Bostick v. New York Life Ins. Co.

• Decision Date: 27 October 1922
• Docket Number: 3953.
• Citation: 284 F. 256
• Parties: BOSTICK v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

284 F. 256

BOSTICK v. NEW YORK LIFE INS. CO.

No. 3953.

United States Court of Appeals, Fifth Circuit.

October 27, 1922

Alex C Birch and J. E. Johnson, both of Birmingham, Ala. (Weatherly Birch & Hickman, of Birmingham, Ala., and Gregg & Johnson, on the brief), for plaintiff in error.

Frank Dominick, of Birmingham, Ala. (Stokely, Scrivner & Dominick of Birmingham, Ala., and Louis H. Cook, of New York City, on the brief), for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

The plaintiff in error, who was the plaintiff below, complains of the action of the court in instructing the jury to the effect that, if they believed the evidence, they could not find for her under two counts of the complaint, which claimed on two instruments alleged to be policies of life insurance, one for $5,000 and the other for $10,000, issued by the defendant to the plaintiff's deceased husband, Peter E. Bostick.

Two instruments, purporting to be the policies alleged, to each of which was attached, and made a part thereof, the alleged insured's written applications therefor, were put in evidence. Each of those instruments contained a recital to the effect that it was made in consideration of the payment in advance of a named sum, constituting the first premium 'the receipt of which is hereby acknowledged. ' Each of the applications contained the following:

'It is mutually agreed as follows: (1) That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by any physician since his medical examination. * * * That only the president, a vice president, a second vice president, a secretary or treasurer of the company can make, modify or discharge contracts, or waive any of the company's rights or requirements.'

The plaintiff testified that the deceased delivered the two policies sued on to her either Wednesday or Thursday night prior to his death. The evidence showed that the deceased died on Monday, June 20, 1921, after an illness which prevented him from attending to business for three days prior to his death.

Winston Roberts testified to the following effect: Several weeks prior to the date of Mr. Bostick's death, witness, who was a soliciting agent of the defendant, took his applications for three policies of insurance, including one ordinary life policy for $10,000, and one 15-pay policy for $5,000. Witness got the policies from the defendant on Wednesday or Thursday before Mr. Bostwick died. Late in the afternoon of Thursday, witness showed the two above-mentioned policies to the deceased at his office. Deceased asked witness to allow him to take the two policies home and look over them, and said he would see witness about Saturday. Thereupon witness turned over the two policies to the deceased for inspection. Deceased did not pay or promise to pay the premiums, though witness tried to get him to do so and did not agree to take either of the policies. As to how the deceased got possession of the two instruments in question there was no evidence, other than the testimony of Roberts. In no way was his testimony impeached. ...