yet when the report does contain “all the language used by the witnesses in giving their testimony,” the question of law is properly raised whether the verdict can stand upon that testimony.

Recurring to the testimony, the statement of the plaintiff in regard to the interview between Wells, Hoyt and herself, wher_ the policy is claimed to have been delivered, is, in brief, this. “ He came in ; my husband was on the bed; he (Wells) made some commonplace remark, and then said to my husband, 11 have brought your policy.’ My husband said he was very glad of it; he had been expecting it for some time. He took it and looked at it, and passed it to me and said, 6 Here, Eliza, here is your policy.’ I took it in my hands and glanced it over; and he then said, 1 Mr. Wells, I am not feeling well enough to attend to this business to-day; but I have made arrangements with Mr. Banks to do it for me.’ Well, Mr. Wells said that he would go. They had some more conversation. I could not justly remember about the other things; and he arose to go, and I passed him the paper as he arose to go out of the room, and he went over there, or said he would go to Mr. Banks.” To the question, “ What was said when you passed him the policy ? ” she answered, “ He took the policy, and said he should go to Mr. Banks.” Q. “ Did you say anything ? ” Ans. “ I passed him the policy, and said I, 6 You may want the policy if you are going to Mr. Banks.’ And he took the policy.” Q. “ Did he ask for it?” Ans. “ No, sir, he did not.” Q. “ Did your husband state to him what arrangements he had made with Mr. Banks about the policy?” Ans. “ No, sir, anything more than that be had made arrangements with him to take the policy.” Q. “ Was anything said about paying for the policy ? ” Ans. “Oh, yes.” Q. “ What was said about it ? ” Ans. “Well, he told me that there was money,— that his money was in the shop, his money that he hadn’t drawn, and Mr. Banks would pay for it for him.” Q. “ That is, he said that there was money for him in the shop that he hadn’t drawn?” Ans. “ Money owed to him.” Q. “ Owed to him, and Mr. Banks would make arrangement to get it for him ? ” Ans. “ Yes, sir.”

The cross-examination does not add anything to the force or significance of the plaintiff’s direct testimony, as above given.

The obvious purport of this testimony, and, as we think, the only legal conclusion that can properly be drawn from it, is, that the policy was handed to Hoyt and his wife for their inspection only, to enable them to determine whether to accept it and pay the premium. At most, it was a mere proffer of the instrument which contained the contract; requiring, upon the other side, acceptance and payment of the premium to give it legal operation and effect as a contract. The judge rightly instructed the jury that the presumption of law was that the payment of the premium and the delivery of the policy were dependent upon each other. To our minds, the testimony utterly fails to show, or to give the jury any ground for inference, that Wells intended, or that either Hoyt or his wife understood, that the policy became her property by reason of what occurred at that interview. The mere act of passing the manual possession, under the circumstances, does not vest the legal possession in her, nor prove that it was intended to do so; and the jury could not find a verdict for the plaintiff from that fact alone. Commonwealth v. O’Malley, 97 Mass. 584. Phelps v. Willard, 16 Pick. 29.

This being so, the burden is upon the plaintiff to show, by some affirmative evidence, that the real intention and under standing was so to pass the legal title and possession without or before payment of the premium. Not only do the acts and words of the parties, at this interview, fail to furnish such affirmative evidence, but, as it appears to us, they exclude such an inference. Hoyt, feeling too unwell to attend to the business himself, refers Wells to Mr. Banks to do it for him. Wells takes the policy and leaves the house. We cannot conceive of any emphasis, gesticulation or other indication in the appearance and manner of the witness upon the stand, which can make the plaintiff’s testimony, containing this statement, convey or consist with the idea that the parties intended or understood that the delivery of the policy was nevertheless complete and absolute and only the payment of the premium postponed.

The testimony of Wells is in utter denial of any delivery, or any arrangement about going to Banks for the premium; and asserts that Hoyt declined to take the policy. We can discover in it nothing which tends to support the plaintiff’s case; and the utmost effect of his appearance upon the stand would be to discredit Ms statements altogether.

Upon these considerations, the court are clearly of opinion that the jury were not warranted by the testimony in returning a verdict for the plaintiff upon the ground of a delivery, actual or constructive, of the policy; and that the instructions permitting them so to return a verdict were, for that reason, erroneously given.

2. There is another ground upon which the verdict may have been rendered, and which may become important at another trial. It is necessary, therefore, to consider it now. The judge instructed the jury, in regard to the proffer of the policy by Wells and the subsequent tender of the premium, as follows: “ If, having notified the assured that the policy was ready, and if, on an interview between them, it was mutually understood that it was not convenient on that day to consummate the contract by. the payment of the premium on delivery of the policy, but the contract had not been abandoned by either party, and both parties understood that it was still a contract which might be completed; if then, within a reasonable time — and in law the next day would be a reasonable time — there being in the mean time no change whatever in the circumstances, if the party had not become sicker, or the risk increased, or any other fact transpired which changed at all the condition of things from what it was the day before, then a tender of the premium and demand of the policy upon the duly authorized agent of the company will be sufficient to vest the right of the policy in the plaintiff.”

This instruction seems to imply that there was evidence from which the jury might find that there was a contract to insure, independent of the policy, which, if not abandoned by the plaintiff, or forfeited by refusal or neglect to pay the premium, would bind the defendants to insure and to deliver a policy of insurance upon such payment or tender of payment. But the judge had previously ruled that there was no evidence to warrant the jury in finding such a contract. The case had been argued to the jury by the counsel, upon the basis of that ruling. We have no occasion, therefore, to examine the testimony to see whether there was in fact such evidence or not. If the jury understood the instruction in this sense, as we think they were liable to do, its tendency would be to mislead them in their conclusions.

That previous ruling must be held to exclude also the proposition that a contract, binding upon the defendant, had arisen from the acceptance of the plaintiff’s application for insurance, such acceptance being proved by the making of the written policy, sending it to Wells for delivery, and the offer of delivery by him.

We are inclined, however, to interpret this instruction as intended to be in conformity with the previous ruling. In that view, the proposition we suppose to be substantially this, namely, that the proffer of the policy by Wells, he being fully aware of the condition of health in which Hoyt then was, and not withdrawing it at that interview or then intending to withdraw it, remained an open and continuing proposal to contract by means of that policy, which entitled the plaintiff to accept it within a reasonable time, and, by paying or tendering the premium, to demand the policy; and that such payment or tender and demand would be equivalent to an actual delivery.

We cannot so hold the law to be. There being previously negotiations, but no contract, and no purpose to contract otherwise than by a policy made and delivered upon simultaneous payment of premium, the proffer of a policy, even if intended as an offer which was to continue open for acceptance within a reasonable time, would become a contract only by acceptance before it was withdrawn. And it might be withdrawn at any time before it was' actually accepted, whether the reasonable time had elapsed or not. One party is not bound by such a proposal until the other is bound by its acceptance.

The return of the policy by Wells to the general office in Boston, of which it is apparent that the plaintiff had knowledge, was evidence of such a withdrawal, competent at least to be submitted to the consideration of the jury upon that question. But, further than that, we see no evidence that the offer of the policy by Wells, at the interview in Hoyt’s house, was to remain open for acceptance after that interview was ended, except under the special arrangement for doing the business with Banks, of which Mrs. Hoyt testifies; and that arrangement was terminated by the failure of Wells - to renew the offer to Banks. In the absence of anything in tire terms or mode of the offer to indicate that it contemplates a future acceptance, the presumption is that it terminates with the interview at which it is made.

In the aspect of the case upon which it was submitted to the jury, we think that the instructions in regard to the effect of a tender of the premium in Boston to vest the right of the policy in the plaintiff were not correct.

3. We have considered the questions thus far without regard to any supposed limitations upon the authority of the agents, Jordan and Wells. The defendants proposed to show such limitations by certain “instructions and rules of the company, for agencies.” It not being shown or claimed that the application or policy contained any reference to such limitations, or that the plaintiff had in any manner notice thereof, the court properly excluded the evidence. The authority of an agent must be determined by the nature of his business and the apparent scope of his employment therein. It cannot be narrowed by private or undisclosed instructions, unless there is something in the nature of the business or the circumstances of the case to indicate that the agent is acting under special instructions or limited powers.

On the other hand, it does not follow, from the fact that a man is shown to be agent for another or for a corporation, that his principal is bound by all that he does. There are limitations which grow out of the very law of agency. In the first place, the act must appear to be an act of agency, that is, done in behalf of the principal. In the case of corporations created for a special purpose or engaged in a special business, the authority of the agent will be presumed to be limited by the nature of that purpose or business. So, too, the authority of every agent will be presumed to be limited by the apparent scope of the particular employment or branch of the general business of his principal in and for which he is engaged; and all who deal with him in that relation are affected by such apparent limit of employment and powers.

In this case, the authority of Jordan must be taken to be limited to the business of insurance; and, within that business, by whatever of restriction the fact that his principal is a mutual insurance company may properly impose. The authority oí Wells may be still further restricted by the known fact that bf was only a sub-agent, employed to receive applications for insurance and forward them to the company, and to deliver policies issued by the company, and collect premiums thereon. B is not within the apparent scope of the employment of such ar agent to make contracts or declarations to bind the company generally; and therefore we think the defendants may show the-actual extent and limit of his authority.

In the case of Harrison v. City Insurance Co. 9 Allen, 231, it was distinctly held that the St. of 1861, c. 170, did not affect the power of insurance agents to bind their principals, or change in any respect the rules of the common law upon the subject of agency. The St. of 1864, c. 114, affords even less reason for the supposition that it was designed for that purpose. The statute applies only to the persons who assume to act as agents. I’ has no reference to or bearing upon the corporations themselves directly. It declares that such persons shall be held to be agents “to all intents and purposes,” that is, to all intents and purposes for which the statutes apply to agents of insurance companies But it does not undertake to set forth their powers as agents; nor can it be supposed that it was the intention of the legislature to clothe every person who should solicit insurance in behalf of any foreign insurance company, or transmit the application of any other person for insurance, with the full powers of a general agent of such company. The instructions of the court below assumed a different construction of the statute, which we think was. erroneous.

For the several reasons above stated, the verdict must be set aside. Exceptions sustained.