O'Brien v. Union Mut. Life Ins. Co.

• Decision Date: 01 January 1884
• Citation: 22 F. 586
• Parties: O'BRIEN v. UNION MUT. LIFE INS. CO. [1]
• Court: U.S. District Court — District of Minnesota

22 F. 586

O'BRIEN v. UNION MUT. LIFE INS. CO. ^[1]

United States Circuit Court, D. Minnesota.

December Term, 1884

Thomas H. Quin, for plaintiff.

A. D Keyes, for defendant.

NELSON J.

This suit is brought by Mary O'Brien against the Union Mutual Life Insurance Company, to recover upon a policy of insurance, dated December 4, 1884, for $1,000. The insured Richard J. Vaughan, died March 16, 1883. The evidence showed that among his papers was found this policy on his life payable to his mother, Mrs. Vaughan, now Mrs. Mary O'Brien, accompanied by a receipt, signed by the agent of the insurance company in the state of Minnesota, for the amount of the first premium; and the policy, with the admission of death, and the receipt, being offered, the plaintiff is entitled to a judgment, unless the defendant can overcome the prima facie case presented upon the proof thus offered by the plaintiff. The policy contains the following clause:

'If any premium, or any installment of premium, on this policy shall not be paid when due, the consideration of this contract shall be deemed to have failed, and the company shall be released from liability, except as hereinafter provided; and the only evidence of payment shall be the receipt of the company, signed by the president or secretary.'

And again:

'The contract between the parties hereto is completely set forth in this policy and the application therefor, taken together, and none of its terms can be modified, nor any forfeiture under it waived, except by an agreement in writing signed by the president or secretary of the company, whose authority for this purpose will not be delegated.'

The application for insurance substantially recites the same provision. In the application, which is a part of the policy, it is stated--

'That it will constitute no contract of insurance until a policy shall first have been issued and delivered by the said company, and the first premium thereon actually paid, during the continuance of the life proposed for insurance in the same condition of health as described in the application.'

It appeared upon the trial that the application for insurance was taken on the solicitation of J. J. Hart, acting on the behalf of the defendant, who made it out and sent it to Minneapolis to the manager of the company for Minnesota and Dakota, A. K. Shattuck, who has general charge of the defendant's business. The application was dated November 27, 1882. No premium at that time was paid to Hart, but Vaughan promised to pay for the policy as soon as it is issued and was delivered. The application was sent to the superintendent of the western agencies at Chicago, and in due course of time the policy in suit and receipt, dated December 4, 1882, were received by the Minneapolis agent, who entered it in his register of policies, and inclosed it in an envelope with the following letter, dated December 11, 1882 and sent it to Vaughan: 'DEAR SIR: Inclosed find your policy 76,494. The first semi-annual premium will be due December 15, 1882. We trust you...