241 F.2d 175 (3rd Cir. 1957), 11939, Fisher v. American Nat. Ins. Co.

Docket Nº:11939.
Citation:241 F.2d 175
Case Date:February 13, 1957
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 175

241 F.2d 175 (3rd Cir. 1957)

Gilda M. FISHER, Appellant,



No. 11939.

United States Court of Appeals, Third Circuit.

February 13, 1957

Argued Oct. 4, 1956.

Page 176

M. Stuart Goldin, Abe J. Goldin, Goldin & Goldin, Brenner & Brenner, Philadelphia, Pa., for appellant.

Owen B. Rhoades, Philadelphia, Pa., Gordon W. Gerber, Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

Where a policy of life insurance provides that, if lapsed, 'it may be reinstated * * * upon presenting to the Home Office evidence of insurability, including good health, ' is this condition precedent to reinstatement met upon the mere mailing of an application for reinstatement to the agent of the insurer?

That is the issue presented by this appeal from the judgment of the District Court for the Eastern District of Pennsylvania in favor of the defendant. The stipulated facts are detailed in the opinion of the Court below. 1 They may be summarized as follows:

The plaintiff, Gilda M. Fisher ('beneficiary') was the designated beneficiary in a policy of life insurance issued upon the life of John Thomas Fisher, Sr. ('insured') by the defendant, American National Insurance Company ('American') in the amount of $5, 000, on October 12, 1951 in Philadelphia, Pennsylvania. 2

Beneficiary's check for premium due April 12, 1953, was returned by the drawee bank because of 'insufficient funds.' Since the premium was neither paid when due nor within the thirty-one day grace period, the policy lapsed. Two additional checks for monthly premiums sent to American by beneficiary on May 15, 1953, were not deposited by American.

About noon, on Saturday, June 6, 1953, beneficiary delivered to a United States postman an envelope properly stamped and addressed to Mr. William Gilvear, 481 Krams Avenue, Philadelphia 26, Penna., an agent of American. American's Home Office, as specifically noted on the face of the policy, is in Galveston, Texas. The envelope contained a monthly premium check and a standard application for reinstatement signed by insured at Camden, New Jersey and dated June 4, 1953. Deposited by the postman and thereafter postmarked at Camden, New Jersey on June 6, 1953, the envelope and its contents were received by the addressee agent after insured's death. The agent forwarded the letter to American. The latter never deposited the check.

Prior to 3:00 P.M., June 6, 1953, insured had made no complaint of any illness or of his physical condition. He suffered his first heart...

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