Gould v. John Hancock Mutual Life Insurance

Chester, J.:

We think the evidence presented a fair question for the determination of the jury in the first instance, and, therefore, that the learned trial court was in error in dismissing the complaint. While, the assignment of the policy in question was absolute on its face, yet one of the questions litigated was whether it was in fact given as security only. The plaintiff’s husband testified that the defendant Fisher came to his house in December, 1904, and there had a conversation with Mrs. Werner, and that in that conversation the witness heard Fisher say, with reference to the policy in question, “ that he held that policy for money that she owed him, between $150 and $160, and she claimed that she didn’t owe him any such amount. Well, he said he should hold that policy until he was paid what she owed him; after that he didn’t care what became of the policy after he got his money.” Ross, another witness for the plaintiff, testified in substance to the same effect. ' Fisher, it is true, denied these statements, but they had some corroboration in an expression used by him upon the examination of plaintiff’s counsel as to an interview between him and the insurance agent through whom the policy was issued, in response to a question as to the consideration of the assignment thereof, when he said that “ she (Mrs. Werner) owed me considerable money, and, of course, I took that (the policy) out at the time with the full understanding that it was my property and it passed to me as such for- whatever interest 1 had at the time.” With his evidence and these statements in the case, there was presented a clear question for the jury.

The respondent urges, however, that the plaintiff having put the. defendant Fisher upon the stand as a witness in support of her case, and he having testified that his interest in the policy was absolute, she could not thereafter impeach his testimony by showing that he had made admissions at another time tending to impair his credibility. Such admissions, it is true, could n.ot properly be received if the only purpose of receiving them was to impeach him, but that was not the only purpose, and they were competent evidence against him of the facts contained in such admissions. (Cross v. Cross, 108 N. Y. 628.)

The respondent put in evidence certain receipts and releases, signed by Mrs. Werner, of all claims against him, and also a general release in which she released him from any matter or alleged controversy growing out of any life insurance or policy, or.assignment thereof. The general release bears date the 12th day of June, 1905. ’The plaintiff offered testimony tending to show that at or about that date Mrs. Werner was incompetent by reason of the use of drugs and liquors to make such an instrument, and this evidence was excluded. The defendant having brought this release in as an element of his defense, it was properly the subject of attack by the plaintiff, and'she should .have been permitted to show, if she .could, that Mrs. Werner was incapable of making such a contract at the time she made it. It is not apparent how the other receipts and releases would affect the plaintiff’s right to recover the moneys payable. upon the policy over and above such amounts as the deceased owed to Fisher for moneys loaned and for premiums paid, in case the jury should find that the assignment was not absolute, but was for security only.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.