108 F.2d 32 (6th Cir. 1939), 7950, McDonald v. Mutual Life Ins. Co. of New York

• Docket Nº: 7950.
• Citation: 108 F.2d 32
• Party Name: McDONALD v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Case Date: December 05, 1939
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 32

108 F.2d 32 (6th Cir. 1939)

McDONALD

v.

MUTUAL LIFE INS. CO.

OF NEW YORK.

No. 7950.

United States Court of Appeals, Sixth Circuit.

December 5, 1939

Page 33

John A. Osoinach and Charles C. Brown, both of Memphis, Tenn., for appellant.

G. T. Fitzhugh, of Memphis, Tenn. (G. T. Fitzhugh and Fitzhugh, Murrah & Fitzhugh, all of Memphis, Tenn., and Louis W. Dawson, of New York City, on the brief), for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

ALLEN, Circuit Judge.

Appellant, as testamentary guardian of the minor children of Prather S. McDonald, instituted an action at law on a policy of insurance alleged to have been issued by appellee on the life of Prather S. McDonald, deceased. Jury trial was waived, and the District Court rendered judgment in favor of appellee upon the ground that the policy never came into legal existence.

The policy was in the amount of $10,000.00, with double indemnity provision in case of death resulting from an accident. The application for the policy was dated September 14, 1932. On september 23, 1932, Prather S. McDonald (hereinafter called the applicant) was seriously injured in an automobile accident, and died on October 9, 1932. On September 24, 1932, the day after the accident, the soliciting agent of appellee wrote a letter to the applicant, in which he stated:

'Your policy has been approved and issued subject to your approval of the big rider inside as to the Mode of Settlement. It is as you wanted it except that the Company makes provision in the event of the death of the children. If you approve of the rider, will you please sign the two enclosed forms and return to me. If you want the rider changed, return the whole works and I will have the changes made. If you can't take up the policy within the 60 days, the Company will naturally want the policy back.'

With the letter was enclosed the policy, to which was attached a rider which provided, among other things, for payment in monthly installments of $50.00 to each of the two children of the deceased, and made provision for payment in a lump sum in the event of the death of both children to the executor or administrator of the last survivor. The application did not give instructions as to the mode of settlement, but the soliciting agent penciled a suggestion on the top margin, as follows: 'Prin. & int. payable to beneficiaries...