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Vol. I.)

Morey v. NEW YORK Life Ins. Co

(No. +

government. It could not have been intended, therefore, to expose them to the hazard of unfriendly legislation by the states, or to ruinous competition with state banks. On the contrary, much has been done to insure their taking the place of state banks. The latter have been substantially taxed out of existence. A duty has been imposed upon their issues so large as to manifest a purpose to compel a withdrawal of all such issues from circulation. In harmony with this policy is the construction we think should be given to the thirtieth section of the act of Congress we have been considering. It gives advantages to national banks over their state competitors. It allows such banks to charge such interest as state banks may charge, and more, if by the laws of the State more may be charged by natural persons. The result of this is that the defendants, in receiving nine per cent. in

, terest upon the loans made by them, have not transgressed the act of Congress, and consequently they are under no liability to the plaintiff.

The judgment is affirmed.

CIRCUIT COURT OF THE U. S. - SOUTHERN DISTRICT OF

MISSISSIPPI.

[NOVEMBER TERM, 1873.]

LIFE INSURANCE.

TENDER OF

REPRESENTATIONS OF AGENT.
OVERDUE PREMIUM.

SARAH L. MOREY v. NEW YORK LIFE INS. CO.

1. Where the local agent of a life insurance company, on receiving payment of the first

premium due on a policy, represented to the assured that the company was in the habit of giving thirty days' notice to its policy holders of the time when each premium falls due, and promised that he would give such notice, and the assured died two days after the second premium fell due, no such notice having been given to him, and the proof failed to show that the agent had any authority to make

such an agreement, it was held that the beneficiary could not recover on the policy. 2. Where the company's receipt for the premium was not received by the local agent

to whom it was to be paid, until two days after the death of the insured, it was held, under the circumstances above stuted, that the beneficiary could not recover

on the policy; otherwise if the premium had been tendered before it frull due. 3. Where by express agreement, or by the course of business between the parties, it

is understood that payment will be made to the local agent, and no notice has been given in sufficient time that payment shall be made at the office and principal place of business stipulated in the contract, a tender of payment to the local agent, whether received by him or not, will excuse the policy holder and prevent a forfeiture.

THE facts are stated in the opinion.

HILL, J. This action at law was brought in the circuit court of Madison County, and removed into this court, to recover the amount of a policy

Vol. 1.)

MOREY v. New YORK LIFE INs. Co.

(No. 4.

of insurance issued by the defendant on the first day of April, 1871, for the sum of five thousand dollars, payable to plaintiff upon the death of her late husband, John B. Morey, upon the payment of $197.90 then made, and the same amount to be paid thereafter on the first day of April of each year during the continuance of said policy, with the usual condition annexed, that if said premium should not be paid on or before the first day of April of each year, the policy should become void, and all payments theretofore made become forfeited to defendant.

The plea is that the policy became void under this stipulation by reason of the non-payment of the premium due on the first day of April, 1872; to which the plaintiff replies : First, that when said John B. Morey made application for said policy it was to one Morey, a local agent of defendant, doing business for defendant in the city of Canton; that at the time he stated to said agent that he feared he would forget the time when the premiums would become payable and fail to make them in proper time, and thereby the policy would become forfeited ; that the said agent stated, as an inducement to said John B. to take said policy, that the company was in the habit of giving thirty days' previous notice of the time, and that he would give the notice and save the forfeiture ; and, secondly, that it was understood that payment would be made to the local agent in Canton ; that, at the time the premium fell due, the agent at Canton had not been furnished with the printed premium receipts, without which he was not authorized to receive payment; that the failure to give the notice and to furnish the receipt was a waiver of the right to a forfeiture of the policy.

A jury being waived, the questions of both law and fact are submitted to the court.

The only facts shown by the proof, and necessary to be stated for the application of the rules of law, are as follows :

Morey, the agent of the defendant, did make the statements to John B. Morey, at the time the application for the policy was made, as stated in the pleadings; the advance premium was paid on the delivery of the policy ; no notice of the time the premium fell due was given ; John B. Morey died on the 3d day of April, two days after the premium fell due, without having paid or tendered the same to any one.

On the 5th, payment of the premium was tendered to the agent at Canton, and refused, for the reason that John B. Morey had died on the 3d.

That the premium receipt was not forwarded to the general agents at Vicksburg until the 4th, and not forwarded to the local agent until the next day.

The question upon the pleadings and proof is, did the want of notice of the time of payment, and the absence of the receipt in the hands of the local agent, excuse the payment of the premium upon the day it became due, and thereby avoid the forfeiture stipulated in the contract ?

The policy, and the conditions annexed to it, constituted the contract, and must be held binding on both parties to it, unless its conditions have been waived by some act or omission of the party against whom it is sought to be enforced, or by the authorized agent of such party.

The proof fails to show that the agent, Morey, had any authority to engage that notice should be given ; indeed, none such is claimed ; but it

VOL. I.

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Vol. I.)

MOREY 0. NEW YORK LIFE IN8. Co.

[No. 4.

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is claimed that, being the agent, it was a fraud in him to make such a promise, as it misled the assured, and induced him to take the policy which he would not otherwise have done ; but it is apparent from the proof that he did not make the promise as agent, or pretend to bind the defendant, but only made it as a friend and relative of John B. Morey ; it was a mere personal promise, for the fulfilment of which he could only look to him who made it ; Morey, the agent for this purpose, was more the agent for the assured than the insurer; so that upon the facts, this want of notice cannot avail the plaintiff.

The remaining question is, did the failure to place in the hands of the agent at Canton the premium receipt on or before the time of payment, waive and excuse payment on that day? The conditions of the policy require payment at defendant's office in the city of New York, unless a different place is stipulated for in writing between the parties, or to an agent having for delivery a printed receipt, signed by the president of the company, or other officer mentioned.

The advance payment was made to the local agent in Canton upon the delivery of the policy. The fact that the premium receipt for the second payment was forwarded to the local agent in Canton shows that that was the place where payment was expected to be made, and where it doubtless would have been made but for the death of said John B. Such evidently being the understanding between the parties, I am satisfied that had the tender of the amount due been made to the local agent at Canton on the day and within the time stipulated, the forfeiture claim could not have been maintained; but, unfortunately for the plaintiff, this was not done.

; I cannot accept the position as correct, that nothing can avoid the forfeiture but an agreement of waiver of payment made by the principal officers of the company in New York, or by actual payment or fender of payment there, or to a local or other agent having the premium receipt, signed as provided for. Where, by an express agreement or by the course of business between the parties, it is understood that payment will be made to the local agent, and no notice has been given in sufficient time that payment shall be made at the office and principal place of business stipulated in the contract, a tender of payment to the local agent, whether received by him or not, will excuse the policy holder and prevent the forfeiture, To hold otherwise would open the door to the grossest frauds upon the part of these foreign insurance companies. The company, when its coffers have been in part filled with the hard earnings of the policy holders, could withhold the receipt from him who had been depriving himself and family of the comforts, if not the necessaries of life for years, to provide, as he supposed, something for his helpless family when he shall have been laid in the grave; and when he comes, perhaps, on the last moment in which payment can be made, he is for the first time informed that he must pay in New York, or all he has paid will be forfeited — a thing which it is impossible for him to do, and which would be gross injustice. It is said, and is in proof, that these receipts are furnished to the local agents through the general agency for the state, and if the agents' accounts at the principal office are not satisfactory, the receipts are withheld. The answer to this is, that it is a thing about which the policy holder is not presumed to know anything; it surely cannot be held that

Vol. I.)

PALMER v. RICHARDSON.

(No. 4.

he is responsible, or to be affected by dereliction in duty of the company's agent, over whom he has no sort of control. John B. Morey is not presumed to have known of the absence of the receipt, and its absence could have had no influence upon his unfortunate neglect; and however much it is to be regretted that the widow and orphan shall be deprived of the maintenance and support a kind husband and father intended for them, the rules of law must be applied to the facts, which being done, necessarily results in favor of the defendant. Judgment for defendant.

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1. In order for the plaintiff to recover in an action for malicious prosecution, the bur

den of proof is upon him, to show clearly by a preponderance of evidence that the defendant did not have probable cause to institute the criminal prosecution against him. Good faith on the part of the prosecutor is always a good defence, unless it appear that he closed his eyes to facts around him which would have been sufficient to convince a reasonably caulious man that no crime in fact had been com

mitted by the person about to be prosecuted. 2. The fact that the defendant before instituting a prosecution alleged to be malicions

and without probable cause, had honestly laid all the facts before counsel and followed his advice, is pregnant evidence to show the existence of probable cause.

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CRAIG, J. This was an action on the case brought by Michael J. Richardson against Eugene P. Palmer, in the circuit court of Cook County, to recover for an alleged malicious prosecution, instituted by the latter against the former. The cause was tried by a jury and a verdict rendered in favor of the plaintiff for $1,000. A motion for a new trial was made and overruled, and judgment entered upon the verdict, from which the defendant appealed to this court.

A reversal of the judgment is asked mainly on the ground that the verdict is contrary to the weight of the evidence.

It seems to be difficult for a jury to comprehend that an innocent person may be arrested for a criminal offence, and, at the same time, the law afford no redress against the person who caused the arrest and prosecution, and yet experience teaches us this is not an uncommon occurrence.

While it is a great hardship that an innocent person should be prosecuted for a criminal offence, yet it is far better for the preservation of peace, order, and the well-being of society, that this should occasionally occur, than that the citizen should be deterred from instituting criminal prosecutions for a violation of the laws of the land.

In order for the plaintiff to recover in this case, the burden of proof was upon him to show clearly, by a preponderance of evidence, that the de

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Vol. I.)

PALMER v. RICHARDSON.

[No. 4.

fendant did not have probable cause to institute the criminal prosecution against him.

R088 et al. v. Innis, 35 Ill. 487. Good faith on the part of the prosecutor is always a good defence, unless it appears that he closes his eyes to facts around him, which are sufficient to convince a reasonably cautious man that no crime in fact had been committed by the person about to be prosecuted.

Probable cause has been defined by this court to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence charged. Richey v. McBean, 17 Ill. 65; Jacks v. Stimp8on, 13 Ill. 701 ; Ro88 et al. v. Innis, 35 Ni. 505; Collins et al. v. Hayte, 50 Ill. 353.

The main question for consideration in this case then is, Did the plaintiff, by his proof, tested by the correct rules of law that govern this class of cases, make a case which justified the jury in rendering the verdict they did ?

Upon a careful examination of the facts in this case, as shown by the record, we have arrived at the conclusion that the verdict is manifestly contrary to the weight of the evidence, and that the jury did not comprehend the law as applicable to the evidence in the case. The prosecution instituted by the defendant, Palmer, which the jury found to be malicious and without probable cause, so far as it is material to state them, grew out of these facts : About 4 o'clock on the morning of the fire in Chicago, October 9, 1871, the plaintiff and one Carragher, with a horse and wagon, went to the store of Hotchkin, Palmer & Co., which was about to be burned, and loaded their wagon with valuable goods, worth from $1,500 to $2,000, and started to the place of business of plaintiff. As the wagon started, Palmer's attention was called to it by his clerk, and he followed and got upon the wagon ; the three men had not proceeded far when a controversy arose between Palmer and Richardson in regard to where the goods should be taken and the amount of compensation Richardson should receive for hauling the goods; angry words were exchanged, and the contest was excited. Palmer finally called upon a man who was passing for assistance. After this, Richardson took the goods to a place of safety where Palmer wanted them taken ; the goods were unloaded ; Richardson kept back a piece of beaver-cloth as pay for hauling, which he insisted Palmer agreed he should have. Palmer refused to let him have this, and the evidence of Palmer and Carragher shows that Richardson took off this piece of goods by force.

The evidence shows that about the time these goods were loaded in the wagon by Richardson and Carragher, several lots were stolen as they were carried out of the store and piled up; that Palmer was not acquainted with Richardson.

Palmer and his clerk testify that Richardson had no authority to load his wagon with goods. Ludlow, the clerk, swears that he had entire charge of taking care of and saving the goods, and that he gave no authority to Richardson to take or haul goods; that he had no knowledge of Richardson until about the time the wagon started to drive off with the load; he saw it and directed Palmer's attention to the wagon, and as it moved off Palmer got upon it. That plaintiff and Carragher attempted

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