McKindly v. Drew

Munson, J. The plaintiff was permitted to testify that after paying the second premium and before the third became due, he read his policy through for the first time because of something he had heard, and that, not being able to understand it, he consulted counsel, and learned that it did not contain the guaranty nor permit the withdrawal which the defendant represented it did. The defendant claims that it was error to permit the plaintiff to state what he learned from his counsel. In view of the plaintiff’s payment of the second premium it was permissible for him to show when he first learned of the deceit; and while this might have been done without repeating the statement of counsel, there was nothing prejudicial in the repetition, for it covered no more than was apparent from the policy, upon a construction conceded by the defendant. One John H. Nelson was produced by the plaintiff, and testified that having just made application at his own house for apolicyliketheonein question, he went with the defendant at his request to the plaintiff’s house, and was present at the opening of the interview between the parties. He afterwards testified, on cross-examination as is apparent from the question objected to, that he told the plaintiff what he thought of the policy. The plaintiff was then permitted to ask the witness what he told the plaintiff that he thought of it, and the witness replied that he told him that he had taken out the same policy himself, and that he thought it was a good investment. If the allowance of the question was a technical error, it is certain that the answer cannot have harmed the defendant. The plaintiff was permitted, as a basis for estimating the damages, to show by a former representative of the Equitable Insurance Company that the cheapest policy that that company would have issued to insure the plaintiff for the two years in question would have cost a certain sum. Plaintiff’s counsel afterwards conceded that in arriving at the damages the cost should be figured at a larger sum; [141] and the case was submitted to the jury upon the basis of this concession, and a verdict was returned accordingly. The evidence may have been improperly admitted, but if inadmissible it was rendered harmless by the action subsequently taken. In giving his account of the interview in which the representations declared upon were claimed to have been made, the defendant testified that he told the plaintiff that the policy would be worth a certain sum “judged by the past experience of the company.” The plaintiff was then permitted to draw from the defendant that the first policy of this kind that -he knew of the company’s issuing might have been as late as 1888, and that at the time he took plaintiffs application he did not know any policy of that class had matured or run twenty years, and that he could not have told that any had run ten years. The defendant claims that this was error because the representation so discredited was not one declared upon. But we think the plaintiff was clearly entitled to discredit the defendant by cross-examination upon any matter which he had testified to having stated in connection with the representations complained of. The defendant claims it was error to permit the plaintiff to put in evidence certain parts of a rate book of the Mutual Life which the defendant had produced as the one he used in his interview with the plaintiff. The book being referred to and not produced, the exception need not be considered. The court could not have complied with the defendant’s first two requests to charge without disregarding our former holding in the same, case as reported in the 69 Yt. 210. The defendant’s claim that the ease presented by the exceptions is not within that holding is not sustainable, as will sufficiently appear from a comparison of the cases. The defendant was not entitled to a compliance with his third request as drawn, nor to more of the instruction asked than was given. It was not true that the plaintiff [142] could not Have recovered, if it were found that the defendant read the policy to him. There can be an actionable deceit concerning a technical writing whose terms are made known. Bigelow on Fraud, 507; Calkins v. The State, 13 Wis. 389. The further charge upon the subject, which is criticised in the brief, was not excepted to. Judgment affirmed.