Connecticut Mut. Life Ins. Co. v. Duerson's Ex'r

• Decision Date: 12 July 1877
• Citation: 69 Va. 630
• Parties: CONNECTICUT MUT. LIFE INS. CO. v. DUERSON'S ex'or.
• Court: Virginia Supreme Court

69 Va. 630

CONNECTICUT MUT. LIFE INS. CO. v. DUERSON'S ex'or.

Supreme Court of Appeals of Virginia.

July 12, 1877

1. Contracts of insurance entered into before the late war between parties afterwards separated in domicil by the belligerent lines, were not abrogated, but only suspended, by the war. Acc. Ins. Co. v. Hendren, 24 Gratt. 546 and cases there cited.

2. This suspension extends to the stipulation requiring payment of premiums at dates falling within the period of such separation.

3. Nor in such case is it material whether tender of such payment was made at the day or not, even though the insurer's agent, resident in the state of the domicil of the insured prior to the war, continued to reside there on the same side with the insured whilst the insurer and insured were so separated.

4. If such tender would in any case be material, it will at any rate not be when before the premium in question became due such agent had publicly proclaimed his purpose not to receive any more premiums, which declaration was probably made known to the insured and was the cause of the failure to tender and especially when insurer after the war refused to ratify the act of said agent in receiving payment of a premium from another person as much as a month before the premium in question was due.

5. In such case, however, it is the duty of the insured to tender payment within a reasonable time after the war, if living and his failure so to do will occasion a forfeiture of the policy.

6. But in case of the death of the insured pending the war, his personal representative would be under no obligation to make such a tender, for then there would be in the hands of the insurer a fund of the insured out of which he could deduct the unpaid premium. Nothing more would then be necessary on the part of the insured than that the insurer should within a reasonable time from the ending of the war be informed of such death and of its date.

7. Such information will be sufficient though unaccompanied by any formal demand of payment or assertion of right to it.

8. An insurance company chartered by another state, but doing business in this state in compliance with the statutes of 1855-'6, is to be considered, for the purpose of being sued, as domiciled in this state, and is entitled to rely on the statute of limitations just as if it were a company which had been chartered by the legislature of this state.

9. The several acts of the government of Virginia during the war suspending the statutes of limitations, were valid to prevent the running of said statutes to 3d March 1866. Acc. Johnston v. Gill, 27 Gratt. 587. And the time from 2d March 1866 to 1st January 1869 is to be left out of the computation under said statutes by virtue of the seventh section of the act of March 2d, 1866. commonly known as the stay law. Acc. Danville Bank v. Waddill, 27 Gratt. 448.

10. Though such company had after the war expressly revoked the powers of the resident agent it had before the war, and had never afterwards, appointed another in his place, service of process on such agent will nevertheless be effectual under the statutes in that behalf to give jurisdiction of an action against such company.

11. The provisions of said statutes of 1855-'6 were amendatory of the previous law, and extended as well to policies previously issued as to policies thereafter issued; and a foreign company doing business in the state under the same at the time said amendments were enacted, and continuing to do business afterwards in compliance with all said statutes, must be taken to have accepted said provisions and to be bound by them.

This case was heard at Richmond, but was decided at Wytheville. It was an action of assumpsit in the circuit court of Spotsylvania county, brought in December 1873, by William R. Duerson, executor of Robert C. Duerson, deceased, against the Connecticut Mutual life insurance company, to recover the amount of two policies of insurance upon the life of the said Robert Duerson issued by the said company. The process was served on A. A. Little, who had been the general agent of the company.

Upon the calling of the cause in September 1874, the defendant, by counsel, moved the court to quash the process in the cause, on the ground that the defendant had, in 1861, revoked the agency of A. A. Little in Virginia, and declined to reinstate it after the war, on account of the change in the legislation in Virginia by the act of February 1866, affecting foreign insurance companies.

It appeared from the evidence, that A. A. Little was an agent of the company from 1850 to some time in 1861, when the war breaking out, communication was cut off with Hartford, Connecticut, the home of said company, and he ceased to act as agent; and his agency was formally revoked by the company in March 1866; that he had done no act as agent of said company since; and no agent of the company had since been appointed in Virginia.

The company further insisted in behalf of said motion, that these contracts of insurance were made in 1850 and 1851, before the act of 1855-'56, which first required foreign insurance companies in Virginia to appoint an attorney to accept service of process in any suit against said company; and said act was therefore no part of the contract of insurance in these cases, and the company could not be required to retain an attorney in Virginia to accept service of process in this case. And second, that the act of 1855-'56 had been repealed by the act of February 3rd, 1866, inaugurating an entirely new policy, and requiring new regulations, licenses and deposits of foreign insurance companies doing business in Virginia; and the defendant declining to continue its business in Virginia, because of said legislation, has now no agent in Virginia, and no party upon whom process against said company in this case can be legally served.

But it was shewn in evidence, that in April 1856, the company executed a power of attorney, appointing Little their agent in Virginia, to accept service of all lawful processes against the company in the state of Virginia, and to cause an appearance to be entered in any action, in like manner as if the company had existed and been duly served with process within said state. And this power of attorney was filed in the office of the auditor of the state. It appeared further, that Little made his returns to the auditor, and paid the tax on the premiums received by him from May 1st, 1859, to May 1st, 1861.

The court overruled the motion to quash the process; and the defendant excepted.

The cause came on for trial on the 12th of December 1874, upon the general issue, with leave to the defendants to prove anything under that issue that they might prove under any special pleas; and when all the testimony had been introduced before the jury, the defendant demurred to the evidence, and the plaintiff joined in the demurrer. There was a verdict for the plaintiff for $3,500, with interest from, & c., subject to the demurrer; and the court holding that the evidence was sufficient to sustain the plaintiff's action, rendered a judgment upon the verdict in his favor for the amount. And thereupon the defendant applied to a judge of this court for a writ of error and supersedeas; which was allowed.

R. C. Duerson, of Spotsylvania county, Virginia, effected with the said company, a corporation chartered by the state of Connecticut, and having their home office in Hartford, through their agent in and for Virginia, A. A. Little, of Fredericksburg, two policies of insurance upon his life, dated respectively 10th June 1850, and 9th June 1851, one for $2,000, and the other for $1,500, and numbered 9,990 and 14,678 respectively.

By these policies, the company in consideration of the payment of the respective sums named therein by said Duerson, and of the annual premiums named, to be paid on or before the 9th and 10th days of June respectively in every year during the continuance of said policies, assure the life of said Duerson in the said respective amounts of $2,000 and $1,500 " for the term of the whole continuance of his life." And said company promise and agree to pay said sums within ninety days after due notice and proof of the death of said Duerson, deducting therefrom all notes taken for premiums unpaid at that date. There are numerous provisos and conditions, as usual, contained in said policies, none of which are material to this case, or necessary to be adverted to, except the clause which provides, that in case the assured shall not pay the said annual premiums on or before the several days therein before mentioned for payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured, or any part thereof, and the policies shall cease and determine, and all interest shall be forfeited.

The premiums upon these policies were regularly and promptly paid or settled for by Duerson with said Little up to and including the premiums falling due on the 9th and 10th days of June respectively, 1860, by which said policies were continued in force for the years following said dates. Before the next premiums fell due, to wit: the 9th and 10th days of June 1861, the great war between the Confederate States, of which Virginia was one, and the United States, of which Connecticut was one, had intervened. All intercourse with the north, the home of the company, had ceased, and the agent who, as well as the insured, resided in Fredericksburg, had publicly and freely proclaimed in the town-- there being a number of policy holders therein--before said dates, that he would not receive any premiums from any policy holders. And after the war the company refused to allow a credit for the amount of a premium...