Potter, J.
1st. The first ground of the motion is, that the plaintiff closed his testimony without putting in any evidence that he had any insurable interest in the life of Nelson H. Mowry; that the defendant moved for a nonsuit, which the judge at first decided to sustain, but afterwards allowed the plaintiff to put in evidence to that effect.
Subject to the rules of evidence and to certain general principles, the whole conduct of the trial, the order of introducing evidence, and the allowing a party to introduce evidence at any particular time, must be subject to the discretion of the presiding judge, with a view to bring before the jury the merits, and the whole merits of the case; and we see no reason for granting a new trial on this ground.
2d.
Because the judge allowed the plaintiff to put in a letter from the president of the defendant company to Shepley constituting him an agent of the company, and at the same time ruled out certain instructions referred to in said letter.
The letter had been admitted without objection. It was put in to show Sheple3>-’s agency. The last paragraph is, “You will, of course, study carefully our 1 Instructions to Agents ’ sent herewith: the suggestions contained therein will, we presume, cover all the points likely to arise in your business. If, however, you need any explanations or information at any time, please write us and we shall be happy to answer your inquiries.” It thus seems that the letter did not refer to the Instructions as any limitation on his authority, and it does not appear that they were anything more than advice and informa, tion for his private use. It did not appear that at the time of making the policy the plaintiff knew either of the letter or of the Instructions, and the fact of his agency was not disputed before the jury. In fact, other documentary evidence of his recognition as a general agent was afterwards put into the case. We do not think the rejection of these Instructions under these circumstances a sufficient reason for a new trial.
3d.
That the judge admitted the testimony of the plaintiff and others, that said Shepley told him and others, that if no poison was found, the defendants would pay. The testimony
of the plaintiff as to Shepley’s statement to him was not objected to : that of the others was objected to and ruled in.
The judge expressly told the jury, that if Shepley was agent the statement would have the same .effect as if made by the defendants, and that if the defendants had made such a statement themselves, it would not bind them; but it was left to the jury in connection with the other facts in the case. We do not consider this as a sufficient ground for a new trial.
4th.
That the judge ruled out testimony offered by the defendants that the plaintiff had, within less than two years, got $30,000 more insurance on the same life, for the purpose of showing that the policy sued on was a wagering and speculative policy, and of showing that the plaintiff must have known that there was something in the condition of said Nelson which would make the insurancepeculiarly hazardous, and which was not communicated to defendants.
It was sufficient for the purposes of this case that the jury were satisfied that he had, as he represented, an insurable interest. We cannot make a new contract for the parties. They made a definite, specific contract, to pay a certain sum on a certain event. The companies calculate the risk according to the tables and upon certain representations. They ai’e paid for the risk. If they had wished to provide against additional insurance they could have done so, but they have not done so.
The objections made to the charge are :—
That the judge did not charge the jury, that the application, and policy were to be taken together and constituted the contract between the parties.
We think the judge did charge to this effect, although not in the exact words asked.
That the judge refused to charge, that if plaintiff did not have an interest in his uncle’s life to the amount of $10,000 the policy was void by the terms thereof, and that as matter of law the plaintiff’s only interest in the life of his uncle was the amount of his indebtedness, and that he could in no event recover an amount exceeding that.
The plaintiff claimed an interest in the life insured on account
of a debt owing him from his uncle, and also on account of an arrangement for going into some business in which his uncle was to assist him, and which would have proved very profitable. A portion of the debt had been paid.
The defendants contended that the debt was a trumped up claim, and was also barred by the statute of imitations.
The judge charged that the plaintiff, in order to recover, must show an insurable interest in the life of his uncle, and on the point made by the defendants that the statements in the plaintiff’s application (one of which was that he had an insurable interest in his uncle’s life to the amount of $10,000) were not true, the judge charged that the burden of proof was on the defendants to show that these statements were untrue; that the value of the uncle’s life to the plaintiff was matter of estimate or opinion ; and it was for the jury to judge, whether by a fair and honest estimate at the time, the plaintiff could consider that he had an interest in his uncle’s life to that amount.
And the judge further charged, that the fact that the note was barred by the statute of limitations, was not-of itself evidence that it was not good and valid to sustain the plaintiff’s claim ; and that these were considerations addressed to the jury.
It was contended that the contract is to be considered as made in New York, and to be governed by the laws of New York. As we understand the New York statute, (Revised Statutes, New York, vol. 1, part 1, ch. 20, title 8, art. 8, §§ 8, 9, 10, Edmond’s éd. p. 614,) and the decisions made in that state, this would make no difference in the present case.
That the judge did not charge, that if any pecuniary interest the plaintiff had in bis uncle’s life at the date of the policy had been discharged by payments from his uncle or from the Brooklyn Life Insurance Company, the plaintiff could not recover.
If the plaintiff had an interest at the commencement of the policy, (if an interest was required,) it is not necessary that interest should exist at time of suit.
Rawls
v.
American Mutual Life Insurance Co.
36 Barb. 357.
If the parties had wished to make it a mere contract to guaranty a debt, they could have done so. They have not done-so.
We consider it settled by tbe authorities, that a life insurance' policy is not in any proper sense a contract for indemnity. It is indeed necessary in New York, and according to some of the other authorities, that the insurer oí the life of another should have some interest at the time of insurance, but what that may be is left very much undefined.
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Potter, J.
1st. The first ground of the motion is, that the plaintiff closed his testimony without putting in any evidence that he had any insurable interest in the life of Nelson H. Mowry; that the defendant moved for a nonsuit, which the judge at first decided to sustain, but afterwards allowed the plaintiff to put in evidence to that effect.
Subject to the rules of evidence and to certain general principles, the whole conduct of the trial, the order of introducing evidence, and the allowing a party to introduce evidence at any particular time, must be subject to the discretion of the presiding judge, with a view to bring before the jury the merits, and the whole merits of the case; and we see no reason for granting a new trial on this ground.
2d.
Because the judge allowed the plaintiff to put in a letter from the president of the defendant company to Shepley constituting him an agent of the company, and at the same time ruled out certain instructions referred to in said letter.
The letter had been admitted without objection. It was put in to show Sheple3>-’s agency. The last paragraph is, “You will, of course, study carefully our 1 Instructions to Agents ’ sent herewith: the suggestions contained therein will, we presume, cover all the points likely to arise in your business. If, however, you need any explanations or information at any time, please write us and we shall be happy to answer your inquiries.” It thus seems that the letter did not refer to the Instructions as any limitation on his authority, and it does not appear that they were anything more than advice and informa, tion for his private use. It did not appear that at the time of making the policy the plaintiff knew either of the letter or of the Instructions, and the fact of his agency was not disputed before the jury. In fact, other documentary evidence of his recognition as a general agent was afterwards put into the case. We do not think the rejection of these Instructions under these circumstances a sufficient reason for a new trial.
3d.
That the judge admitted the testimony of the plaintiff and others, that said Shepley told him and others, that if no poison was found, the defendants would pay. The testimony
of the plaintiff as to Shepley’s statement to him was not objected to : that of the others was objected to and ruled in.
The judge expressly told the jury, that if Shepley was agent the statement would have the same .effect as if made by the defendants, and that if the defendants had made such a statement themselves, it would not bind them; but it was left to the jury in connection with the other facts in the case. We do not consider this as a sufficient ground for a new trial.
4th.
That the judge ruled out testimony offered by the defendants that the plaintiff had, within less than two years, got $30,000 more insurance on the same life, for the purpose of showing that the policy sued on was a wagering and speculative policy, and of showing that the plaintiff must have known that there was something in the condition of said Nelson which would make the insurancepeculiarly hazardous, and which was not communicated to defendants.
It was sufficient for the purposes of this case that the jury were satisfied that he had, as he represented, an insurable interest. We cannot make a new contract for the parties. They made a definite, specific contract, to pay a certain sum on a certain event. The companies calculate the risk according to the tables and upon certain representations. They ai’e paid for the risk. If they had wished to provide against additional insurance they could have done so, but they have not done so.
The objections made to the charge are :—
That the judge did not charge the jury, that the application, and policy were to be taken together and constituted the contract between the parties.
We think the judge did charge to this effect, although not in the exact words asked.
That the judge refused to charge, that if plaintiff did not have an interest in his uncle’s life to the amount of $10,000 the policy was void by the terms thereof, and that as matter of law the plaintiff’s only interest in the life of his uncle was the amount of his indebtedness, and that he could in no event recover an amount exceeding that.
The plaintiff claimed an interest in the life insured on account
of a debt owing him from his uncle, and also on account of an arrangement for going into some business in which his uncle was to assist him, and which would have proved very profitable. A portion of the debt had been paid.
The defendants contended that the debt was a trumped up claim, and was also barred by the statute of imitations.
The judge charged that the plaintiff, in order to recover, must show an insurable interest in the life of his uncle, and on the point made by the defendants that the statements in the plaintiff’s application (one of which was that he had an insurable interest in his uncle’s life to the amount of $10,000) were not true, the judge charged that the burden of proof was on the defendants to show that these statements were untrue; that the value of the uncle’s life to the plaintiff was matter of estimate or opinion ; and it was for the jury to judge, whether by a fair and honest estimate at the time, the plaintiff could consider that he had an interest in his uncle’s life to that amount.
And the judge further charged, that the fact that the note was barred by the statute of limitations, was not-of itself evidence that it was not good and valid to sustain the plaintiff’s claim ; and that these were considerations addressed to the jury.
It was contended that the contract is to be considered as made in New York, and to be governed by the laws of New York. As we understand the New York statute, (Revised Statutes, New York, vol. 1, part 1, ch. 20, title 8, art. 8, §§ 8, 9, 10, Edmond’s éd. p. 614,) and the decisions made in that state, this would make no difference in the present case.
That the judge did not charge, that if any pecuniary interest the plaintiff had in bis uncle’s life at the date of the policy had been discharged by payments from his uncle or from the Brooklyn Life Insurance Company, the plaintiff could not recover.
If the plaintiff had an interest at the commencement of the policy, (if an interest was required,) it is not necessary that interest should exist at time of suit.
Rawls
v.
American Mutual Life Insurance Co.
36 Barb. 357.
If the parties had wished to make it a mere contract to guaranty a debt, they could have done so. They have not done-so.
We consider it settled by tbe authorities, that a life insurance' policy is not in any proper sense a contract for indemnity. It is indeed necessary in New York, and according to some of the other authorities, that the insurer oí the life of another should have some interest at the time of insurance, but what that may be is left very much undefined. The reasons generally given for requiring an interest as matter of public policy, do not seem very forcible, and in
Johnson
v.
Trenton Mutual Life Insurance
Company, 4 Zabriskie, 576, the court held policies good without interest, and observe that a policy on another life is just as dangerous and tempting to crime where there is an interest, as where there is not.
As the, judge observed on the trial, it is almost impossible to estimate exactly the interest one has in the life of another. If he is a debtor, it does not follow that the interest of the insurer is the whole amount of his debt.
That the judge refused to charge, that if said plaintiff procured insurance on the life of his uncle largely in excess of his pecuniary interest, and such interest was used as a cover for a wagering policy, the plaintiff could not recover.
This point is disposed of by what we have before said. In this case, the plaintiff represented that he had an insurable interest to the amount of $10,000, and that matter was left to the jury under the directions before mentioned. Moreover, the judge did substantially comply with the request. He charged the jury that if the plaintiff’s claims were simply the pretext for the insurance, and he had no interest in the life of his uncle which, as a reasonable man, he would desire to have protected by an insurance, or if that interest were small and the insurance vastly disproportionate, that then the contract was a gaming contract, and should not be sustained.
The judge was requested to charge, that if the habits of said Nelson. H. Mowry were not uniformly and strictly temperate, the verdict should be for deféndant.
As one of the questions proposed and answered in connection -with the above was, whether said Nelson was addicted to the .excessive use of alcoholic liquors or opium, we think the judge
rightly ruled, that this language was to be taken in its ordinary sense, that an occasional use was not to be deemed intemperance, but that he must indulge in th'em to such an extent as would be considered an excess.
Upon the point whether any company had previously rejected any application for similar insurance, we deem the evidence which was stated to the j ury to be too indefinite to be entitled to much influence. And the judge did charge, that if the jury were satisfied such an application had been rejected, the verdict as to that point should be for the defendant.
That it was in evidence, that the cash premium was not paid on the third of March, and that Shepley, the agent, had no authority to waive it or accept a note in lieu of part of it.
The judge ruled, and we think properly, that the receipt signed by the officers of the company and delivered by the agent Shepley, dated March 3d, was presumptive evidence of payment on that day, and' was a recognition of the note as payment. And that if Shepley was the regular agent of the company in this state, then he had (in the absence of evidence to the contrary) full authority to act for the company, and that any limitation on this authority must be brought home to the knowledge of the plaintiff.
The j udge charged, and rightly, that if the premium was not paid on the third of March, but afterwards, it was the duty of the plaintiff to satisfy the jury that Nelson H. Mowry was in good health at the date of payment in order to keep the policy in force; and upon the L2th point he charged as requested.
We have considered these points, ..and also the questions as to the weight of evidence, and see no sufficient reason for granting a new trial.
Exceptions overruled.