Hartford Live Stock Insurance v. Matthews

Ames, J. The failure, on the part of the plaintiff corporation, to comply with the requisitions of the fifty-eighth chapter of the General Statutes, does not have the effect to render invalid their contract of insurance, or make it illegal in such a sense as to deprive them of its benefits. The seventy-second section of that chapter so provides in express terms. It is contended, on the part of the defendants, that the benefit of this saving clause in the statute is to be restricted to such foreign insurance companies as shall have acquired the right to do business in this state, by the appointment of a general agent according to the terms of § 68. But we can see no foundation for this distinction. It is true that it is expressly declared in that section that no such company shall do business in this state until it shall have made such an appointment; and § 72, which provides that the con. 225 tract of insurance, though not in conformity with the statute, shall nevertheless be valid, also provides that the agent making the insurance shall be liable to the penalty provided in § 74. But this last mentioned section is not to be restricted in its application to the “general agent” of any such company, duly appointed as such. The language of the section is, that “ no person shall act as agent of an insurance company not incorporated in this state, until he has complied,” Sic., under penalty of a fine. As such a company however is incapable of acting at all except by some agent, we must interpret the statute as having application not only to such agents as perform their functions under some formal and general appointment, but also to such as may be employed only occasionally or in single transactions. Provincial Insurance Co. v. Lapsley, 15 Gray, 262. National Insurance Co. v. Purcell, 10 Allen, 231. It was therefore correctly ruled at the trial, that, so far as any violation of the Gen. Sts. c. 58, may be charged, no facts were disclosed which would prevent the plaintiffs from maintaining this action. It was correctly ruled that the defendants might be held liable even though the plaintiffs did not rely exclusively upon their statements, but were partly induced by other statements or proofs to make the payment. It is sufficient, upon this point, “if,” in the language of the presiding judge, “the plaintiffs so far relied on these statements (of the defendants) that they would not have paid the money had it not been for these statements.” If the representations of the defendants were calculated and intended to induce the plaintiffs to alter their condition by parting with their money, and had that effect, it would be immaterial that other representations and influences were also brought to bear, which may have had a tendency towards the same general result. Edwards v. Marcy, 2 Allen, 486. In one point, however, there appears to have been a material oversight in the instructions given to the jury. It was fully and correctly explained to them, that, in order to be entitled to re- ■ cover, the plaintiffs were bound to show that the defendants, or one of them, signed the written statements, knowing that they were to be used to induce the plaintiffs to pay the insurance on 226 the horse, and intending that they should be so used; that the plaintiffs were thereby induced to make the payment; and that the statements were untrue. It is also correct to say that any suggestion on the part of the defendants that they subscribed and made oath to the truth of these statements without reading them or taking the trouble to inform themselves of their contents, would be of no avail as a defence to this action. But it does not appear by the bill of exceptions (which, even though it may be defectively or imperfectly expressed, must in this respect be our guide) that the jury were also instructed that the plaintiffs, in order to recover, must go one step further, and prove that the defendants knew their statements to be false. This is an action for a deceit, and the requisites for supporting such an action are “ the telling of an untruth, knowing it to be an untruth, with intent to induce- a man to alter his condition, and his altering his condition in consequence, whereby he sustains damage?’ See Brown v. Castles, 11 Cush. 348, and cases there cited. The scienter is a material and vital element in the case, necessary to be alleged in the declaration and proved at the trial. King v. Eagle Mills, 10 Allen, 548. Pearson v. Howe, 1 Allen, 207. For aught that appears in the report, the jury may have acted under the impression that the plaintiffs were not required to prove either that the defendants knew the representations to be false, or that they made those representations to another’s prejudice without any knowledge or information or any grounds for expressing their belief. We do not see that the plaintiffs were required, under the instructions actually given, to prove either of these two things; and they may therefore have obtained their verdict, although there was a complete failure on their part as to one essential element of their case. Upon this point, therefore, the Exceptions must be sustained,