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"Loans. The company at any time will advance upon the sole security of this policy, at a rate of interest not greater than five per centum per annum, a sum not exceeding the amount specified in the table of loan values herein set forth, deducting therefrom all other indebtedness hereon to the company. Failure to repay any such advance or interest shall not avoid this policy unless the total indebtedness hereon to the company shall equal or exceed the aggregate of all unpaid dividends and accumulations and of eighty per centum of the net value of the policy and all additions thereto, and thirty days' notice shall have been given by the company."
"Cash Surrender Value.-After premiums have been paid in cash for three full years, the insured may surrender this policy to the company, together with any dividend additions then outstanding, for a cash surrender value, provided that at the time when such cash surrender value is applied for the premium has not been unpaid more than three months; the amount of such cash surrender value shall be equal to the loan value then available plus five per cent. of said loan value, to which shall be added the cash surrender value of any dividend additions then outstanding; if, however, there is an indebtedness to the company, the amount of such indebtedness will be deducted from the above cash surrender value and the excess will be paid in cash."
"Assignment.-No assignment of this policy shall be binding upon the company unless it be filed with the company at its said home office. The company assumes no responsibility as to the validity of any assignment." "Options on Surrender or Lapse.-After this policy shall have been in force three full years, it may be surrendered by the owner at any time prior to any default or within three months after any default. Thereupon [Here follow several options.]"
"Modes of Settlement.-The insured, or the owner or the beneficiary after the insured's death, in case the insured shall have made no election, may by written notice to the company at its home office, elect to have the net sum payable under this policy upon the death of the insured paid either in cash or as follows: [Here follow three options.]"
On the 20th of April, 1916, the insured, Albert B. Hilton, applied for and obtained a loan upon the security of this policy for $4,500. Previously, without the consent of the plaintiff or her children, he had had the company note upon the policy a change of beneficiary to his own executors, administrators, or assigns; but as the original designation of beneficiaries in the policy was irrevocable, this deviation was entirely without legal effect, and must be disregarded. The loan from the company to Albert B. Hilton was obtained without the knowledge or consent of the plaintiff. In the spring or summer of 1917, there was some domestic difficulty between plaintiff and her husband, and subsequent to that time the plaintiff herself has paid the premiums directly to the defendant company. The company has, against the protest of the plaintiff, applied all dividends since that time to the reduction of the loan to the plaintiff's husband which the company made in 1916, and has demanded that the plaintiff pay the premiums in full, together with the accruing interest upon the loan, and has threatened that, unless such payments were made to date, the policy would lapse for nonpayment.
Albert B. Hilton is a party to this action, and was served by publication, but has not appeared. The plaintiff's children, named as contingent beneficiaries in the policy, are parties to this action and have appeared, but have not answered. The plaintiff in this action seeks, among other things, to enjoin the defendant company from applying dividends upon the policy to reduce its loan to Albert B. Hilton, to
obtain an accounting for past dividends, interest, etc., and to have the rights of the parties to the policy determined.
The only issues before the court at this time are those raised by the answer of the defendant insurance company, and, as between the plaintiff and the insurance company, the litigation relates primarily to the question as to whether the plaintiff was not only the beneficiary, but, as such, the owner of a vested interest in the policy, indefeasible during her lifetime by any act of the insured. The policy does not state upon its face on whose application the policy was issued, or by whom the premiums were to be paid. It is singularly silent in these. respects. The plaintiff's testimony, however, discloses that the policy was issued as the result of negotiations with Mr. Hilton, and was delivered by the agents of the company to him; the plaintiff having testified thus:
"Then Mr. Brinkerhoff, who was the manager of the Metropolitan, suggested that he might get into the New York Life, so that Mr. Brinkerhoff took us there personally, and they told Mr. Hilton, if he could reduce 30 pounds, they would accept him."
"Q. That resulted in this policy being written? A. In this policy being written.
"Q. After the policy was issued by the New York Life, what happened to it? A. Mr. Hilton gave it to me, and told me that was a gift, to me, to protect me in case of his death, and it was for me and my children and their survivors absolutely.
"Q. Did he have the policy in his possession at the time? A. He did. "Q. What did he do with the policy itself? A. He gave it to me."
Premiums from that time to 1917 were paid in this manner: Mr. Hilton made his wife an allowance of $1,000 a month for her personal expenses, and when each premium fell due she gave to her husband a check for the amount of the premium, payable to his order, upon an account which was made up entirely from her allowance from her husband. Mr. Hilton then personally paid the premium. In some later instances Mr. Hilton paid the premiums, and then, upon giving the plaintiff her personal allowance, reduced it by the amount of premiums so paid. The insurance company had no notice, until after the loan was made, of any claimed interest of Mrs. Hilton in the policy, except what appeared upon the face of the policy itself.
 Under these circumstances the contract was clearly between the company and Mr. Hilton. He is the person designated as "owner or holder" in the policy. Travelers' Ins. Co. v. Healey, 164 N. Y. 607, 58 N. E. 1093, affirming 25 App. Div. 53, 49 N. Y. Supp. 29, on the opinion below. In the course of the opinion in that case the following occurs:
"Alonzo H. Doty in May, 1874, took out the policy and paid the premiums for 10 years thereafter, as required by its terms. He thus became the holder and owner of the policy. Garner v. Germania Life Ins. Co., 17 Abb. (N. C.) 7. In common phrase, he who takes out the policy and pays the premiums is the policy holder. People v. Security Life Ins. Co., 78 N. Y. 114; People v. Empire Mutual Life, 92 N. Y. 105."
The provisions of section 52 of the Domestic Relations Law (Consol. Laws, c. 14), relating to the rights of wives in policies written upon
the lives of their husbands, relate to policies in which the contract of the insurance company is with the wife. Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347, 80 N. E. 203, 10 Ann. Cas. 266. The distinction is clearly marked by comparing the opinion in the Bradshaw Case upon the first appeal (187 N. Y. 347, 80 Ñ. E. 203, 10 Ann. Cas. 266) with the opinion in the same case upon the second appeal (205 N. Y. 467, 98 N. E. 851). The difference between the results upon the two appeals is due to the additional evidence, which was before the court on the second appeal, that the written application for the policy was signed by the husband in the wife's name, to wit, "Cora J. Bradshaw, by Robert C. Bradshaw," as a result of which evidence the court held that the contract of the insurance company was with the wife, and that the statute now included in section 52 of the Domestic Relations Law was therefore applicable. Bradshaw v. Mutual Life Ins. Co., 205 N. Y. 467, 98 N. E. 851. The dicta in Holmes v. Gilman, 138 N. Y. 382, 34 N. E. 205, 20 L. R. A. 566, 34 Am. St. Rep. 463, and in Shipman v. Protected Home Circle, 174 N. Y. 398, 67 N. E. 83, 63 L. R. A. 347, stating that, where insurance is effected by the husband for the benefit of the wife, he is held to be the agent of the wife, cannot be followed, in view of the decision in the Bradshaw Case on the first appeal.
The policy in the instant case is similar to the one before the court in Travelers' Ins. Co. v. Healey, supra, and in the Bradshaw Case as it appeared to the court upon the first appeal. The language from the opinion in Travelers' Ins. Co. v. Healey is pertinent:
"By its terms Alonzo H. Doty's life was insured for $2,000, payable upon his death to his wife, Josephine, if she should survive him; if she should not survive him, then to their children surviving him; and, if neither wife nor child should survive him, then to his executors, administrators, or assigns, subject, however, to the eighth clause of the policy, which provided: "That this policy may be converted into cash at the option of the holder at any time after the expiration of fifteen years from the date hereof for the amount indorsed upon the back of this policy.' Thus, if the holder should exercise the option, he would become the beneficiary in the lifetime of Alonzo H. Doty, and the wife and the Doty children would cease to be beneficiaries, or rather never would become beneficiaries at all. The plaintiff by the terms of the policy held out to Alonzo H. Doty two inducements: One, the provision for his wife or children, if he could get along without himself resorting to the policy in his lifetime; the other, that if he could not get along, if poverty or misfortune constrained him, he could himself, after 15 years pass, realize its cash value. Alonzo H. Doty thus had the right to become sole beneficiary of the policy; it was a property right, and he could dispose of it, without consulting either his wife or his children, since whatever interests they had were subject to the contingency that he by exercising the option could make his own right superior and absolute, and thereby cut off their contingent interests."
Thus here Albert B. Hilton, being the owner and holder of this policy, could determine what application should be made of the dividends, could surrender the policy, and could determine upon the mode of settlement after his death.
[2, 3] Although the provision of the policy in respect to loans does not state who had the right to use the policy as security for such a loan, or in other words to whom such loan was to be made, nevertheless it is
clear that the loan was to be made to the owner or holder of the policy -that is, to the one to whom the policy was issued, or his assigns; and this view is strengthened by the position of the clause in relation to the provisions in respect to dividends and surrender. The fact that Mr. Hilton handed the policy over to Mrs. Hilton, saying it was a gift, cannot affect the rights of the insurance company, for the policy provides:
"No assignment of this policy shall be binding upon the company unless it be filed with the company at its said home office."
In view of the fact that the company had no notice of any assignment or transfer to the plaintiff, this clause affords the company ample protection.
 As to the dividends, however, it is conceded by the company that the insured since 1916 has made no election under the clause quoted above, and the dividends must be deemed to have been applied to the purchase of paid-up additions to the policy under the terms of the policy itself.
This view of the merits of the controversy renders it unnecessary to consider in detail the question as to the jurisdiction of the court, and this decision is made upon the assumption that the service by publication on the defendant Albert B. Hilton justifies the court in passing upon the merits of the issue raised by the defendant company's answer. The question reserved relating to the evidence is immaterial, in view of this decision upon the merits.
The plaintiff, therefore, is entitled to a judgment, in so far as the insurance company is concerned, that the company be required to comply with the terms of the policy in respect to dividends, as to all dividends since the dividend declared January, 1916. In all other respects the relief demanded must be denied the plaintiff.
(193 App. Div. 369)
ENSIGN V. TRAVELERS' INS. CO. OF HARTFORD, CONN. (Supreme Court, Appellate Division, Third Department. September 8, 1920.) 1. Insurance 665 (5) —Finding that insured was accidentally burned to death sustained by evidence.
In an action on an accident policy, a finding that the body of one burned in a house was that of the insured, and not a dead body placed there by insured, and that death was accidental, held sustained by the evidence.
2. Appeal and error ~~882 (11)—Omission to prove cannot be complained of by one objecting to the proof.
A party on appeal will be held to the attitude which he assumed at the trial, and in an action on an accident policy, where defendant on the trial prevented plaintiff from introducing evidence to show that one with pneumonia could be actively about, it could not complain on appeal that plaintiff should have shown such to be true.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
3. Appeal and error 882 (11)—That jury rejected expert testimony not to be complained of by one refusing to permit similar testimony of other party.
Appellant could not urge that jury rejected evidence given by its experts in answer to questions which it would not permit respondent's experts to answer.
4. Insurance 655 (2)—Amounts and circumstances of policies proper evidence bearing on question of fraud.
In an action on accident policies, where defendant maintained that a body found was not that of insured, the amounts and circumstances of the policies were proper evidence as bearing on the question of fraud, but the importance of such evidence was entirely a matter for the jury. 5. Weights and measures 3-"Centimeters."
There are 2.54 centimeters in an inch.
6. Evidence 500-Witness giving opinion cannot testify to specific instances.
A qualified witness may express an opinion in respect to the particular matter under investigation, but he cannot on direct examination give specific instances.
7. Evidence 570-Expert testimony may be disbelieved by jury.
Ordinarily expert testimony, even though uncontroverted, may be disregarded by a jury.
John M. Kellogg, P. J., and Henry T. Kellogg, J., dissenting.
Appeal from Trial Term, Columbia County.
Action by Kathryn D. Ensign against the Travelers' Insurance Company of Hartford, Conn. From a judgment for plaintiff, entered on the verdict of a jury, and from an order denying its motion, made on the minutes, to set aside the verdict, defendant appeals. Judgment and order affirmed.
Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.
Rosendale, Hessberg, Dugan & Haines, of Albany (P. C. Dugan, of Albany, of counsel), for appellant.
Mark Duntz, of Hudson (John L. Crandell, of Hudson, of counsel), for respondent.
COCHRANE, J. The plaintiff has recovered a judgment for the loss of the life of her husband, Edwin W. Ensign, on two policies of insurance issued by the defendant. One is an accident and health policy; the other is an accident policy. The only question raised by the defendant on this appeal is that Mr. Ensign is not dead, or, if dead, that he did not accidentally die. After a careful analysis of the evidence, I reach the conclusion that it justifies the finding of the jury that he was accidentally burned to death, as claimed by the plaintiff.
 Mr. Ensign was an undertaker by occupation. He married the plaintiff in the year 1901. They had two children, twin boys, born in the year 1907. In that year he formed a partnership with Mr. Bates, under the firm name of Ensign & Bates. The firm purchased an established undertaking business in the city of Hudson, N. Y., and continued to conduct it until the alleged death of Mr. Ensign on December 12, 1918. In the meantime the firm started and
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