McNicholas v. Prudential Insurance Co. of America

Loring, J. [After the foregoing statement of the case.] The plaintiff’s contention is that by force of each weekly payment the policy continues in force for the coming week. Consequently, if the disputed payment is to stand, the last payment made was for the premium due July 27, by which the policy was continued in force until August 3, and the policy would not be four weeks in arrears until August 31, three days after the date of the death of the insured. This has not been con [308] troverted by the defendant. ■ Nevertheless it contends that as matter of law the defendant should have had a verdict. 1. The defendant first insists on this testimony of the plaintiff “ during the time she held the policy there were four or five different times at which she was at least six weeks behind in her payments of premiums,” that the policy had as matter of law lapsed before the controversy with Sterling. When the four or five lapses testified to occurred did not appear. It did appear however that all subsequent premiums had been paid except the four or five last ones. The receipt of these subsequent premiums by the company itself after the policy had lapsed would be a waiver of the lapse. Hodsdon v. Gruardian Ins. Co. 97 Mass. 144. Shea v. Massachusetts Benefit Assoc. 160 Mass. 289. In the case at bar the jury were warranted in finding that the subsequent premiums had reached the company although paid to the company’s agents. 2. The next exception is to the admission of a payment not entered on the book agreed upon. The evidence was admitted without any explanation as to why it was not entered in this book. This was wrong. Parties have a right to make an agreement as to the evidence which shall be produced, and such an agreement, when made, will be enforced. It was laid down in United States v. Robeson, 9 Pet. 319, 327, that “where the parties in their contract, fix on a certain mode by which the amount to be paid shall be ascertained, as in the present case, the party that seeks an enforcement of the agreement, must show that he has done everything on his part which could be done to carry it into effect. He cannot compel the payment of the amount claimed, unless he shall procure the kind of evidence required by the contract, or show that, by time or accident, he is unable to do so.” Further if on proof of the fact that it is through the fraud of the defendant’s agent that the evidence agreed upon for the payment in question is not forthcoming, we assume (without deciding) that the payment may be otherwise shown. The original error in admitting evidence of this payment was not cured by what subsequently appeared in evidence. The plaintiff testified that she paid the fifteen cents in question to the defendant’s agent Sterling, and that she told the assistant superintendent that the agent to whom she said she [309] made the disputed payment had “cheated” her. A plaintiff in such a case as that now before us does not make out a case of fraud, accident or mistake by testifying that a payment has been made and then showing that the payment so made is not entered on the book. The admission of evidence of this disputed payment under these circumstances was wrong, and the exception to it must be sustained. 3. We do not find it necessary to consider whether the second condition authorizes a compromise with the person selected by the company to receive payment, as was decided in Brennan v. Prudential Ins. Co. 170 Penn. St. 488. It appears on the uncontradicted testimony of the plaintiff that she signed the receipt without reading it, and we are of opinion that the jury were warranted in finding that the defendant’s superintendent fraudulently concealed the nature and contents of it from her, (see Freedley v. French, 154 Mass. 339; Snow v. Alley, 156 Mass. 193; Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447,) and that she supposed it to be a payment on account, in which case she was not bound to return it before bringing suit. Drohan v. Lake Shore & Michigan Southern Railway, 162 Mass. 435. 4. We are of opinion however that there was no evidence that the plaintiff made to the defendant’s agent Sterling the payment in dispute between them. She did not state on her direct examination how this payment was made. But on cross-examination she testified “ that the payment in dispute was left by her with some one of the children, to be delivered to Sterling when he called.” There was ncr evidence that the fifteen cents in question left with one of her children was paid by the child in question to Sterling. Only one of the children was put on the stand, and she was not questioned on this point. Fxceptions sustained.