NEW YORK LIFE INS. CO. V. DINGLEY.
most scope of it. It was, therefore, a violation of no conditiun of the policy that the assured went from Long Beach to New Orleans, and back to Long Beach again, on the 31st day of July, 1894, nor that, on arrival at New Orleans on August 6th, he was compelled to interrupt his journey homeward, and to go to the house of a friend to die, unless, according to the fair meaning of the policy, construed liberally in favor of the assured, he by so stopping ceased to be a passenger and became a resident. As already indicated, our opinion is that, to be a passenger or traveler on a journey, by a route of public conveyance, one need not be on the constant go. He may not stay on his way so long, and under such circumstances, as to become a sojourner; but he has the right to stop, as a passenger or traveler is to be expected to do, for any purpose of business, health, or pleasure,-and especially when sickness makes it necessary. Whether, in this instance, the interruption of the journey was improper, was, in the view most favorable to the defendant in error, a question of fact, or of mixed law and fact, to be submitted to the jury upon proper instructions. Many decided cases have been cited, to some of which reference was made by the court below; but, upon our view of the proper construction of the policy, they are not relevant, and need not be reviewed. The point decided being that the evidence in the record does not show conclusively that there had been a breach of any condition of the policy, the question does not arise whether a conceded or established breach, for which by its terms the policy is to become void, may be excused because produced by an act of God or other like cause. The judgment below is reversed, and the cause remanded with direction to grant a new trial.
NEW YORK LIFE INS. CO. v. DINGLEY. 1 (Circuit Court of Appeals, Ninth Circuit. February 6, 1899.) No. 466.
CBsURANcm-LIJ'lll POLICY-FoRB'lllITURE-NoNPAYMlllNT 011' PRlllMIUM-NoTIOIIVALIDITY.
A policy provided that, after It had been In force three months, one month's grace would be allowed In payment of subsequent premiums, which became due annually on July 19th. Laws N. Y. 1892, c. 690, art. 2, § 92, by which the policy was governed, provides that no life Insurance corporation doing business In that state shall declare a policy forfeited for nonpayment of premium when due, unless a notice stating the amount due, the place of payment, and the person to whom payable shall be mailed to the person Insured at least 15, and not more than 45, days, prior to the day when the same falls due, and stating that, unless the amount then due shall be paid by such date, the policy wUI become forfeited, and declares that, If payment so demanded Is made within the time limited therefor, it shall be a full compliance with the polley, and that no such polley shall In any case be forfeited until the expiration of 30 days after the mailing of such notice. Plaintiff's decedent paid two annual premiums prior to June 27, 1896, when defendant mailed him a notice In compliance with the statute, except that It declared that, unless the premium was paid on or before July 19th, the policy would be forfeited, but also stated that the notice was sent In compliance with the New York law, and did not modify the proVisions of the polley. The premium due July 19, 1896, was not paid, and assured died In November of that year; Held, that since, under the statute, the poHcy could not be forfeited until 30 days after the mailing 1. Rehearing denied May 23, 18D!).
93 FEDERAL REPORTER.
of the notice, and that that period could not expfre 27th and ,July 19th, and in l'iew of the grace provision of the polk3', the notire that it forfeited, !f 'payment was on -the Ja:tter invalid, and that the policy was, ij'l force.
In Error to the Circuit Court of the United Statesfof the Northern, Division of the District of Washington. :a. Durham, for in error.,. ' Carr & GilmaIi; for defetidant 1ll error. " anft MORROW, Oircuit Judges. ROSS,!CircuitJudge: was l:!-n action upon a policy of life inl;luranceisslled by the Newy-ork Life InsuranceC4;)mpany by which it of one Walter That wae uI;lQ,er and subject to the laws of tlle state of New -york is not 1,ts date is August 3, 1894"and one of the considerations for; was payment to the company by the-insured, in advRl;\c,,?,, Qf,$158, "and of/the payw,ent of a like sUm, on, the 19th day ;every ,the continuance of icy,JJI\til twenty full years' premiumspalllrave been Paid." The con: tIjact fmib.er provided, am()ng other things; jas follows:,
!',No, ,agent has ,Ilower, in behalfoLthe'company, to make or modify this or: any of insurance,,: to. ,extend the time, ,for., paying; a premium, to apy torfeiture, or toblncf the comPliny, by making any or making orrecerving any representation or Information. These powers can be exercisMbnly by the presH'l ht",vice president, 'secoridvlce president, actuaD', or secretary, and wtlL:notbe.l delegated.' All, premlumsare,uue and payable at the home office of the company, unless otherwise agreed in writing, but may be paid to agents producing receipts,--signed by the president, vice president, second vice president, actuary, or secretary, and countersigned by such agents. If any premium is not pam op.or before .the day when due, then, except as hereinafter otherwise provided, this policy shall become void, and all paym:llnts' previously made shall remain the, property' of the company. After this policy shall have been in force ,three months, a grace of one month will be allowed In payment of subsequent premiums, subject to an interest "five per cent. pe1,' :annumfor the number .of.days during which the premium remains due and unpaid. During the said month of grace, the unpaid premium, with interest as libove, remains an due the comp8JllY,anni in the event of death during the'sadd month" this indebtedness will bededttctedfrom the amount o£ the insurance."
Afihetlme of the makJ,ng of the contract in que'stion there was, and yet is, in force, a statute of the state of New York which provides gs 'follow!!!': ' .
"No Fqrfelture ,of Policy Without Notice. No life insurance corporation doing. blll'l!:t;Iessin this s,tate shall. declare forfeited or lapsed any policy hereafter iSJ>ued: or renewed, ,aud not Issued upon the payment of monthly or weekly premiums, or unless the same is'a term insurance contract fo!' one year or less,. 'nor shall any sucb policy beforfl!ited 'or lapsed by reason of nonpayment, wliendue, of any premium,interest, or installment· ,Or any portion thereof, required' by the terms of the policy to. be paid, uI;!less a written or printed notice stating the amount of such premium, interest,. instaIlment, or portion due onsucih the place where it shqJlld; Qe paid, alld the person to whom the same"il! payable, shall be duly addressed and wailed to the person whose life Is IIl1SUri)d, or the assignee of the policy, if notice of the assignment has been giveI;! to;the corporation, at his or her last known postoffice address, postage paid, ,bY the corporation, or by an officer thereof, or person appointed by it to collect such at least fifteen, and not more
NEW YORK LIFE INS. CO.V. DINGLEY.
than torty-five days prior to the day when the same Is payable. shall aiso state that unless such premium, Interest, Installment, 01 "'('T'tion thereot, then due, shall be paid to the corporation, or to a .agent or NrS(ln authorized to collect such premium, by or before the day it fails due, the polley, and ail payments thereon, will become forfeited and void, as to the right to a surrender vaiue, or paid-up polley, as In this chapter provided. It the payment demanded by such notice shall be made within the time limited therefor, It shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no liuch policy shall in any case be forfeited or declared forfeited or lapsed until of thirty days after the mailing of such notice. The affidavit of any officer, clerk, or agent of the corporation, or of anyone authorized to mall such notice, that the notice required by this section has been duly addressed and malled by the corporation iSS\llng such policy, shall be presumptive evidence that such notice has been duly given." Laws 1892, c. 690, 111'1.
2, § 92.
Two premiums, aggregating $316, were paid on the policy, being those for the years 1894 and 1895. The premium for 1896 was not paid, and on the 12th day of November, 1896, the insured died at the city of Seattle, state of Washington. In his application for the policy, the insured gave his post-office address as Oakland, Alameda county, Cal. Subsequently, to wit, April 8, 1895, he notified the company in writing that he had changed his residence to Seattle, Wash., and requested that thereafter all notices should be addressed to him at that place, post-office box 1272. This change of address was noted in the books of the company, and was thereafter the postoffice address of the insured last known to it. On the 27th day of June, 1896, the company deposited in the United States post office at San Francisco, Cal., pQstage prepaid, a notice addressed to the insured at Seattle, as directed, which notice was printed on a ca.rd, and reads as follows:
"(2) Bring this card with you when paying premium or inclose It with 16ur remittance. The New York Life Insurance Company hereby gives notl.".e that on policy No. 628,645 a premium of $158 will be due July 19, 1896, provloea the polley be then in force. This premium will be due and payable ,,,t the home office, and 348 Broadway, New York, to the cashier of the company, or to Fred G. Redding, cashier, :Mllls Building, San Francisco, Cal., on the production of the offiCial receipt tberefor. Unless such premium then due shail be paid to the corripany, or to a duly-appointed agent or person authorized to collect such premium, by or before the day It falls due, such polley, and all payments thereon, will beevme forfeited and void, except as to the right to a surrender value or pald-up polley which may be provided In said policy, or by statute. 'l'hlsnotlce Is required by the law of New Yor!t, an' floes not modifyany of the terms of the contract. John A. McCall, "Remltta.nce should be made by bank draft, post-office or express money order. or .certified check, payable to the order of the New York Life Insurance Company. [Over.] "Notice to Polley Holders. "No agent has power, In behalf of the company, to make or to modify any contract ot insurance, to exten!l the time for paying a premium, to waive. any forfeiture, or to bind the company by making any promise, or by making or receiving any representation or Information. These powers can be exercised only by tbe president, vice preslc1ent, second vice president, actuary, or secretary ot the company, and wlll not be delegated. All premiums are due and payable at the home office of the company unless otherwise agreed In writing, but any premium may be paid to an agent, producing a receipt the,efor, signed by the president, vice president, second vice president, actuary. or secretary, and countersigned by such agent. If any premium is not thus paid 0»
orbef'l>re the day when due, then (except as otherwise provided) the polley shall become void, and all payments previously made' shall· remain the property of the company. If any premium Is not paId upon the date when due; -a grace of one month is allowed by the company within'which the overdue premium will beacce)!ted, if paid, with interest, at the rate of I) per (''.Jut. per annum. During tbis month of grace, the )!ollcy Is continued In fuil force. The acceptance 'of any )!remlum by ,the company after the expiration of the month's grace Is subject to the condition, and upon the express' warranty on the part of the holder of the polley that the insured Is In good health, and is not to be construed as a waiver of the conditions of the )!Olley as, to future payments, nor as establishing a course of dealing between the company and the 'holder of the ]!Olley. Please notify the branch office to which you pay your premium of any error or change In your post-office address, in writing, giving the number of each ]!Olley now held by you."
The only question in the case is whether or not the policy became forfeited .by reason of the nonpayment of the premium for the year 1896. The statute of New York, under and subject to which the policy was issued, declares, as has been seen, among other things, that no life insurance c.oI'poration doing business in that state shall declare forfeited or lapsed any policy thereafter issued, by reason of nonpayment, when due, of any premium required by the terms of the policy to .bepaid, unless a written. or printed notice, f'\tating the amount of such premium, the place where and the persoll to whom it should be. paid, shall be duly. addressed and mailed to: the person w,hose life,was insured, .,at his 01' her known post'office address, pQstageprepaid, at least 15, and not more than 45, days prior to the date when the same is payable. The notice is also, by the statute, required to state that, unless suc:q premium be paid to,.,the corporation or to a duly-appointed agent or person authorized to eoHect such premium, by 01' before the day it falls due, the policy, and all payments thereon, will forfeited and void; with: ,a provision to the effect that no policy shall in any case be forfeited,or declared forfeited or lapsed, until the expiration of 30 days after the mailing of such notice. But for this statute, there could be DO' doubt that the policy in question was forfeited; for not on,ly was the premium for the ,year 1896 not paid on the 19th day July of that year, nor .within one month thereafter, but it was not paid at all. The statute, however, which entered into and controls' the contract of the , parties, prohibits such fo:i1eiture unless the company gave the prescribed notice. It is manifest, therefore, that the.rea:lquestioD is whether the notice of June 27, 1896, conforms to the statutory requirements. It is not disputed that it was properly addressed and mailed. The purpose of the statute was, as said by the court of appeals of New York in McDougall Y. Society, 135 N. Y. 556, 32 N. E. 252, "to afford a protection to the assured by the. reasonable requirem('nt of a notice, couched in plain terms, from the insurer, before the interests of the assured could be forfeited." And it has been several times decided by th4:l same court that the provisions of the statute respecting forfeitures should be strictly interpreted in favor of the assured, and that the defense of a forfeiture through nonpayment. of premium is not available to an insurance company if there has been any substantial departure on its part from the provisions of the statute in regard to notice. De Frece v. Insurance Co.,
136 N. Y. 144, 32N. E. 556; Baxter v. Insurance Co., 119 N. Y. 450, Co., 113 N. Y. 147, 20 N. E. 827; 23 N. E. 1048; Phelan v. Carter v. Insurance Co., 110 N. Y. 15, 17 N. E. 396. The first part of the notice in question informed the insured that a premium of $158 would become due on the policy July 19, 1896, and stated where and to whom payable. It next informed him that un-less such premium, -then due, "shall be paid to the company, or to a duly-appointed agent or person authorized to collect such premium, by or before the day it falls due, such policy, and all payments thereon, will become forfeited and void," with an exception not important to mention. So far, this was a substantial compliance with the requirements of the statute, the provisions of which are, as has been seen, that notice shall be given of the day when the premium will become due, in the prescribed way, at least 15, and not more than 45, days prior to the date when the premium is payable, with information to the effect that, unless paid by or before the day it becomes due, the policy, and all payments thereon, would become forfeited and void. It cannot be doubted that, under the terms of the policy in suit, the premium for the year 1896 became payable on the 19th day of July of that year. The company was therefore required by the statute to give the notice not less than 15, nor more than 45, days prior to that date. It was given June 27, 1896, and was therefore within the prescribed time. Yet the forfeiture for failure to pay the premium on the 19th day of July, 1896, of which notice was thus given, was prohibited, both by the statute and by the provisions of the policy. It was prohibited by the statute by virtue of that clause thereof declaring that "no such policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days alter the mailing of such notice." The notice having been mailed 27, 1896,-only 21 days prior to July 19, 1896,-there was this statutory inhibition against forfeiture for the nonpayment of the premium on July 19, 1896; and, under the terms and conditions of the poli!'v, it was not possible for the forfeiture to occur until the expiration of one month's grace from July 19, 1896, on which day the premium was by the policy declared to become due and payable. Of this the notice also informed the insured; for, after reminding him that the premium became due and payable July 19, 1896, and informing him, wrongly, that, if it was not then paid, the policy, and all payments thereon, would become forfeited and void, it proceeded to say that such notice was given because of the statute of New YOlk, and that it did "not modify any of the terms of the contract"; one of the provisions of which, it reminded the insured, was that:
"After this policy shall have been in force three months, a grace of one month will be allowed for payment of subsequent premiums, subject to an inte:restcharge of five per cent. per annum for the number of days during which the premium remains due and unpaid. During the said month of grace, the unpaid premium, with interest as above, remains an indebtedness due the company. and, in the event of death during said month, this indebtedness will be deducted from the amount of the insurance."
These contradictory and inconsistent notices do not answer the requirement of the New York statute, as construed by the court of appeals of that state, which demands a notice to the insured in
, :,93FE;DERAL RE,P;QRTI!lll.
a.n:dither,efore llna,ml>iguous, ,the time .wb,en,the pre· mium: will ·be a.nd'9f::t1le time. wllen,a, forfeiture accr.ue if not theretofore paid. T.b.e in the present jnstanqe, the. tlle:cQmpany, andfrQJ;Illllck of'abmtY,'Qr neglect, 'nQ:t rthe outhe 19th day of J,WY, migllt yery,readily th!lt faillll'ft to pay. OJ;l. t4at1day worked a Jorfeijll,l"e of,tbe policy; ',fpr in t@,firstpartof tl1e,n,otice he was distip,ctJy so toJd, although.w/;QJlgly,as has been shown. Receiving such I19tice,from and 19th day of Jqly, If.j96, having come and gone without the paymeJ1,t of the premium, .it might very well have4appened that, the' insured. relied upon·.:the, information thus conveYed, a,nd apandOlled all effort to pay the premium, without looking tot4e statute of York, or to the grace clause printed on tl;J.e .back of ,the notice, attention was also, directed in the, notice" by one of, which provisions J:te was still l'J,llowed 8 days, and by the other 30day,l!I, after July 19, 1896, within which to pay the premiu,m, and f()rfeiture of. his. policy. ,,' The 'below in respect to the requested by: tbeplaintfftill:error. and in respect t(): those given to the jury, pursuant to fOl';tJ:te p1ilintiff in error, being .in: ll-CcorQl\Ilce, with tIle views above expressed, the judgment .is atnrmed. . ''II;
';' . !
NEW YORK v.
(CIrcuit, Court of:A.ppeals, Fifth.· Circuit. Februao- ·28·. 1899.)
'. :01' PRoOI' OJ' ....'. ;
ACClDlllN·T 1NSiURANCE--,ColfeTRucTlONOJ'. ACClDIjlN'J,'A,LD;EATlL', ".,:
under' ,tpe. prescribed : a defense of res judicata ·must be plea,4e4, to be a,vaUable. . 'L, pio FEDERAl. 01' EvrDENCE. , Testim6ny In reference to the citizenship 01' the parties Is only' adwls.' sible hi support ofaUegations properly made In the preli.dlngs. 1
, In Error to''i:heCircJ.it'Court oftheUnited Statesfof the Eastern
This was an action In court for the Easterndlstl!lcto,f Louisiana by Mrs. Harr:i>et Barker,wldow'llf.J. W. Barker, against the Preferred Accident Insurance :Oompany of.;;New. YOI'Ili, upon a policy of tnsurance·ofthat!CODlpany he1dby him Ver,. 1
As to I!-lleg%Uons
citizenshIp, seenQte to !3hlpp J'. Wllllam.s, .10 C. O. A. thereto, undllr to Mason v. Duliagham,