Anderson v. John Hancock Mutual Life Insurance — 27 N.Y. St. Rep. 275

Majority

p. 275

Hilda Anderson, Resp’t, v. The John Hancock Mutual Life Ins. Co., App’lt.

(City Court of Brooklyn, General Term,

Filed November 25, 1889.)

Headnote

Insurance (Lote)—Reinstatement.

Plaintiff held a policy on her child’s life, the premiums on which were paid to defendant’s collector. The collector having failed to call for some time, plaintiff went to the office and signed a paper reinstating the policy on condition that the child was in good health. The evidence as to whether plaintiff knew the contents of the paper, or made representations as to the child’s health, was conflicting. Held, that a verdict in plaintiff’s favor would not be disturbed.

Appeal from judgment in favor of plaintiff, entered upon verdict. The facts appear sufficiently in the opinion.

The court charged that if the contract was secured by fraud, it was not a contract between the parties, and plaintiff could not recover; but if there was no fraudulent representation made, by silence for instance, which induced the parties to enter into the contract for reinstatement, the contract was valid, and plaintiff could recover. The court refused to charge at defendant’s request that it was not necessary to find that plaintiff was guilty of fraud or misrepresentation in order to find for defendant, but if she so conducted herself at the time of signing the reinstatement that defendant had a right to, and did believe she was assenting to its terms, plaintiff could not recover.

Hirsh, & Rasquin, for app’lt; John S. Griffith, for resp’t.

Plaintiff took out a policy with the defendant for her benefit on the life of her child, Minnie. The premium, at the rate of five cents per week, was to be paid weekly to defendant’s collector, who was in the habit of calling at plaintiff’s house for it. Plaintiff regularly paid the premium to the defendant’s collector from October 28, 1885, to March 15, 1886. From the last mentioned date up to April 26, 1886, the collector failed to call for the weekly premiums; on this date, plaintiff testifies, that she went to defendant’s office in this city and complained that the collector did not call regularly for the premium; that she then paid up the balance due, and was requested to sign a paper for the money that she paid, which she did; that she did not read or write in English ; that she was ignorant of the contents of the paper; that it was not read or explained to her; that no inquiry was made as to whether the child was sick.

Defendant’s testimony is to the effect that when plaintiff called at its office she was informed that the policy had lapsed, but that it would be reinstated on condition that the child was in good health; that plaintiff stated that the child was in good health; that the paper signed was read to her; that she said she understood itr and thereupon signed it, and thereafter the policy was reinstated.

The paper in question provided for a reinstatement of the policy on condition that the statement therein contained that the child was then in good health was true. There is no dispute but that the child was sick at the time plaintiff signed the paper.

p. 276

It will thus he seen that the whole case turned on the question as to what took place at the time of the signing of the reinstatement paper. If plaintiff’s statement was true, that she made no representation as to the child’s health, hut simply paid the balance of premium due, and signed the paper, supposing it to be a receipt, and that thereby the policy was reinstated, and that she knew, or was told, nothing of the contents of the paper, she is entitled to recover.

This question of fact was left to the jury to decide, on a charge from the learned trial judge that was fair and liberal to the defendant. The jury have found for the plaintiff, and we can see no reason for disturbing its verdict

The exception to charge as requested at folio 81 is not well taken. The learned trial judge had already charged substantially the same proposition at folio 79, and he was not called upon to repeat it. „

Judgment and order denying new trial affirmed, with costs.

Clement, Ch. J.. concurs.