National Life Insurance Co. of United States of America v. Minch

6 Lans. 100

• Court: New York Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinion

By the Court—Miller, P. J.

At the close of the trial of this action at the Circuit Court, the judge made several rulings, to which exceptions Avere taken before directing a non-suit ; and, among other things, he ruled that there must be proof of a combination, conspiracy or understanding to defraud the company to which Mrs. Minch was a party, and that there was not sufficient evidence from which the jury could find such conspiracy. The plaintiff’s counsel excepted to this decision; and if the judge committed no error in thus holding, then the plaintiff was properly nonsuited upon this ground alone, and the action could not be maintained.

I think that the judge was clearly right in the ruling which he made, and as one good' ground was enough to sustain a nonsuit, the other rulings are of no consequence.

The action was predicated upon an alleged fraudulent combination and confederacy between Davison Potter, the medical examiner of the plaintiif, the defendant and his wife, Mrs. Minch. It was alleged and claimed, upon the trial, that the parties named had combined and confederated together to defraud the plaintiif; and that, with the intent to deceive, cheat and defraud the plaintiff, they made the false and fraudulent representations stated in the complaint, by means of which the policy of insurance was obtained on the life of Mrs. Minch.

How, it is quite plain that if there was no evidence that Mrs. Minch had any knowledge of any combination and conspiracy, or of any intent to cheat and defraud the plaintiff, then there is an utter failure to establish the cause of action alleged, and no case is made out which entitles the plaintiff to recover. So far as relates to Mrs. Minch, at least, the proof fails to establish the allegations made, and as she was not a party to the combination, the action must fall to the ground.

There is no evidence in the case which establishes that the parties, when together, ever exchanged a word between themselves on the subject. It. appears that the defendant applied to Adams, the agent of the company, for the policy-of insurance. Adams filled up the application, and took the answers to the questions propounded to Mrs. Minch, the applicant, from her husband, at his (Adams’) office, and sent the application by the husband to Mrs. Mindi. It was returned to Adams by Mr. Minch, with a mark purporting to be Mrs. Minch’s mark attached at the end of it. Adams considered it necessary that it should be witnessed, and about one week afterward he went to Mrs. Minch, saw her personally, and asked if she had affixed her mark to the application. She replied that she had, and he then, signed his name as a witness. He did not interrogate her in regard to it. The proof also shows that Mrs. Minch was a German, could not read or write English, and spoke the English language-very, imperfectly. The application was not made to her, she did not know the corn-tents of it, and they were not stated to her; that Dr. Potter, at the request of Adams, made a careful examination of the deceased. He had no conversation with Mr. Minch .in relation to the insurance of his wife’s life, before1 the policy was issued, nor with Mrs. Minch, except upon the examination,' and he testifies-that she could only talk sufficiently' to get along with the examination; that he could not talk with her, as she talked German, and he could not carry on a, general conversation with her perfectly and accurately. He'did hot know the contents of the application, never' having seen’it until the trial. - Nor is there any "evidence that either.Minch or his wife ever saw or knew of the contents of1 Dr. Potter’s certificate.

It is manifest, from the testimony, that Mrs. Minch was in' no way a party with her husband and Potter -to' any fraudulent combination. To constitute a fraudulent conspiracy against a party, it must be proved that the person charged, had knowledge of its existence and the purpose for which it was designed. Such knowledge is wanting in this case, and there is not a particle of proof that Mrs. Minch knew anything in regard to it. So, also, to make a party liable for fraudulent representations, they must be known to be such by the party making them, and such party cannot know them to be false withont having knowledge that they were made and what they actually were.

As Mrs. Minch signed, or rather affixed.her mark to, the application, she would, perhaps, be bound by the representations which it contained, as warranties, without knowing what they w'ere, but she could not be affected by them as fraudulent, without knowledge.

As she had no knowledge what representations were actually made upon the application, they were not fraudulent as to her, although they were false.

Even if the representations made by Dr. Potter’s Certificate of examination were false and fraudulent, as the deceased had no knowledge of its contents, she cannot be responsible for it, or affected by them as fraudulent. She was not responsible for any fraudulent representations he might make as the medical examiner of the company without her knowledge of consent,

As the judge was right in his ruling upon the point discussed, he. properly refused to submit the case to the jury upon any of the propositions made by the plaintiff’s counsel, and properly refused the requests made; nor was there any error in the admission or rejection of evidence. The nonsuit was right, and judgment must be' ordered for the defendant upon the verdict.

Parker, J., concurred; Daniels, J., dissented.

Ordered accordingly.