Austin v. Mutual Reserve Fund Life Ass'n
| Decision Date | 22 August 1904 |
| Docket Number | 1,393. |
| Citation | 132 F. 555 |
| Parties | AUSTIN v. MUTUAL RESERVE FUND LIFE ASS'N. |
| Court | U.S. District Court — District of Massachusetts |
Joseph Bennett, for plaintiff.
Victor J. Loring, for defendant.
The following is a copy of plaintiff's declaration filed October 20, 1903:
Count 1. And the plaintiff says that the defendant corporation, on the 14th day of April, A.D. 1897, made and issued to Jonathan W. Austin a policy of insurance, a copy whereof is hereto annexed and made a part hereof, by virtue of which said corporation insured the life of said Jonathan W. Austin in the sum of five thousand dollars, payable at the death of said Jonathan W. Austin to Frances E. Austin, of Newton, in the county of Middlesex, if living at the time of the death of said Jonathan W. Austin, and otherwise to the executors of said Jonathan W. Austin. And the plaintiff says that said Frances E. Austin died on the 4th day of October, 1899 whereby said policy, by its terms, became payable to the executors of said Jonathan W. Austin at his decease. And the plaintiff further says that said Jonathan W. Austin during his lifetime had done and performed all things by him to be done and performed by the terms of said policy; that he had paid all dues, fees, assessments, and premiums required by him to be paid. And the plaintiff further says that said Jonathan W. Austin died on the 3d day of October, A.D. 1902. And the plaintiff says that due notice and proofs of death of said Jonathan W. Austin, were duly given to said defendant corporation as required by said defendant, but that the defendant has neglected and refused to pay to the plaintiff the amount of said policy; and the plaintiff says that the defendant owes her the full amount of said policy and interest thereon.
Count 2. And the plaintiff further says that the defendant corporation, on the 14th day of April, A.D. 1897, made and issued to Jonathan W. Austin another policy of insurance, a copy whereof is hereto annexed and made a part hereof, by virtue of which said corporation insured the life of said Jonathan W. Austin in the sum of five thousand dollars payable at the death of said Jonathan W. Austin to Frances E Austin, of Newton, in the county of Middlesex, if living at the time of the death of said Jonathan W. Austin, and otherwise to the executors of said Jonathan W. Austin. And the plaintiff says that said Frances E. Austin died on the 4th day of October, 1899, whereby said policy, by its terms became payable to the executors of said Jonathan W. Austin at his decease. And the plaintiff further says that said Jonathan W. Austin during his lifetime had done and performed all things by him to be done and performed by the terms of said policy; that he had paid all dues, fees, assessments, and premiums required by him to be paid. And the plaintiff further says that said Jonathan W. Austin died on the 3d day of October, A.D. 1902. And the plaintiff says that due notice and proofs of death of Jonathan W. Austin were duly given to said defendant corporation as required by said defendant, but that the defendant has neglected and refused to pay to the plaintiff the amount of said policy; and the plaintiff says that the defendant owes her the full amount of said policy and interest thereon.
Count 3. And the plaintiff further says that the defendant corporation, on the 14th day of April, A.D. 1897, made and issued to Jonathan W. Austin another policy of insurance, a copy whereof is hereto annexed and made a part hereof, by virtue of which said corporation insured the life of said Jonathan W. Austin in the sum of five thousand dollars, payable at the death of said Jonathan W. Austin to Frances E. Austin, of Newton, in the county of Middlesex, if living at the time of the death of said Jonathan W. Austin, and otherwise to the executors of said Jonathan W. Austin. And the plaintiff says that said Frances E. Austin died on the 4th day of October, 1899, whereby said policy, by its terms, became payable to the executors of said Jonathan W. Austin at his decease. And the plaintiff further says that said Jonathan W. Austin during his lifetime had done and performed all things by him to be done and performed by the terms of said policy; that he had paid all dues, fees, assessments, and premiums required by him to be paid. And the plaintiff further says that said Jonathan W. Austin died on the 3d day of October, 1902. And the plaintiff says that due notice and proofs of death of Jonathan W. Austin were duly given to said defendant corporation as required by said defendant, but that the defendant has neglected and refused to pay to the plaintiff the amount of said policy; and the plaintiff says that the defendant owes her the full amount of said policy and interest thereon.
The following are the findings of law and fact:
(1) The facts are as stated in the plaintiff's declaration, except as follows:
(2) Each of the applications for the policies in suit contains the following clause:
'The applicant further agrees * * * that under no circumstances shall the insurance hereby applied for be in force until payment in cash of the first payment, while the applicant is in good health, and delivery of the policy to the applicant in person, during his lifetime and while in good health.'
(3) Each policy contains the following clauses:
(4) The policies were delivered to Jonathan W. Austin, who was the applicant therefor, and whose life was insured, on the 14th day of April, 1897, and he then paid the first premium for each.
(5) Jonathan W. Austin died on October 5, 1902. Meanwhile he paid several times each year, as each came due, all the premiums as stipulated in each policy: and each of said payments was accepted by the defendant corporation without the expression of any protest, condition, or qualification; but, so far as the acceptance of each was concerned, it was unqualified and unconditional.
(6) The facts with reference to the condition of Jonathan W. Austin's health, as herein stated, were not known to the defendant corporation until after Austin's decease; and seasonably, and in the proper manner, after they became known, the defendant corporation objected on that account to the payment of the policies, or any of them, but never returned or offered to return the premiums it had received.
(7) On July 9 and 10, 1896, Jonathan W. Austin was attended by Dr Horace A. Marion, a physician, who examined him at his request. He told Dr. Marion that he had been rejected on an application for life insurance at or about that time on account of the discovery of albumen in his urine. As the result of this...
To continue reading
Request your trial
-
Allen v. Phoenix Assur. Co.
... ... 654, 83 S.W. 534; Ehrlick v. Aetna Life Ins ... Co., 88 Mo. 249; Okey v. State Ins ... effect. ( Austin v. Mutual Reserve Fund Assn., 132 F ... 555; ... ...
-
Parsons, Rich & Co. v. Lane
... ... plaintiff had only a life estate in the property. Of course ... she had an ... Co. v. Grand View Bldg ... Assn., 183 U.S. 308, 339, 22 S.Ct. 133, 144, 46 L.Ed ... N.Y. 560, 565, 29 N.E. 991; Ronald v. Mutual, 132 ... N.Y. 378, 30 N.E. 739; Germania v ... 113 Iowa 65, 84 N.W. 956; Fireman's Fund Ins. Co. v ... Norwood, 69 F. 71, 16 C.C.A ... at once of no force and effect. Austin v. Mutual Reserve ... Fund Life Assn. (C.C.) ... ...
-
Harris v. Security Life Insurance Company of America
... ... 237; Patterson v ... Ins. Co., 100 Wis. 118; Austin v. Mutual Reserve ... Ass'n, 132 F. 555; Reagan v. Ins ... ...
-
Berger v. Manhattan Life Ins. Co.
...in the answer. We are unaware of any New York case squarely on point. The Court is guided by the reasoning in Austin v. Mutual Reserve Fund Life Ass'n, 132 F. 555 (D.Mass.1904), a case applying New York law and cited with approval in Bavisotto, where the defendant insurance company did not ......