Eagle v. New York Life Ins. Co.

• Decision Date: 13 May 1910
• Docket Number: No. 7,032.,7,032.
• Citation: 48 Ind.App. 284,91 N.E. 814
• Parties: EAGLE v. NEW YORK LIFE INS. CO.
• Court: Indiana Appellate Court

48 Ind.App. 284

91 N.E. 814

EAGLE

v.NEW YORK LIFE INS. CO.¹

No. 7,032.

Appellate Court of Indiana.

May 13, 1910.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Mary W. Eagle against the New York Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Joseph Collier and J. H. Kingsbury, for appellant. James H. McIntosh and Gavin, Gavin & Davis, for appellee.

COMSTOCK, J.

This action was based upon a contract of insurance executed by appellee on the life of one Charles D. Eagle, husband of appellant. The policy was for $1,500, and appellant was designated as beneficiary therein.

The complaint alleges that on the 13th day of July, 1897, the defendant executed its contract of insurance, whereby, in consideration of application made therefor and payment of premiums thereon, defendant promises to pay to the plaintiff on the death of one Charles D. Eagle the sum of $1,500 on due proof of death of said Eagle. The defendant further promises in event premiums are paid thereon for a period of nine years and thereafter further payments of premiums were defaulted, then, if said Charles D. Eagle should die within a period of seven years and eleven months from the time of such default, it would pay to the beneficiary the sum of $1,500. A copy of the contract of insurance and application made therefor is filed with the complaint, and marked “Exhibit A.” Plaintiff further avers that the premiums were paid in advance on said contract of insurance in accordance with the stipulations therein for a period of nine years from date of execution thereof to and including the year ending July 13, 1906; that the semiannual premium due and payable on the 13th day of July, 1906, was not paid on said day, nor was the same paid within 30 days grace allowed by said policy;that afterwards, to wit, January 27, 1907, within said period of 7 years and 11 months as stipulated in said contract for extended insurance, said Charles D. Eagle died; that she has made full proof of insured's death and in the manner provided in said contract; that she and the insured have performed all the stipulations in said contract on their part to be performed; that defendant, in violation of the terms of said contract, refuses to pay the said sum of $1,500, and denies liability under said contract; that there is due, etc.

The main body of the policy reads: “New York Life Insurance Company by this policy of insurance agrees to pay fifteen hundred dollars to Mary W., wife of the insured, or, in the event of her prior death, to the insured's executors, administrators, and assigns, or to such other beneficiary as may be designated by the insured as hereinafter provided, at the home office of the company, in the city of New York, immediately upon receipt and approval of proofs of the death of Charles D. Eagle, of Indianapolis, in Marion county, state of Indiana. *** And the company further agrees that this policy shall be incontestable after it has been in force one full year, if the premiums have been duly paid. This contract is made in consideration of the written application of the insured which is a part of this contract, and in further consideration of the sum of fifteen dollars and ninety-six cents, to be paid in advance, and of the payment of a like sum on the thirteenth day of January and July in every year thereafter during the continuance of this policy. The special advantages, benefits, and provisions printed or written by the company on the following pages are conditions precedent and are a part of this contract, as fully as if they were recited at length over the signature hereto affixed. In witness whereof,” etc. Under the title of “Special Advantages,” subdivision “A.-Table loans,” etc., certain loan and surrender values and provisions for extensions are shown as follows: Loan value at the end of the eighth year, $99; at the end of the ninth year, $117; the surrender value in paid-up insurance at the end of the ninth year, $277; and the “extended insurance for $1,500 for a term of seven years and eleven months for the ninth year.” The table for the other advantages it is needles to set out for the purposes of this opinion, nor the accumulation of guaranties, because they are not applicable to this policy. Under the title “Benefits and Provisions” said policy contains the following provisions: “*** Second. The amount loaned at any time shall be such as the insured may desire, not to exceed the sums shown in the table on the preceding page. The amount of any loan shall include any previous loan then unpaid. Third. That this policy shall be duly assigned to the company as collateral security for the loan, and deposited at the home office. A duplicate of the loan agreement, which is also a receipt for the policy, will be furnished to the insured.” The application is set out, and it shows that the “name of the person applying for insurance is Charles D. Eagle.” In this application it is agreed on behalf of himself “or any person who shall have or claim any interest in any policy issued under this application,” among other things, as follows: “Sixth. That the policy applied for shall be in the form now in use by the company and that the contract contained in such policy and this application shall be construed according to the law of the state of New York, the place of said contract being agreed to be the home office of the company.” There was an offer to confess judgment for $52 and costs accrued and accruing, including those on final judgment.

Appellee answered in two paragraphs- first, general denial, and, second, a special and partial answer to all except $49 of the principal and the interest thereon from the time of the death of the insured. It admits the execution of the policy sued on, and avers that the appellee is a corporation organized under the laws of the state of New York, with its general offices in the city of New York, in said state, and that it is a resident and citizen of said state; that said policy was executed in the city of New York; that one of its provisions was that “the company will make advances to the insured as such under this policy within the month of grace allowed for payment of premiums, on application to the home office at the third or any subsequent anniversary of the insurance within the accumulation period under the terms of the company's loan agreement then in use, upon the conditions in said policy set forth”; that insured paid the premiums up to and including the one maturing on January 13, 1906; that the premium maturing July 13, 1906, was wholly unpaid; that while the policy was in force on July 20, 1905, the appellee, pursuant to its terms and at the request of said Charles D. Eagle and appellant, advanced to them $99 in cash as a loan upon said policy, and in consideration thereof they executed to appellee in New York, in the state of New York, the following policy loan agreement: “Policy Loan Agreement. Whereas, the undersigned have this day duly received from the New York Life Insurance Company, ninety-nine and 00/100 dollars ($99.) in cash, as a loan upon policy No. 803,039 issued by said company on the life of Charles D. Eagle: Therefore: in consideration of the premises, the undersigned hereby agree as follows: (1) To pay said company interest on said loan at the rate of five per cent. per annum, payable in advance from this date to the next anniversary of said policy and annually in advance on said anniversary and thereafter. (2) To pledge, and do hereby pledge said policy as collateral security for the payment of said loan and interest, and herewith deposit said policy with said company at its home office. (3) To pay said company said sum when due with interest, reserving, however, the right to reclaim said policy by repayment of said loan with interest at any time before due, said repayment to cancel this agreement without further action. (4) That said loan shall become due and payable (a) either if any premium on said policy or any interest on said loan is not paid on the date when due, in which event said pledge shall without demand or notice of any kind, every demand and notice being hereby waived, be foreclosed by said company by deducting the amount due on said loan from the reserve on said policy computed according to the American Experience Table of Mortality and interest at the rate of four and one-half per cent. per annum, and, if after said deduction there is any balance of said reserve as so computed, said balance shall be taken as a single premium of life insurance at the published rates of said company at the time said policy was issued, and shall be applied to purchase upon the life of the insured under said policy, at the age of said insured on said due date, paid-up insurance for such amount as said balance will buy payable under the same conditions as the original policy, but without premium return, participation in profits, or further payment of premium; (b) or (1) on the maturity of the policy as a death claim or an endowment, (2) on the surrender of the policy for a cash value, (3) on the completion of any tontine or accumulation dividend period. In any such event the amount due on said loan shall be deducted from the sum to be paid or allowed under said policy. (5) That the application for said loan was made to said company at its home office in the city of New York, was accepted, the money paid by it, and this agreement made and delivered there; that said principal and interest are payable at said home office, and that this contract is made under and pursuant to the laws of the state of New York, the place of said contract being said home office of said company. In witness whereof the said parties have hereunto set their hands and affixed their seals this 20th day of July, 1905. Chas. D. Eagle. [L. S.] Mary W. Eagle. [L. S.] Signed and sealed in presence of Mary C. McComb. Foreclosed and paid by deducting the...