Bragdon v. Appleton Mutual Fire Insurance , 42 Me. 259 ( 1856 )

Tenney, C. J.

The nonsuit, in this action, was directed by the Judge, after the evidence on both sides had been presented to the jury. To this direction, the plaintiffs excepted.

After the plaintiff in an action has adduced the evidence on which he relies for its maintenance, the presiding Judge may order a nonsuit, without being moved by the defendant to do so. But to such order, the plaintiff is entitled to his exceptions. But the refusal to direct a nonsuit, upon motion, is not subject to exceptions.

If evidence is introduced in defence, the truth of this evidence, if favorable to the defendant, cannot be assumed by the Judge, but must be submitted to the jury.

When the plaintiff’s evidence, taken in its full strength, has no tendency, in the opinion of the Judge, to maintain the issue for him, it is an useless consumption of time to hear evidence in defence, and after that direct a nonsuit. It may be true, that the evidence of the defendant cannot be regarded as giving any strength to the plaintiff’s case, as it stood, when he stopped, but it is proper that there should be some uniform rule of practice in this respect. And such a rule has been recognized in the cases of Lyon v. Sibley, 32 Maine, 576, and Emerson v. Joy, 34 Maine, 347; and, it is believed, that this rule has generally been adhered to in practice.

The ground upon which the liability of the company is denied, is, that the policies were not delivered; and that this omission was because the cash premium was not paid, as the by-laws required.

The plaintiffs’ evidence, if true, showed that Boyd was the general agent of the company, and that Moody, of the firm of Fellows & Moody, was also an agent; and from the fact, that premiums for insurance were paid when he and Boyd were present, and he was unable to state whether it was paid to one or the other, it may be a legitimate inference, that it was a part of Moody’s business under his agency to receive money for the company. These agents went to the village of the residence of the plaintiffs on the 7th day of October, 1853; after certain negotiations with Bragdon, the plaintiff, applications were prepared by Boyd, upon the request to be insured from that time, and signed by both plaintiffs, in a manner satisfactory to Boyd, who said the policies should be made without delay. Moody told Bragdon, during the negotiations, that it made no difference whether he paid the cash premium at that time, or when he should take the policies, and he did not pay it. Bragdon also asked Boyd for a copy of the by-laws, and was told by him, that he had none with him, but that he would be furnished with a copy on the policies. It appears further, from the evidence, that it was the understanding that the policies would be made at once, as the president of the company was in an adjoining town, and should be left with Fellows & Moody, at Waterville, and no time was fixed when Bragdon should take them. The policies were made and signed, and put into the hands of Fellows before the loss; but Fellows was afterwards ordered by the president not to deliver them, and they were subsequently taken back. No evidence introduced by the plaintiffs, tended to show that Bragdon was informed by any agent of the company, or knew, or had reason to suppose, that the by-laws required payment of the cash premium to make the policies effectual. The plaintiffs did not introduce at the trial the by-laws, and it is understood that the specifications of defence did not require the production thereof, or of the policies, to make out a prima facie case for the plaintiffs.

From the foregoing facts, was there nothing for the jury to determine ? If there was, and they might have found from the evidence that the right of the company to receive the cash premium before the delivery of the policies, was waived, by the fact, that they were left by the president with Fellows & Moody, they had become effectual from that time, notwithstanding Bragdon had not received them. “When a policy of fire insurance has in fact been executed, and notice of the execution been given to 'the assured, its actual delivery is not essential to the completion of the contract.” Angell on Fire and Life Insurance, 67; Kahue v. Ins. Co. of North America, 1 Wash. C. C. R. 93.

If the policies had not been withdrawn from the possession of Fellows, or directed not to be delivered to Bragdon, by the president, and no loss had occurred, would not the plaintiffs have been liable for the premium to the company, though the plaintiffs had refused to take the policies ? If such liability had existed, it cannot be contended that a corresponding obligation on the part of the company did not attach.

Exceptions sustained, verdict set aside, new trial granted.

Rice, Appleton, May and Goodnow, J. J., concurred.