Welsh v. Cochran.

trespass or do any unlawful act. A master is liable in trespass for acts of his servants, commanded or authorized by him. The authority may be express or implied, and a previous command may be proved either by direct evidence or by any legal evidence which will satisfy the jury. Whether a subsequent ratification, a mere approval of the act, will render the master directly liable in trespass is disputed. Bishop v. Montague, Cro. Eliz. 824; 2 Greenl. Ev., § 68. If, however, the party, in whose name and for whose benefit a trespass is committed, with full knowledge of the facts sanction the act and appropriate the proceeds of the trespass, it is evidence for the jury from which they may infer a previous command or authority. Vanderbilt v. Richmond Turnpike Co., 2 Comst. 479; Fox v. Jackson, 8 Barb. 355; Brainerd v. Dunning, 30 N. Y. 211.

The presence of the attorney of the defendants at the time of the seizure and sale of the goods, and his directions to the officers, did not make the defendants liable for the tortious act. In the absence of proof of special authority to an attorney, his acts in directing the levy upon or the taking of goods upon process are in excess of his general powers as an attorney and do not affect or subject his client to liability. Averill v. Williams, 4 Den. 295. The acts and directions of the attorney were not evidence against the defendants. Neither did the directions of the general agent of the defendants, without other evidence, connect the defendants with the trespass. Vanderbilt v. Richmond Turnpike Co.,

supra.

There was some evidence that at some time after the seizure the defendants gave a bond in some form to the marshal, but the bond was not produced and it did not appear for what precise purpose it was given, or against what acts it purported to indemnify the marshal and his deputies, if indeed it was a bond of indemnity at all. Had it been produced it would have been for the court to interpret it, and had it proved to be merely an indemnity for serving the warrant as against the bankruptɔ, it would not have tended to convict the parties to it of a tortious taking of the plaintiffs' goods. Cronshaw v. Chapman, 7 H. & N. 911. Not being produced the circumstance of giving any bond was but slight evidence to connect the defendants with the trespass.

The evidence to show that the defendants received to their personal use any part of the proceeds of the goods sold, or that they did any act with knowledge of the facts and that the goods were taken from the possession of the plaintiffs, or that they were claimed by them, as owners, was very slight. And while the whole evidence may have been sufficient to carry the case to the jury it was not of that conclusive char VOL. XX.-66

Swift v. The Massachusetts Mutual Life Insurance Company.

acter as to justify the taking the question from the jury and disposing of it as a question of law, or as a fact established by incontrovertible evidence. It depended upon deductions and inferences from the facts proved and all the evidence in the action.

The judge erred in refusing the request of the counsel for the defendants to submit this question to the jury. Read v. Hurd, 7 Wend. 408; Mc Morris v. Simpson, 21 id. 610; Bay v. Gunn, 1 Denio, 108; Thur man v. Wells, 18 Barb. 500; Borrodaile v. Leek, 9 id. 611.

The judgment must be reversed and a new trial granted. All concur; except MILLER, J., not voting.

Judgment accordingly.

SWIFT V. THE MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,

appellant.

(63 N. Y. 186.)

Insurance — evidence of prior statements as to health.

In an action by a wife to recover the amount of an insurance policy, issued to her upon the life of her husband, held, that evidence of the declarations of the husband made to third persons prior to the insurance, when speaking of an existing disease, was competent upon the question as to the truthfulness of statements made in the application.

CTION upon a policy of insurance, issued by defendant to plaintiff, upon the life of her husband, W. P. Swift. The defendants alleged misrepresentation and concealment. The policy contained this

clause:

"In case the statements made by, or on behalf of, or with the knowledge of, the said assured to said company, as the basis of, or in the negotiations for, this contract shall be found in any respect untrue, this policy shall be null and void."

In the application signed by plaintiff was the following:

"And I do hereby agree that the answers given to the following questions, and the accompanying statements, and this declaration, shall be the basis and form part of the contract or policy between me and the said company; and I warrant such answers and statements as true and correctly stated, and agree that if the same be not so in all respects, the said policy shall be void, and all moneys which may have been paid on account thereof, and all dividend credits which may accrue therefrom shall be forfeited to said company."

Swift v. The Massachusetts Mutual Life Insurance Company.

In the application it was stated that the insured "is now in good health and does usually enjoy good health."

"The examining physician testified upon the trial that when examining the insured he called his attention to a question in the application and the answer thereto, to the effect that his mother had died of scrofula, and asked if he had ever had that disease or any symptoms of it, that he was aware of, to which the insured answered: "No, not that I am aware of;" and that this answer to a certain extent influenced the witness in recommending Swift as insurable. The application was made August 20, 1870. A witness was called by the defense, who testified that in the winter of 1869-1870 he noticed that the insured was not looking well, and that he walked lame, and inquired of him what was the matter. The witness was thereupon asked to state what answers the insured gave. This was objected to and objection sustained, to which defendant's counsel duly excepted. Another witness testified that in the fall of 1869 he saw a sore on the right side of the insured. The witness was then asked if the insured told him what was the cause of it, what kind of a sore he called it. This was objected to as hearsay evidence. Defendant's counsel stated the evidence was offered for the purpose of showing that the insured had scrofula prior to the insurance, to his knowledge, and that his statement to the contrary was knowingly false. The objection was sustained, and defendant's counsel excepted. Another witness testified that in the fall of 1869 he noticed that the insured was lame, and that he told witness what was the cause of it. The witness was asked what the insured stated as the cause. This was objected to, objection sustained, and exception taken.

The insured died in May, 1871, of scrofulous disease.

The General Term affirmed a judgment entered for plaintiff on a verdict, and defendant appealed.

George Bliss, for appellant. Evidence of declarations of a party insured, made prior to the insurance to various third parties, when speaking of an existing disease, is proper upon the question of the truthfulness of statements made by him to the examining physician. Kelsey v. Un. L. Ins. Co., 35 Conn. 225; Aveson v. Kinnaird, 6 East, 188; Swift v. Mass. Mut. L. Ins. Co., 2 N. Y. Sup. 308; Mut. B. L. Ins. Co. v. Robertson, 59 Ill. 123; S. C., 14 Am. Rep. 8; Wheelton v. Hardisty, 8 E. & B. 255; Mech. and Man. Mut. Ins. Co. v. Wash. Mut. Ins. Co., 1 Hand (Ohio), 408; May on Ins.; Sweete v. Fairlee, 6 C. & P. 1; Higbie v. Guard. Mut. L. Ins. Co., 53 N. Y. 603; S. C., 2 Ins. L J. 761; 8 Alb. L. J. 761; Matteson v. N. Y. C. R. R. Co., 35 N. Y. 487

Swift v. The Massachusetts Mutual Life Insurance Company.

The answer of the insured as to the physician was fatally defective. Huckman v. Fernie, 3 M. & W. 505; Cazenove v. Brit. Eq. As. Co., 6 C. B. (N. S.) 437; S. C., 5 Jur. (N. S.) 1309; Morrison v. Muspratt, 4 Bing. 60; Maynard v. Rhode, 1 C. & P. 360; In re Gen. Prov. L. Ass. Co., 18 W. R. 396; Everett v. Desborough, 5 Bing. 503; Corn v. Am. L. Ins. Co., 64 Barb. 81.

Geo. Bowen, for respondent. Evidence of statements of the insured as to the state of his health, made to others than the examining physician or the defendant, was not competent. Rawls v. Am. L. Ins. Co., 36 Barb. 357, 364; 27 N. Y. 282, 290; Bliss on Life Ins. (1st ed.), § 374; Swift v. M. Mut. L. Ins. Co., 2 N. Y. Sup. 302. It was immaterial whether the insured concealed the fact that Doctor Hutchins was his family physician. Redfield v. C. P. Ins. Co., 56 N. Y. 354.

FOLGER, J. [After discussing the facts as presented on exception to the denial of a motion for a nonsuit.]

The defendant offered to prove statements, made by the subject insured to different persons prior to the insurance, as to his own health, and the cause of ailments he had and showed, at the time of making those statements. The proof was excluded. It is to be observed that these statements were alleged to have been made prior to the insurance, and in immediate reference to his acts, and to facts in his then bodily condition, and so do not fall within the ruling in Rawls v. Am. L. Ins. Co., 27 N. Y. 290, where it was held that the holder of a life policy was not to be affected by hearsay declarations of the subject of the insurance, made after the policy was issued, of facts alleged to have existed before it was issued. The plaintiff in the case before us had made a written declaration, that the subject of the insurance was in good health at the time of making her application for insurance, and that he did usually enjoy good health. It was made a condition of the contract, that if the statements made by or on behalf of the insured, as the basis of or in the negotiations therefor, should be found to be untrue in any respect, the policy should be void. The testimony which was received in the case tended to show that the subject insured died of a scrofulous disease, and the jury might have so found. Hence an issue in the case, was the real state of health of Swift at the time of the application for the insurance, and whether he was then the subject of scrofula, or had ever had symptoms of it to his own knowledge. He had been asked by the examining physician, in regard thereto, and had answered in the qualified negative, that he was not aware thereof. It

Swift v. The Massachusetts Mutual Life Insurance Company.

is plain that if he was aware thereof, the information which he had was of essential importance to the defendants, and it is equally plain that his denial that he was aware thereof was a material representation, and that if it was untrue it was a concealment seriously affecting the validity of the contract. It is equally plain that the defendants had the right to show, not only how the fact was, but that Swift knew how it was. Το ordinary apprehension it is a ready, and generally a reasonably conclusive way of showing a person's knowledge of his bodily condition, to prove his declarations concerning it, concurrent with some fact or act in relation thereto. It is conceded that acts, doings and appearance, as that the person was lame, was pale and haggard, was weak, may be shown. It is a rule that when an act is done, to which it is necessary or important to ascribe a motive or a cause, what was said by the actor at the time, from which the motive or cause may be collected, is part of the res gesta and may be given in evidence. Ambrose v. Clendon, Cases temp. Hardw. 254; Bateman v. Bailey, 5 T. R. 512; Gilchrist v. Bale, 8 Watts, 355-358; Barnes v. Allen, 1 Keyes, 390; Caughey v. Smith, 47 N. Y. 244. And this is so sometimes when the actor is not a party to the suit, as well as sometimes when he is. When words go with an act the nature of which is the subject of inquiry, they are taken as original evidence, because what is said at the time is legitimate, if not the best, evidence of what was passing in the mind of the actor. 1 Phil. on Ev. *185; and see Thomas v. Connell, 4 Mees. & Wels. 267, where declarations of a bankrupt were received to show knowledge by him of his insolvency, the fact of his bankruptcy being proven aliunde. So when one is lame, or weak, or otherwise in bad bodily plight, his statement as to the cause, character and degree thereof, made at the time of the physical exhibition of the infirmity, would seem to be a legitimate mode of reaching his knowledge of his own condition.

But it is said that testimony of such declarations, in cases like this, is hearsay evidence, and may not be received against another than the actor himself. The cases above cited show that this is not always the case, but that where there is a legal relation between the actor and another, so that the act and the declaration respecting it, do have a legitimate connection with that other, and a natural and legitimate effect upon him and his legal relations with others, the declarations, when a part of the res gestæ, may be received in evidence. There is not perfect agreement in the books upon the question, whether the declarations of the subject of a life insurance as to state of health, made to others than the insurers or their agents, may be received in evidence against the