New York Life Insurance v. Flack , 3 Md. 341 ( 1852 )

Le Grand, C. J.,

delivered the opinion of this court.

The action in this case was founded on a policy of insurance, underwritten by the appellant, on'the 26th day of October 1849, being an insurance oil the life of Jonathan Nesbitt. On the fifth of June 1850 he died, after having, on the 3rd of the same month, assigned all interest in the policy to the appellee, “for the sole and separate' use of his wife, Mary E. Nesbitt, her executors, administrators and assigns.” Notice of the assignment was not given to the company until after the death of Nesbitt, but on the day when that event took place.

The right of the plaintiff to recover in this action is denied on several grounds. Two of them-' relate to the assignment made on the 3rd of June, and the seventh and eighth prayers are designed to present the questions growing out of it. The eighth denies' the right of the plaintiff below to recover in his own name by virtue of the assignment,--and the seventh asserts, that no recovery can be had if the jury should find the com•pany was not notified of the assignment until after the death of Nesbitt. If either of these propositions be true, then whatever else there may be in it, there is not sufficient in the case to give the plaintiff a proper standing in court.

The eighth prayer is founded upon two grounds: first, that the policy provides the sum of money secured by it shall, in the event of the death of Nesbitt, be paid to his “legal representatives;” and second, that it was in violation of the testamentary system of the State.

Although- it be true that there is a provision in the policy binding the company to pay the legal representatives of the insured, yet this obligation must be taken in connection with other portions of the same instrument, otherwise the true meaning of the whole would not be ascertained. The contract is with the “assured, his executors, administrators and assigns,” and at the bottom of the policy are these words: ftN. B. If assigned, notice to be given the company.”

Taking into consideration the whole instrument our opinion is, that the provision to pay to the legal representatives was designed to apply only to a case where the assured died without having previously assigned the policy, and not to be construed as, in any sense, limiting the power of the party insured to assign. The nota bene, at the close of the policy, was evidently inserted for the protection of the company. Knowledge of the assignment could only be important to it in one view: to prevent the possibility of its being compelled to pay both the assignee and the legal representatives of the insured. In fire policies there is, generally, a condition, that any assignment will be void without the assent of the underwriters be first obtained. The reason of this is obvious. A fire policy may be underwritten for one person when it would not be for another. In all such cases, the character for integrity and caution of the party constitute important considerations. While the character of one person would be a complete guaranty that he would not fire his own house or goods, the character of his assignee might furnish no such assurance, and therefore it is, that in fire policies the assent of the underwriters is indispensable to the validity of the assignment. No such reason obtains in the case of an insurance on human life.

The witness, Win. II. Young, Esq., testifies, that he prepared the assignment; and although the appellee was not present at the time, he had been previously informed of the intention to execute such an assignment, and that ho agreed to act as trustee; that after the execution of the instrument it was delivered to witness, who placed it in a drawer in the house of Nesbitt, which was under the control of witness; that he prepared a notice of the fact of the assignment, to bo delivered to the company, and was under the belief it had been delivered, until, on the day of the death of Nesbitt, he found such not to be the case, when he immediately caused the notice to be given. We consider this a sufficient compliance with the requirement of the policy. It does not specify any particular time within which the notice is to be given, and we think two days sufficiently early, although after the death of the assured. The witness testifies he considered himself as representing the appellant. There is no pretence of fraud in the assignment, and we consider the delivery to Young a sufficient delivery to vest title in the assignee.

We consider the assignment as authorized by the act of 1829, chapter 51, the policy being but a chose in action for the payment of money. All contracts for the payment of money, whether express or implied, are within the purview of that act. Crawford vs. Brooke, 4 Gill, 214. Gordon vs. Downey, 1 Gill, 41. The delivery of the assignment to Young, as the representative of the appellee, was a complete and absolute surrender of all legal power and dominion over the policy, and as such, was good against all but the creditors of the assignor, and none such are before us, and for aught we can see, there were none. 2 Gill and Johnson, 208. 5 Gill & Johns., 54. 1 Md. Chancery Decisions, 34. For these reasons, we are of opinion, the county court properly rejected the seventh and eighth prayers of the appellant.

The appellant offered, in all, nine prayers to the court below, some of which were granted and some rejected. We have said we concur with them in the propriety of the rejection of the seventh and eighth prayers. Ail the others were founded on the truthfulness or falsehood of the declaration of the insured, at the time he answered the interrogatories propounded to him by the company, and the evidence, aliunde his declaration, touching the condition of his health.

It appears from the evidence in the cause, that the deceased had been applied to by the agent of another insurance company, and, at his solicitation, underwent an examination by the physician, who declined reporting favorably on his case, because his pulse was two or three beats higher than his company would take, and who said he could not recommend the life, and suggested that the papers be not sent on to his company, (which was located in New Jersey;) and that he should not be required to pass an opinion on the life, as it might injure Mi-. Nesbitt if he applied to another company. The application had been filled up and was ready to be sent on, but the opinion of the physician prevented it. All persons applying for insurance by the appellant, are required to answer certain questions, and a failure to answer them honestly and correctly deprives them of all advantages derivable from the policy. The fourteenth interrogatory propounded to Nesbitt was in these words: “Has a proposal been made for insuring the life of said party, (Nesbitt,) at any other office? and if so, state whether it was accepted or declined?” To this question Nesbitt answered “No.”

On the testimony the appellant, by its second prayer, asked the court — which it refused to do — to instruct the jury, if they should find from the evidence, that Nesbitt, prior to the application to the appellant, had filled up an application to another company, with intent to obtain a policy of insurance from said company, in case such application should be accepted; and that the applicant was examined by the medical examiner of said company, and that it was the purpose and intention of said Nesbitt to prosecute his application, in case he should be recommended by said medical examiner as a person proper to be insured by the company; and shall further find, that said Jonathan Nesbitt was rejected on such examination by said Dr. Collins, and the said Nesbitt thereupon withdrew iris papers from the agent of the company; and shall further find, that on his application to the appellant for insurance he did not disclose the fact, that he had been so examined and rejected, and that it was a material fact that ought to have been made known to the appellant, then the appellee was not entitled to recover.

Whether the facts set out in the prayer amounted to a proposal it is not important, in the view we have of the case, to inquire. The prayer rests entirely on the falsehood of the declaration of Nesbitt, and the court, by giving the first and ninth prayers offered by the appellant, clearly put the question before the jury, and gave to the company all the advantage to which it was entitled. The first instruction informed the jury, that if they should find “the declaration made by the said Jonathan Nesbitt, bearing date the 20th day of October 1849, was in any material respect untrue, then the plaintiff is (was) not entitled to recover in this case.” And the ninth prayer told them if they should find from the evidence, “that prior to the making of the proposal of the 20th day of October 1849, a proposal had been made in August 1849 by the said Jonathan Nesbitt, for the insurance of his life for $5000, at the Mutual Benefit Insurance Company of New Jersey, then the plaintiff” was not entitled to recover.

These two instructions clearly submitted the truth or falsity of the answer of Nesbitt to the jury. The first distinctly told them, if they should find his declaration in any material respect .untrue, the appellant was not entitled to recover; and the ninth as clearly informed them, if th.ey should find he had made a prior proposal to another company, that there could be no recovery. In the case of the Mutual Safety Insurance Company vs. Cohen, 3 Gill, 482, the court say, “some of the instructions which were asked for and refused might have been granted; but it is believed, that the instruction given covers the whole ground, and therefore, for the rejection of them, the judgment ought not to be reversed.” See, also, 13 Peters, 191. We do not, therefore, deem it necessary to inquire, whether the second prayer of the appellant, if it were the only prayer in the case, ought to have been granted? It is clear, all the advantage it proposed to the company was secured by the first and ninth prayers which were granted by the court, and therefore, in the language of the court in 3 Gill, for its rejection the judgment ought not to be reversed.

For the same reasons, we are of opinion that the county court ought not to be reversed, because of its rejection of the fourth and sixth prayers. It appeared from the evidence, that Nesbitt was liable to attacks of dyspepsia, and that he had been attended at different periods by different physicians. The fourth prayer asked the court to instruct the jury, that if they should find that Nesbitt, “at the time of his application, yvas predisposed to the disease of dyspepsia to such a degree as seriously to affect his health, and to such a degree as to produce bodily infirmity,” then the plaintiff was not entitled to recover.. This prayer, as a distinct proposition, wfe are of opinion.ought to have been granted, for we cannot see how a person can be sound and healthy who is predisposed to dyspepsia to such a degree as to produce bodily infirmity; but the company had the benefit of this instruction in the first and fifth, which were granted. The latter told the jury, if they should find he “was not in good health at the time of the application” there could be no recovery; and the first said, if his answers were erroneous in any material respect, the action must be defeated. The tenth interrogatory propounded to Nesbitt was-in these words: “Is the parly subject or predisposed to any disease or bodily infirmity.” If, therefore, he was, in point of fact, predisposed to dyspepsia and the proof showed it, the first instruction told the jury the plaintiff was not .entitled to recover. Whatever may be our views of the force of the testimony, it is not for us to correct the verdict of the jury; that, more properly, was for the court below, by granting a new trial, if they believed the evidence called for a different finding. The foregoing reasons dispose, also, of the sixth prayer.

Judgment affirmed.

'Ecclf.stqn, J., dissenter!.