Coughlin v. Aetna Life Ins. Company

• Decision Date: 23 June 1923
• Court: North Dakota Supreme Court

194 N.W. 661

49 N.D. 948

ELLA R. COUGHLIN, as Administratrix, Respondent, v. AETNA LIFE INSURANCE COMPANY, Appellant

Supreme Court of North Dakota

June 23, 1923

Appeal from the District Court of Ward County, Burr, J.

Defendant appeals from an order denying its motion for judgment notwithstanding the verdict or for a new trial.

Affirmed.

Lawrence Murphy & Nilles, for appellant.

"If a motion is made within that time and continued by the consent of the parties or by action of the court until a later date, then the final character of the judgment is suspended." Gohl v. Bechtold, 37 N.D. 147.

"An application for a new trial on the judge's minutes is a motion. Cohen v. Krulewitch, 81 A.D. 147, 80 N.Y.S 689." 28 Cyc. p. 4.

"A motion is properly an application for a rule or order, made viva voce to a court or judge. It is distinguished from the more formal application for relief by petition or complaint." 41 Cal. 650.

"The motion is not made until it is submitted to or brought within the breast of the trial court and some affirmative action taken thereon either by the court or the adverse party. The successful party cannot by his own act and by the mere service of a notice of hearing of a proposed motion for a new trial at such future time as he may see fit to designate suspend and keep in abeyance the final and conclusive character of the judgment." Gohl v. Bechtold, 37 N.D. 147.

"The careful practitioner will either prepare and file his motion in writing, stating the grounds thereof, or have the same entered in the minutes. This is not necessary, however. The motion may be made orally. Herrlich v. McDonald, 80 Cal. 472 22 P. 299." 28 Cyc. 4.

"A motion made in open court is equivalent to a written motion in the office. Seidel v. Hurley, 1 Woodw. 352." 35 Am. Dec. 3063.

"The grounds of the motion are often required to be stated in writing and filed. In practice the form of the application itself is often reduced to writing and filed. But making out and filing the application itself is not to make the motion." 41 Cal. 650. Taylor v. Northern Electric Ry. Co. (Cal.) 148 P. 545; Williams v. Hawley (Cal.) 77 P. 762.

"If a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Aspen. Min. etc., Co. v. Billings (1893) 150 U.S. 31, 37 L. ed. 986, 14 S.Ct. 196; Voorhees v. John T. Noye Mfg. Co. (1894) 151 U.S. 135, 38 L. ed. 101, 14 S.Ct. 295; Northern P. R. Co. v. Holmes (1894) 155 U.S. 137, 39 L. ed. 99, 15 S.Ct. 28; Kingman v. Western Mfg. Co. (1898) 170 U.S. 675, 42 L. ed. 1192, 18 S.Ct. 786.

"The six months' time does not begin to run until a motion for a new trial, filed in due time, is finally disposed of. Alexander v. U. S. (C. C. A. 9th Cir.; 1893) 57 F. 828; Louisville Trust Co. v. Stockton (C. C. A. 5th Cir.; 1896) 41 U.S. App. 434, 18 C. C. A. 408, 72 F. 1." Schumacher v. N. Ry. Co. 23 N.D. 236.

Notice of intention to move for a new trial may be waived. Gibson v. Berryman, 12 Cal.App. 330, 111 P. 926.

When both parties by stipulation waived notice of intention to move for a new trial, the court had jurisdiction to order a new trial. Id.

One who appears at the time and place set for a hearing of the motion for a new trial, and orally agrees to the brief of evidence filed with the motion, but who, after the judge has corrected and approved the brief of evidence moves to dismiss the motion for want of service, waives formal service of the motion. Summerford v. Kinard, 8 Ga.App. 253, 68 S.E. 955.

Where attorneys for the respective parties have signed a stipulation waiving notice of the time and place of hearing and passing upon a motion for new trial, the judge is justified in passing on the same without notice to the adverse party. Buckle v. McConaghy, 12 Idaho 733, 88 P. 100.

"Service of notice of intention to move for a new trial may be waived." Curn v. Perkins, 40 Mont. 588, 107 P. 901.

"A valid stipulation concerning any matter properly before the court acts as an estoppel upon the parties thereto and is conclusive of all matters necessarily included in the stipulation." 36 Cyc. 1292.

"If a person by his conduct induces another to believe in the existence of a particular state of facts, and the other acts therein to his prejudice, the former is estopped, as against the latter to deny that the state of facts does in truth exist." 21 C. J. p. 1060.

"'Estoppel' by silence arises where a person who by force of circumstances is under a duty to another to speak refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to his prejudice." 21 C. J. p. 1061.

"To deny appellant the means of properly presenting his appeal is in effect to defeat his right of appeal, and a construction so drastic as to produce such result is usually applied only in cases where the appellant is acting in bad faith or is guilty of gross laches."

The general rule laid down in the note to Northwestern Mut. L. Ins. Co. v. Neafus, 36 L.R.A.(N.S.) 1211, where the early cases upon the question under consideration are gathered, to the effect that mere delay in passing upon an application for insurance cannot be construed in an acceptance by the insurer, is supported by the result reached in Dorman v. Connecticut F. Ins. Co., and is also supported by the only other case which has been disclosed passing upon the point since the writing of the note referred to.

Thus in Shawnee Mut. F. Ins. Co. v. McClure, 39 Okla. 535, 49 L.R.A.(N.S.) 1054, 135 P. 1150, where a soliciting agent of limited authority did not mail an application and the premium for fire insurance until four days after he received them, and an investigation of the risk was being made by the insurer when the property was burned two days after the application was forwarded, the court said that it could not be contended that the insurer held the application and premium so long, or otherwise conducted itself in such a way in reference thereto, as to be tantamount to an acceptance, remarking that it was not necessary to cite the many cases holding that mere delay in accepting an application does not raise a presumption of acceptance. Dorman v. Connecticut F. Ins. Co. 51 L.R.A.(N.S.) 873-875.

Nor does the mere retention of both application and the premium, without any action thereon, constitute a contract of insurance. Van Arsdale v. Young, 21 Okla. 151, 95 P. 778; Northwestern Mut. L. Ins. Co. v. Neafus, 36 L.R.A.(N.S.) 1211, and note (145 Ky. 563, 140 S.W. 1026); 1 Beach, Ins. 499; 1 May, Ins. § 43H.

An unaccepted application for insurance, accompanied by the premium, although retained without notice of objection for five days after its date, and until the applicant has suffered the loss against which he desired the insurance, is not a contract of insurance.

Acceptance of an application may ordinarily be inferred from the retention and application of the premium; but when there is evidence reasonably tending to show that there was no such acceptance in fact, the law does not imply acceptance from such retention; and the adverse finding and judgment in the trial court are conclusive against appellant's claim of acceptance. Dorman v. Connecticut F. Ins. Co. 51 L.R.A.(N.S.) 874.

On the contrary, all the authorities we have examined hold that when an application for insurance is made, and a receipt given as in this case, for the first premium, mere delay in acting upon an application that, if acted on, would be rejected, does not fix liability upon the company from its date, when the application is made, subject to approval by the company, and it is expressly provided in the contract that the insurance shall not relate back, unless the application is accepted. There is quite a difference between an offer to enter into a contract that may or may not be accepted, and a contract that has been executed.

Without extending the opinion in quoting from the cases, we refer to the following as fully supporting the principles announced; New York L. Ins. Co. v. Levy, 122 Ky. 457, 5 L.R.A.(N.S.) 739, 92 S.W. 325; Providence Sav. Life Asso. Soc. v. Elliott, 29 Ky. L. Rep. 552, 93 S.W. 659; Hills v. Penn Mut. L. Ins. Co. 28 Ky. L. Rep. 790, 90 S.W. 544; Commonwealth L. Ins. Co. v. Davis, 136 Ky. 339, 124 S.W. 345; Travis v. Nederland L. Ins. Co. 43 C. C. A. 653, 104 F. 486; Mutual L. Ins. Co. v. Young, 23 Wall. 85, 23 L. ed. 152; Mohrstadt v. Mutual L. Ins. Co. 52 C. C. A. 675, 115 F. 81; Alabama Gold L. Ins. Co. v. Mayes, 61 Ala. 163; Misselhorn v. Mutual Reserve Fund Life Assn. (C. C.) 30 F. 545; 1 Cooley, Briefs on Ins. p. 426; Northwestern Mut. L. Ins. Co. v. Neafus, 36 L.R.A.(N.S.) 1211-1217.

Mere delay in passing upon an application for accident insurance cannot be construed into an acceptance by the insurer. 15 A.L.R. 1021.

"In an action against an insurance company for negligently failing to issue an accident policy, evidence as to the short time that elapsed between the making of the application and the time the insured was injured, and of the circumstances, held to justify a direction of verdict for defendant." Glendy v. National Traveler's Ben. Asso. 163 N.W. 352.

(1) "Mere delay in passing upon an application for accident insurance cannot be construed into an acceptance by the insurer.

(2) "No cause of action against an insurance company for delay in issuing the policy accrues to the administrator of the applicant upon the latter's instant death by accident before the policy is issued." Bradley v. Federal L Ins. Co. 295 Ill....