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equitably entitled to the proceeds of a policy, after loss, to the extent of his
assignor's interest, and the insurance company, with notice of such assignee's
claim, is liable for his share of the proceeds even if the whole amount has been
paid over, after such notice, to the insured. 1870. OromtoeU v. The Brooklyn
Fire Insuranee Co. (44 N. Y. 42), IV, 641.

114. Jadgment creditor not entitled to insoranoe money. A., having
obtained a judgment against 6., levied execution upon premises owned and
insured by B. Subsequently the premises were destroyed by fire. Held, that
A. was not entitled to the proceeds of the insurance policy. 1871. PUimp-
ton V. Farmert^ Mutual Insurance Co. (48 Vt. 497), V. 297.

116. Apportionment of loss. The defendant insured a specific parcel of
property, by a policy permitting other insurance, and providing for an appor-
tionment of the loss, in case of other insurance. The same, together with other
property, was subsequently covered by other policies for an entire sum less



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204 mSURANCB.

than the aggregate valae of the property iosored by all the polidea. There
was a total loss of the whole property covered by all the policies. Held, that
tbe sum insured by the latter policies was to be distributed among the several
parcels in the proportion which that sum bore to the total value of all the par-
cels ; and that the amount of insurance on the specific property being leas than
ita value, there was no over-insurance, and, consequently, no occasion for any
apportionment. 1872. Ogden v. Bkut Biher Itmiranee Oo, (50 N. Y. 388),
X, 492.

116. For the purpose of apportioning the loss in case of over-insurance

where several parcels are insured together, by one policy, for an entire sum,
and one of the parcels is insured separately by another policy, the sum insured
by the first-mentioned policy is, in case of a destruction of the entire property,
to be distributed among the several parcels, in the proportion which the sum
injured by that policy bears to the total value of all the parcels. lb.

9. Mutual company.

117. Iiien of polioy. A member of a mutual insurance company held a
policy on buildings and property containing a provision that the buildings
insured and the land on which they stood became pledged, by the insurance, to
the company, and that the company should have a lien thereon for the premium.
The insured died in debt for the premium, having devised the property
insured, with the land, to his widow, who conveyed it to Mathers, the latter
not having notice of the lien of the insurance company. HM, that the lien
of the policy could not be enforced after the property had passed into the
bands of a bona fide purchaser. 1869. Kentfucky Farmtrit Mutual Inguranee
Oo. V. Mathers (7 Bush. Ky. 28), III, 286.

118. A polioyholder in a mutual insurance c(»npany is presumed to know
such rules as are contained in the charter and by-laws, but not the business
regulations and instructions to agents adopted by the officers of the compimy.
1870. Walsh V. Etna Life Insurance Co. (80 Iowa, 183), VI, 664.

119. Assessments on premium notes — proof or loss. In an action by a
mutual fire insurance company for the amount of an assessment upon a pre-
mium note, AeM, that proof of a resolution of the company's board of direc-
tors, levying the assessment to meet the indebtedness of the company, waa
insufficient to establish the liability on the note, without further proof that the
losses and expenses which authorized the assessment had actually occurred.
1872. Pacific Mutual Insurance Co. v. Quse (49 Mo. 329), VUI, 182, andiwtd, 185.

IV. Life insurance.
1. Contract, when complete.

120. Policy when attaches — death before deliTery. An application was
made to the agent of defendant for a policy of insurance on the life of plain-
ti£E 's husband, the applicant paying $50, according to the rules of defendant,
to be applied on the first year's premium^ if the insurance should be effected.
The application was forwarded to defendant's office, and a policy was made
out and sent to the agent for delivery ; but the insured having died two days



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mSURANOB. 205

afler the policy was iesaed bat before its deliverj, the agent refused to deliver
it, although the balance of the premiam was offered to be paid. HM, that the
policy had attached. 1871. C(H)per Y.PaeiJU Mutual Ituurcmee Company of CcUi-
fomia (7 Nev. 116), Vm, 705.

121. DeliTfliry of polloy. H. made application to a life insurance company,
through its aathorized agent, for an insurance upon his life for the benefit of
his wife, the plaintiff, and soon after left the State upon a temporary absence.
During his absence the company prepared for him a policy of Insurance and
sent it to the agent with instructions to deliver the same to H. on receipt of the
first premium. The agent of the company took the policy to H.'s place of
business where he found his son, who had been left in charge of the business
of H., to whom he exhibitec the policy, informing him that the first premium
of $100 was to be paid in cash, and a note for about the same amount given to
the company. His son said he could not make the cash payment, but gave his
father's note, as required by the agent, who took the same and retained it,
together with the policy, saying he would keep the policy good until his father
came home. About two weeks after H. died, never having returned. HM,
that there was no actual or constructive delivery of the policy ; that the acts
of the company in executing a policy of insurance and forwarding the same to
its agent to be delivered to the insured on receipt of the premium were not
evidence of a contract to insure ; that, while these acts were indicative of an
acceptance of the application of H., they were evidence of an acceptance only
as the basis of a contract to be entered into by a policy to be made and deliv-
ered upon payment of the premium by the other party. 1871. Heiman v.
Phania Mutual L^fe Imurance Co. (17 Minn. 153), X, 154.

122, Ooantenrigning policy. The wife of N. took out a policy on his life in
a life insurance company for which he was agent. The receipts for the pre-
miums on policies of this company were in the form of renewal certificates,
and contained a condition that the receipt should not be valid and binding
on the company until the premium was paid and the receipt countersigned by
the agent. After the death of N., receipts for the several premiums were
found among his papers, but they were not countersigned by him. Held, that
the receipts were prima fade evidence, in an action on the policy, of the pay-
ment of the premiums. 1870. Norton ▼. Phctnw Mutual lAfe ln$, Co, (86
Conn. 508), IV, 98.

123. A policy of life insurance, which provides that it shall not be in

force until countersigned by the agent, is invalid until so countersigned, even
though the agent is himself the party assured. 1860. Badger v. American
Popular Life Ine, Co. (108 Mass. 344), IV, 547.

124. Pa3rnieiit of premium — Ibrfettare. A life insurance policy was issued
to plaintiff's decedent in April, 1866, expressed to be made in consideration of
a premium, already paid, and of a like sum to be annually paid during the con.
tinuance of the policy, and providing that the policy should " not talce effect
until the premium was paid," and that the policy should be forfeited " in
case any premium due upon the policy should not be paid at the date when
payable.'* The first premium was paid partly in cash and partly in promissory



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206 mSURANOE.

notes, but the notes were not paid, and the insured died March, 1867. Held,
that the policy had taken effect, and that the non-pajment of the notes did not
bar plaintiffs recovery, because the "forfeiture" clause referred to premiums
after the first. 1869. MeJJUiUr v. New England MtU. Im, Oo, (101 Mass.
558), III, 404.

126. Tetider of premium after death — usage. A policy of insurance was
issued on the life of H., containing a p^^«f on that no insurance should be bind-
ing untU the actual payment of the annual premium. H. paid the premium
for several years ; but on a day when the annual premium was due, and while
on his way to pay the premium, he was struck with paralysis and died.
Within a few days the premium was tendered by the wife of H., but refused.
In an action on the policy, it was admitted that there was a usage and agree-
ment between the comi)any and the insured to receive the premium within a
reasonable time after due. Beid, that the company was liable on the policy.
Huirr and Leonabd, CO., dissented. 1870. Howell v. The Kniekerboeker Life
ln$. Oo. (44 N. Y. 276), IV, 675.

2. Agents.

126. When company bound by acts o£ Where the agent of a life insur-
ance company is authorized to receive applications from policy-holders for per-
mits to reside in restricted territory, luid to receive, money therefor, but is not
authorized to grant such permits, and, by his acts and representations, a policy-
holder is induced to believe that, on the payment of the money for a permit,
it was granted, the company is estopped from denying the force of such a per-
mit. 1870. WaUh v. jEtna Life Ins, Co. (80 Iowa, 188), VI, 664.

127. Notice to. Where an insurance company transacts business through
an agent having authority to solicit, make out and forward applications for
insurance, to deliver over policies, when returned, and to collect and transmit
premiums, notice given to such agent, when engaged in procuring an applica-
tion, will operate as notice to the company, and the company will be bound by
acts then done by the agent, in respect to the business which he is transacting.
1871. HUler v. The Mutual Benefit Life Insurance Co. (31 Iowa, 216), VII, 122,
and note, 128. See supra, pi. 1.

128. An untrue or fraudulent statement of a fact material to the risk in the
application for the policy will not defeat a recovery against the company, if
such company or its agent was informed of, and knew the truth in regard to
such fact, and afterward received the application, the premium money and
notes, and issued the policy. Jb.

129. WaiT«r — receipt of premium. The receipt of the premium on a pol-
icy of life insurance by an authorized agent of the company is a waiver, bind-
ing on the company, of a forfeiture for violation of a condition against residing
in a restricted district where such violation is known to the agent at the Ume
of the receipt of the premium. 1870. Walsh v. .^na Life Insurance Co. (80
Iowa, 138), VI, 661

8. BopresentaUons and concealments.

130. BSat«riality o£ A policy of life insurance provided that '* if any of
the declarations or statements made in the application for this policy, upon the



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INSURANCE. 207

faith of which this polic7 is iflaaed, shall be found in any respect antrue/' the
policj shall be void, and purported to be made bj the insurers in consideration
of the representations made to them in the application for this policy. JSfeld,
that the answers to the questions in the application were representations and
not warranties, and that their untruth was matter of defense to be pleaded
and proved by the insurer; Jield, also, that such representations are made con-
clusively material by the terms of the policy. 1871. Price v. Phomxx MutuaX
Life ln». Co. (17 Minn. 497), X, 166.

131. Where arronaous answer does not affaot risk. A policy of life insur-
ance was issued " upon the faith of the statements in the application," with a
stipulation that if they " shall be found in any respect untrue," the policy should
be void. Held, that although, under the policy, the answers to the questions
contained in the application must be construed as warranties that they were
true In every particular, yet a negative answer to the question, "Has the
party ever met with an accidental or serious personal injury ?" did not bar a
recovery, when the Insured had actually met with an '* accidental " injury,

^such injury, however, being slight, and not affecting the subsequent health or
the longevity of the Insured. 1870. WHkinacn v. Oannectiewi Mutual Life
Insurance Go. (80 Iowa, 119), VI, 657 ; affirmed, 18 Wall. 228.

132. Ai to marrlaga — miirepresentations. Where one, representing him-
self to an Insurance company' to be a married man, effects an Insurance on his
own life for the benefit of his alleged wife and as her agent, when In fact the
marriage is void by reason of the reputed wife having a former lawful husband
living at the time, and the policy contains a provision that any false statement
by the assured shall invalidate It ; held, that the policy is not void by reason of
the Illegality of the last marriage, unless it appears that the said reputed hus-
band and wife knew at the time the Insurance was effected that at the time of
their supposed marriage the lawful husband was living, and the marriage Illegal,
and failed to Inform the company of the fact. 1870. Equitable Life Ins. Co.
V. Patterson (41 Ga. 888), V, 585.

133. Ooncealments. Plaintiff's decedent, a canvasser for a life insurance
company, under Instructions from the president to be cautious and not Insure
Insane persons, subsequently made application for a policy on his own life, stating
that there were no circumstances which rendered him peculiarly liable to acci-
dent, but omitting to state that he had been previously afflicted with insanity,
from which he had apparently been cured, ffeldy that if he did not conceal any
fact which. In his own mind, was material In making the application, the policy
was not void. 1871. Jiallory v. Travelers' Ins. Co, (47 N.Y. 52). VII, 410, and
note, 414.

13^ Th« tann ^ family phyiioian of the party," as used In the policy, held
to mean the physician who usually attends and is consulted by the members
of a family in the capacity of physician, whether or not he usually attended
on, or was consulted by, the Insured himself. 1871. Price v. Phcmisi MuUuU
Life Ins. Co. (17 Minn. 497), X, 166, and naU, 188.



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a08 mSUBANOE.

4. OondiU<m9.
136. Snioida. Where a proviso in a life insurance policy is, that it shall be
void if the assured '* shall die b^ suicide/' and the assured took a rope and
huug himself, there can be no recovery on the policy, although the act of self
destruction was committed under the influence of insanity, in the absence of
evidence proving delirium or madness, or that the act was involuntary. 18G9.
Goopw' V. Maa$aehuseU» Life Ins. Co. (102 Msas. 227), UI, 451, and naU, 454.

136. Where, from the facts in an action on a Ufe insurance jiolicy, it.

appears that the death of the assured was caused either by an accidental injury^
or the suicidal act of the deceased, the presumption is against suicide. 1871.
MaUory v. Tra/oeUrtt Insurance Ompany (47 N. Y. 52), VII, 410, and ncU, 414.

137. Death from an over-dose of laudanum, taken by mistake, while in

a drunken condition, is not dying " by his own hand ; " but death from lauda-
num taken with intent to destroy life, though while in a drunken condition,,
would be dying " by his own hand." 1870. Equiiahle Ufe Ins, Co, v. PcUereon
(41 Qa. 888), V, 585.

138. Death in violation of law. A policy of life insurance contained a pro-
viso that '* in case the insured shall die in the known violation of any law" th&
policy should be void. In an action on the policy it appeared that the insured
had personal and financial difficulties with the family of G, and that while he
was attempting to seize Cs team, C jumped from his wagon and started as if
to leave the team, but suddenly turned, drew a pistol, and shot the insured, kill-
ing him almost instantly. Held, that it was error not to submit the case to the
jury to determine whether the death of the insured was caused by a known
violation of the law on his part, and whether the death was a natural, reason-
able or legitimate consequence of the act of the insured. 1871. Bradley^ Ea^'r^
V. The Mutual Benefit Life Insurance Co. (45 N. Y. 422), VI, 115.

139. Military servioe. A policy of Ufe insurance upon the life of W. con-
tained a condition prohibiting the insured from going south of a specified
degree of latitude, and from entering into any " militarv or naval service what-
ever." At the time of issuing the policy, the company, in consideration of a
further premium, gave W. a written permission to go south of the specified
degree of latitude for one year, provided that the " said W. was not insured by
said policy against death from any of the casualties or consequences of war or
rebellion, or from belligerent forces in any place where he may be." The
insured, while engaged, within the year, in building a railroad bridge, under
the direction of the United States military authorities, thirty miles in the rear
of the Union army, was killed by a party of four men, not in uniform, who
robbed the other laborers. Held, that the death of the insured did not occur
while engaged in " military service," or from the " casualties of war or rebel-
lion," within the meaning of the policy, and that the company was liable.
1871. Welts V. Connecticut Mutual Life Insurance Co. (48 N. Y. 84), Vni, 518.

War — effect of, on contract of insurance,

140. As to agent — pa3rment of premium in Confederate money. M. a
resident of Virginia, held a policy of life insurance issued by the defendant, a



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INSTJEANOE. 209

foreign corporation, having a general agency and a sitb-board of directors in
New York, and paid his premiomB regularly to an agent in Richmond, appointed
by the New York agency. After the commencement of the war, arfaiing from
the rebellion of the aouthem States, the agent in Richmond received the pre-
miums in Confederate money, but made no'retom to the general agents in New
York. Prior to the death of M. the defendants took no steps to revoke the
authority of the Richmond agent. Held, in an action on the policy, that the
defendant being a foreign corporation, the war did not operate as a suspen-
sion of the authority of their agent in Richmond. HM, also, that the receipt
by the agent of Confederate money, in payment of the premiums, constituted a
valid payment, and was binding on the company. 1870. Bobinsan v. Interna-
HoMd Life Asmrance Soeiety (43 N. Y. 54), 1, 490.

141. At the commencement of the war of the rebellion, the defendant

(a New York company) had a general agent residing in Mobile, whose author-
ity to receive premiums was recognized by the defendant, after the issuing of
the president's proclamation of August 16, 1861, forbidding commercial inter-
course between the Confederate States and other States of the Union. The
plaintiff holding, on the 2d of January, 1862, a policy issued by the defendant
upon the life of her husband, paid to such general agent at Mobile, in Con-
federate currency, the premium which became due on that day. Meld, that
this was a valid and eflf^ual payment 1872. Sonde v. N, 71 Life I'M, Go,
(60 N. Y. 626), X, 585.

142. As to pa3rm6nt of premiums — waiver. In July, 1857, W.,a resident
of Virginia, procured from the defendants an insurance upon the life of S., his
debtor. The defendants were an insurance company organized under the laws ^
of New York, and the insurance was eflboted through their agent in Richmond.
The policy provided that the risk should determine if the premium was not
paid when due ; also, that no payments of premiums should be binding on the
company unless the same was acknowledged by a printed receipt, signed by
an officer of the company. The premiums were paid to the agent, and receipts
given, signed by an officer until July, 1861, when the premium was paid, but
only the receipt of the agent given. In July, 1862, the premium was tendered
when due, to the agent, who refused to receive it, on the ground that the com-
pany had directed him that the premiums must be paid in New York. S.
dying shortly after, this action was brought on the policy. Held, that the
breaking out of the war did not annul the contract between the parties, nor
revoke the authority of the agent ; that the company had no power to require
payment of premiums to be made in New York ; that by neglecting to supply
their agent with printed receipts, signed by an officer, the company had waived
the provision in the policy making such receipts evidence of payment ; and
that, therefore, the company were liable for the amount of the insurance, less
the last premium, which had not been paid. 1870. The Manhatlan Life Ins,
Oo, V. Wartoiek (20 Gratt. Va. 614), III, 218.

143. The New York Life Ins. Co. issued its policy to C, a resident of

Virginia, on the life of her husband, in 1858, containing a provision that, if the
yearly premiums were not paid on or before the several dates of payment

27



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210 INSURANCE.

therein mentioned, the policy should cease and the company should not be
liable for any part of the sum insured. The husband died in 1864, being after
the beginning of the civil war, leaving the premiums for 1862, 1868 and 1864
unpaid, the agent of the company in Virginia having refused payment for
these years. HM, that the dvil war did not dissolve the contract of insur-
ance ; that the non-payment of the three last premiums, in view of the state
of war between the north and south, did not avoid the policy, and that G.
could recover the sum insured, less the aggregate amount of the three unpaid
premiums. 1869. Nm York Life ln$ Cfo, v. Clopton (7 Bush. Ey. 179), III, 290.

144. In a suit brought on a life insurance policy, issued on the life of

S., of Mississippi, by a New York company, and conditioned on the payment
of annual premiums, the bill alleged that S. died in 1863, that all the annual
premiums from December, 1851, until his death, were paid, except the note
due December, 1861, which was tendered to B., the agent of the company, resi-
dent in Mississippi, who declined to receive it, the rebellion having begun.
Held, that the bill presented a prima fade case for relief. 1871. Statham v.
The New York Lifelnmranee Co. (46 Miss. 581), VII, 787.

146. war. A wife insured the life of her husband, a resident of Georgia,

in 1869, in a New York insurance company, and paid the annual premiums
promptly until 1863, but then failed to pay said premiums until March, 1865,
when the husband died, after which, and after the close of the war, she ten-
dered the unpaid premiums, and demanded payment of the sum insured, alleg-
ing that she was prevented by the war and by act of congress from paying
them year by year, on the day fixed in the policy. In an action on the policy,
held, that the wife could not recover. 1871. DiUard v. The Manhattan Life
Imurance Company (44 Ga. 119), IX, 167, and note, 169.

146. A complaint alleged that, in 1849, the defendant, a New York life

insurance company, issued to the plaintiff, a resident of the State of Georg^
a life policy upon the life of her husband, containing a clause that, in case of
the non-payment of the annual premiums, the said policy should *' cease and
determine," and all previous payments made thereon should " be forfeited to
the company ;" that the annual premiums fell due on the 3d of April, in each
year, and were paid regularly up to and including the year 1861 ; that the
plaintiff was ready and willing to pay the premium falling due April 3, 1863,
and those falling due during the existence of the dvil war ; that, in conse-
quence of the war, all intercourse was interrupted and forbidden by the laws
of the United States, and the plaintiff was thereby prevented from making
such payment ; but as soon as communication was re-established, after the
war, she tendered payment of the accrued premiums, but the defendant refused
to receive them, and declared the policy canceled and forfeited. The plaintiff
asked that she might be permitted to make the payments and that the poUcy
be declared valid ; or that the defendant be compelled to pay back the pre-
miums paid, with interest, and the dividends, etc. EM, on demurrer, that
tliQ contract was not dissolved, but merely suspended by the war; that the
])ayment of the premiums during its existence was le^;ally excused, and the
tender revived the policy ; that the case was a proper one for the exercise of



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INSURANCE. 211

the equitable powers of the court, and that a jadgment sustainiiig the demur-
rer wao erroneouB. 1873. Coh^n v. if. 7". Mut. Life Iwt. Oo. (60 N. Y. 610),
X, 522, and notey 585.

147. A contract of life insurance, between citizens of different States,



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