Summary
Contract on the defendants’ policy of insurance on the life of the plaintiff’s husband, James W. Hoyt, for three thousand dollars, payable on his death to the plaintiff. The answer denied the completion of any contract of insurance.
At the trial in the superior court, before Lord, J., these facts appeared: William H. S. Jordan was in 1865 the general agent in Massachusetts of the defendants, a mutual life insurance company established under the laws of New Jersey, whose directors had made certain “ instructions and rules,” subject to which Jordan accepted his agency, with power to appoint sub-agents, among which “instructions and rules” were the following: “ The agent is not authorized to deliver a policy unless he is satisfied that the applicant is in good health, except in cases when the premium was paid to him at the time of making the application; in which latter case, and the risk being approved of at the home office, the company will be liable from the date of the application. If the application is not accepted, the premium will be returned. The agent is prohibited, in all cases, except when the premium has been paid in advance, from delivering a policy after thirty days from the date thereof, but will return the same to this office. After the expiration of said thirty days, a medical examination being had at the expense of the applicant, and found satisfactory, a new policy will be issued.” “ No risks are binding until assumed by the home office.” “ Agents are not authorized in any case to make, alter or discharge contracts, or consent to assignments.”
By the solicitation of Charles F. Wells, a sub-agent of Jordan, on September 21, 1865, at Ballardvale, James W. Hoyt made an application to the defendants for such a policy as was described in the declaration, which application was forwarded oft that day to the defendants’ home-office at Newark, New Jersey, Wells agreeing that “if, when the policy came on, he did not choose to take it, he need not do so.” In response to this application a policy was made out at the home-office and sent to Boston to Jordan, who received it before the end of September, but did not deliver it to Wells until some time between November 1 and November 4. Wells, on the day he received it went to Ballardvale, where he found Hoyt ill with typhoid fever (with which he had been attacked the week previous,) but sup* posed to be convalescing. What appeared at the trial concern ing this interview was stated in the bill of exceptions as follows u Wells testified that he offered the policy to Hoyt; that Hoyt was discouraged, and said he could not pay for the policy, and refused to take it Mrs. Hoyt, the plaintiff, the only other person present, testified that Wells said that he had brought his policy; and Hoyt said if he would go to Mr. Banks that he would pay him, and that he had made arrangements with him to do so; and that Wells agreed to do so. There was other evidence on both sides bearing upon what took place at that interview, and the evidence here stated is not either all the evidence, or admitted to be the substance of all the evidence, but all the evidence was of the same general nature.”
Wells did not ask Mr. Banks to pay Hoyt’s premium, but returned the policy to Jordan at Boston, and was then first informed of the existence of the rule of the company, above quoted, prohibiting agents from delivering policies to applicants not in good health, except in cases where payment of the premium had accompanied the application.
A few days after this, Hoyt, ascertaining that Wells had not called upon Banks for the premium, sent the amount of it to Boston to Jordan, who refused to receive it and deliver the policy, on the ground of Hoyt’s illness. Hoyt was in fact much more ill at this time than when Wells called on him with the policy; but it did not appear that the increase of his illness was known to the defendants or their agents. He died of the fever on November 23.
There was testimony of Banks tending to show “ that Hoyt had arranged with him for the payment' of the premium ; and that, if he had been asked for it, he should have arranged it.”
There was no evidence that Hoyt had any knowledge of the by-laws of the company; and the plaintiff “ objected to the competency of the private rules, regulations and instructions of the defendants to their agents, which were not referred to in any way in the application and policy, were no part of the contract, were not communicated to Hoyt, and which even the agent Wells was ignorant of.”
But the judge said that he would receive them in evidence " and give such direction to the case and to the jury as the whole case demanded; ” and, refusing a prayer of the defendants foi an instruction that there was no evidence sufficient to warrant a verdict for the plaintiff, he instructed the jury “that, inasmuch as the by-laws or regulations of the defendants in relation to the delivery of the policy after thirty days from its date, or when the insured was sick, were not referred to within the application or policy, and no knowledge was had of them before delivery of the policy, if it ever was delivered, (of which the jury could judge upon instructions to be given,) in the usual mode by the proper officer, such by-laws or regulations after such delivery could not be set up in defence of the policy; that it would be a fraud thus to set up secret instruction to an agent; that the real question for the jury was, whether there had been a delivery of the policy; that delivery of the policy was necessary to the completion of the contract; and that to constitute a delivery it was not necessary that the policy should be passed from the actual manual custody of any party to the actual manual custody of the other, but something must take place which the parties themselves understood to be equivalent to actual manual transfer.” And then he instructed them further as follows: “ In the sale of personal property for some purposes a delivery is necessary, but there are chattels from their nature incapable of being transferred from the hand of one person to that of another, and in such a case a manual transfer is not necessary, but when the parties understand that all has been done that is to be done between the parties, and that thenceforth the article is to be under the control of the vendee, with no further act to be done by the vendor, the delivery is complete. This is not the case with regard to a policy of insurance. That is capable of a manual transfer from one to the other; but the same principle governs If both parties understand that all has been done that is to be done by the insured in order to have the full benefit, control and management of the policy, and no other act remains for him to do, this is sufficient to warrant the jury in finding a delivery of the policy. To apply this principle to the present case, if the jury are satisfied that Hoyt had made an arrangement with Banks to pay the premium upon this policy, and Banks was prepared to pay it upon call and would have paid it upon call, and it was agreed between Hoyt and Wells that Wells would «all upon Banks for it, and both parties understood that nothing more was to be done by Hoyt, and nothing remained except for Wells to call for the premium from Banks, and Wells neglected thus to call for the premium, these facts would be sufficient to warrant the jury in finding such a delivery of the policy as would evidence a valid and complete contract of insurance between the parties; but nothing short of this would be sufficient'; that if, as claimed by the defendants, Hoyt declined to take the policy, of course there was no contract, and the plaintiff could riot recover; if the arrangement1 in relation to Banks was a new arrangement between Hoyt and Wells to procure the assistance of Banks in paying the premium, or if in any respect it fell short of what has been previously stated as necessary, it was insufficient, the contract was incomplete, and the plaintiff could not recover upon it.”
The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
