The Portland daily press., 1895-01-24
THE BOWERS INSURANCE CASE.
Full Text of Judge Putnam's Opinion.

uIi lext OF Judge humans Opln1On.
The following is the full text of Judge
| Putnam's opinion in the case OF Walter
Il. Bowers, administrator ct ais VS.. The
| New York Life Insurance Company:
Circuit Court of the United States. Dis
trict of Maine. In Equity.
| This case was removed from the SUI
| preme Court Of Maine. The removal
| papers were not printed in the record,
| though they should have been. On an
examination of them, it appears the pc
titioner makes proper allegations of the
ing the citizenship of the defendant
corporation, the petition only alleges
| that it is a citizen of the State of New
York, which alone is not sufficient
allegation, but the bill itself alleges
that the defendant Corporation was
duly organized under the laws of the
State of New York, SO that, taking the
record as a whole, jurisdiction is appar-
| ent
There are occasional instances of such
gross injustice happening under the form
OF law, that, except for the power of
Courts in equity, exercised under some
| circumstances, to cancel or reform writ
ten contracts or other instruments, and
even legal proceedings, the common mind
would be shocked, and the law would be
brought into disrepute. On the other
hand if this power was practically made
use of in such way as to cause general
unsettling of transactions done with ap-
parent care and under solemn forms, the
mischief resulting therefrom would be
greater than the injustice which the
power referred to, is intended to relieve
against. Therefore, the Courts have
sai0 that the power is to be exercised
only when the testimony on which its
exercise is based, is clear, unequivocal
and convincing; and they have further
said that it cannot be exercised upon a
bare preponderance of evidence which
V.Budd, IA U.S.154, 1851. In Simmons
Creek Coal Company V. Doran, 142 US.
All, 435, the proposition was put in an
other form, as follows:
"The jurisdiction of equity to reform
written instruments where there is mu-
tual mistake, or mistake on one side and
fraud or inequitabie conduct on the 9th
er, is undoubted; but to justify such
reformation, the evidence must be ufi-
GENTLY cogent to thoroughly satisfy the
mind of the Court"
A striking expression of the practical
rule in this particular, as we'll in equity
as at common law, is given BY Judge
Walton, in Conner v. Pushor, Sc Maine,
300, 303 as follows:
"A deed which can be seen and read is
wall of evidence against oral assaults,
and cannot be battered down by such as
saults, unless the evidence is clear and
strong, satisfactory and convincing"
The complainant in this case does not
desire to rescind the contract, but to re-
form it. THE whole tenorsof the bill,
and the prayers Of it, bring forward
nothing else for our action. Therefore
the discussions which were: had at 4 the
bar, touching the alleged waiver by the
defendant corporation of the strictterms
of its policy as to the time of payment
of premiums, like the points lately I'M
der consideration in Hartford Life An
nuity Insurance Company. unsell, IA
US. 439, and to which the most of proofs
taken seems to relate, and touching
whether this policy was completed as
contract in the State of Maine or in the
State of New York, like those lately I'M
der consideration in Equitable Life AS
surance Society Y. Clements, 40 U S. 226,
and touching the statutory authority of
certain alleged agents, like those lately
discussed in Continental Life Insurance
Company v. Chamberlain, 132 U S. 304,
need not be considered in the view which
we take OF this case. It was said at the
bar that the facts offered in evidence
touching the first of these three ques-
issue. But ii it does, it is SO faint as
not to assist the Court. 1t is all quite as
consistent with the proposition that the
defendant corporation did not intend to
insist on a strict performance of the
provision as to the time of payment
found in it's policy, as with the PROPOSE
ton that the omission of any express al
lowance of grace was for any of the
reasons alleged in the bill. Indeed, it
more naturally comes in line with tae
first hypothesis than with the second.
The bill fails to charge fraud on the
defendant corporation with the positive
ness, or with the detail, which the rules
of equity pleading ordinarily require
However, we do not find it necessary to
criticize them. and perhaps, we cannot
Justly do SO. The citation we have al
ready made from Simmons Creek Coal
Companyn Y. Doran. ubi supra, shows
that relief in reforming written instru-
ments may be granted. not only for
mutual mistake, but where there is a
mistake on one side and Negotiable con-
duct on the other.
Moreover, as is said in Wasatch Mining
Company v. Crescent Mining Company.
14s Z S. 1893, 30, fraud, especially legal
fraud, and inadvertence or mistake,
sometimes run into each other; SO that
it might be difficult under the precise
circumstances of this case for the COM
plainants to allege, in the particular to
which we have referred, more specifically
than they have done.
We stop on the first proposition which
the compliments are bound to maintain
in any view of this case; that is, that
the intestate was himself under mis-
take as to the terms of the policy. We
fail to find in the case on this point the
degree of proof required by the Supreme
Court in the cases we have cited.
Nothing is offered of a direct charac-
ter, except conversation between the
interstate and one Parcher, which &C.
CURED in July, 1892, the policy involved
in this case having issued in March,
1890. On no principle of law is this con-
versation admissible on the ISSUE before
us. No case that we are aware of, has
gone further than Insurance Company v.
Mosley, Wall. 397, where evidence was
permitted to be given of the declarations
of the deceased, who stood as the intes-
tate does in this case, made contempor-
aneously, or nearly SO with the event
which caused his death, relating to the
occurrences thereof. Under the circum-
stances, this was admitted as a part of
the res gestae. Subsequently, in Vicks-
burg & Meridian Railroad, " O'Brien,
40 IT s. 90 the declaration of fhe an