Connecticut General Life Ins Co. v. Mullen

• Decision Date: 01 July 1912
• Docket Number: 31 (1,596).
• Citation: 197 F. 299
• Parties: CONNECTICUT GENERAL LIFE INS. CO. v. MULLEN.
• Court: U.S. Court of Appeals — Third Circuit

197 F. 299

CONNECTICUT GENERAL LIFE INS. CO. v. MULLEN.

No. 31 (1,596).

United States Court of Appeals, Third Circuit.

July 1, 1912

William S. Dalzell, of Pittsburgh, Pa. (Dalzell, Fisher & Hawkins, of Pittsburgh, Pa., on the brief), for plaintiff in error.

Ernest C. Irwin, of Pittsburgh, Pa. (T. Chalmers Duff, on the brief), for defendant in error.

Before GRAY, Circuit Judge, and McPHERSON and RELLSTAB, District judges.

GRAY Circuit Judge.

The plaintiff below brought his action to recover the amount of a policy of life insurance alleged to have been issued upon the life of his brother, now deceased, in which he, the plaintiff, was beneficiary. Compliance was alleged upon the part of the insured with all requirements necessary to make said policy a valid, subsisting contract, and refusal upon the part of the Insurance Company to pay plaintiff the amount named in the policy.

To the statement of claim, the defendant set up the defense that there never had been any contract of insurance consummated that prior to the time the policy went into effect, the applicant for insurance was in such a condition of health as to render it impossible for the Insurance Company to accept him as a risk. The facts of the case are undisputed and are briefly, these:

On Monday, the 7th day of December, 1909, William C. Mullen signed his application for a policy of life insurance of a given kind, to be issued by the defendant below, in favor of his brother, the plaintiff below. This application was made through the authorized general agents of the defendant company in the city of Pittsburgh, and was promptly forwarded by them to the general office of the defendant company at Hartford, Conn., where it arrived on Wednesday, the 9th day of December, 1909. At the time of filing the application, it was understood between the applicant and the agents, that applicant should have 60 days from December 7, 1909, if he became insured, within which to pay the first premium upon such policy of insurance as should be issued, and notice of this understanding was given by said agents to the defendant company in forwarding the application to the home office in Hartford, and the defendant, in its affidavit of defense admits that by its duly authorized agents it did make such an agreement with the said William C. Mullen. The application thus received on the 9th day of December, 1909, with the doctor's certificate, was acted upon promptly and on that day a policy upon the life of William C. Mullen, the applicant, was duly authorized. On Thursday, the 10th day of December, 1909, a policy of life insurance was mailed from the home office at Hartford to the general agents of the company in Pittsburgh.

The application described the health of the applicant as being good, and contained the usual covenant as to the truth of the statements and answers made therein. The policy contains this provision:

'Payment of Premiums: This policy shall not take effect unless nor until the first premium is actually paid, while the insured is in the same condition of health as described in the application.'

When the application was accepted and the policy authorized and mailed on the 10th of December to the Pittsburgh agents, it is conceded that W. C. Mullen was in the same state of health as when the application was made....