Mutual Life Ins. Co. of New York v. Hilton-Green

Decision Date07 January 1913
Docket Number2,427.
Citation202 F. 113
PartiesMUTUAL LIFE INS. CO. OF NEW YORK v. HILTON-GREEN et al.
CourtU.S. Court of Appeals — Fifth Circuit

This cause comes to this court upon a writ of error to review the judgment of the District Court of the United States for the Northern District of Florida in favor of the defendants in error, who were the plaintiffs in the District Court. The plaintiffs sued the defendant insurance company upon four policies of life insurance, aggregating about $30,000, issued at one and the same time to the plaintiffs' intestate and constituting one transaction. The defendant in defense of the action relied upon certain alleged misrepresentations made by the insured to defendant as to the condition of his health at the time he applied for insurance, as to previous illnesses and previous consultations with physicians, as to the statement that he had in fact been examined by the medical examiners of the insurance company, and also as to previous applications made to other insurance companies, upon which no policies were issued to him. The alleged misrepresentations were contained in his application for the policies sued upon and also in the medical examiners' report, certified to as correct by the applicant. The defendant interposed these defenses by separate and appropriate pleas. The plaintiffs replied to the pleas, among other things, that the application for the policies had been taken in Alabama, and that under the law of that state the policies became incontestable for any cause after the payment of two premiums, and that two premiums had in fact been paid. By the terms of the policies themselves, they became incontestable only after the lapse of two years from the date of their issue, which period had not expired at the time of the death of the insured. The court below submitted to the jury in its oral charge the issues arising under this replication leaving it for the jury to determine whether or not the application was taken in Alabama, and directed the jury, in the event they found the application was taken in Alabama, to disregard the issues presented by the defendant's pleas for the reason that the policy would then be incontestable it being conceded that two premiums had been paid thereon during the lifetime of the insured. The defendant excepted to this part of the court's oral charge, and also to the refusal of the court to give written charges requested by it, asserting in effect that the application was to be construed as having been taken in Florida, and that the Alabama statute relied on by the plaintiffs was not applicable as the law of the case. If the exception of the defendant to the oral charge was too general, the question is properly presented by the exceptions to the action of the court below in refusing requested charges asserting the principle and upon which error is assigned. As we view the case, the rulings of the court on this issue are determinative of this appeal, and it is unnecessary to notice the other assignments of error.

The insured was a resident of Pine Barren, Fla. While upon an occasional business trip to Alabama, he was solicited by one J. C. Hogue, an insurance broker, to take out additional insurance. Hogue had previously attempted to write intestate in another company which had declined the risk. He then persuaded him to make application to the defendant, while he was traveling with him on a railroad train; the insured being on his way from Alabama to his home in Florida. The answers to the questions contained in the application were written out by Hogue at Flomaton, Ala., from information furnished him by the insured, and the insured at the same time and place signed the application and delivered it to Hogue, who was to complete it by having the blank reports of the medical examiners, which was attached, properly filled out, and then certified to by the insured as correct, before it was turned into the defendant to be acted upon. The insured then resumed his journey to his home in Florida, and Hogue his interrupted journey to Greenville, Ala. After Hogue had returned from that place, he went to Pine Barren, Fla., with the application signed by the insured, and caused two physicians to fill out and sign the medical reports, one at Pine Barren and one at Century, Fla. He then had the insured certify on the medical reports under his signature to the fact of the examination and the correctness of the answers. This was done by the insured at Pine Barren, Fla., and the application, thus completed, was turned over to Hogue, the insurance solicitor, by the insured at Pine Barren, Fla.

The insurance solicitor then took it to Mobile, Ala., from which place it was forwarded to the home office of the defendant. Thereupon the policies in suit were issued and sent from the defendant's home office to its agent at Jacksonville, Fla., who caused the policies to be delivered to the insured at his home at Pine Barren, Fla. This is the history of the transaction, as shown by the record.

Emmett Wilson, of Pensacola, Fla., for plaintiff in error.

W. A. Blount, A. C. Blount, Jr., and F. B. Carter, all of Pensacola, Fla., for defendants in error.

Before PARDEE, Circuit Judge,...

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5 cases
  • American Fire Ins. Co. v. King Lumber & Mfg. Co.
    • United States
    • Florida Supreme Court
    • October 20, 1917
    ... ... provides: 'Nor shall any state deprive any person of ... life, liberty or property, without due process of law.' ... "(4) ... As ... was said by Mr. Chief Justice White in New York Life ... Insurance Co. v. Head, 234 U.S. 149, text 161, 34 S.Ct ... We ... would also refer to State v. United States Mutual ... Accident Association, 67 Wis. 624, 31 N.W. 229; ... Stanhilber v ... Insurance [74 Fla. 162] Co. v. Hilton-Green, ... 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202, which is cited to ... ...
  • Parsons v. Federal Realty Corp.
    • United States
    • Florida Supreme Court
    • December 15, 1931
    ...as between the company and third persons. This appears to be the view of the Supreme Court of the United States as expressed in the Hilton-Green Case, supra, with regard to insurance and in that conclusion we are inclined to concur by placing the same construction on our statute controlling......
  • Cauthen v. Metropolitan Life Ins. Co.
    • United States
    • South Carolina Supreme Court
    • February 2, 1939
    ... ...          W ... M. Wilson, of Charleston, and Finley & Spratt, of York, ... for respondent ...          FISHBURNE, ...          The ... respondent ... & Mfg. Co., 74 Fla ... 130, 77 So. 168; Id., 250 U.S. 2, 39 S.Ct. 431, 63 L.Ed. 810; ... Mutual Life Ins. Co. v. Hilton-Green (C.C.A.), [5 ... Cir.] 202 F. 113; Id. (C.C.A.) [5 Cir.] 211 F. 31; ... ...
  • First Trust Co. of St. Paul v. Kansas City Life Ins. Co., 10276.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 22, 1935
    ...149 F. 141, 143; Travis v. Nederland Life Ins. Co., 104 F. 486, 488, and by other federal and state courts Mutual Life Ins. Co. of N. Y. v. Hilton-Green, 202 F. 113 (C. C. A. 5); Miller v. Northwestern Mut. Life Ins. Co., 111 F. 465, 468 (C. C. A. 4); Witten v. Beacon Life Ass'n, 225 Mo. Ap......
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