Equitable Life Assur. Soc. of United States v. Trimble

• Decision Date: 04 October 1897
• Docket Number: 367.
• Citation: 83 F. 85
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. TRIMBLE. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

83 F. 85

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. TRIMBLE. ^[1]

No. 367.

United States Court of Appeals, Ninth Circuit.

October 4, 1897

Burke Shepard & McGilvra, for plaintiff in error.

Geo. E De Steiguer, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This suit was brought upon a policy of assurance issued by the plaintiff in error, a New York corporation, upon the life of one Edward H. Fleming, a then resident of Fresno county Cal., payable upon his death to his wife, Sallie F. Fleming. Edward H. Fleming having deceased, the suit was begun October 17, 1895, by the beneficiary named in the policy, under the name of Sallie F. Redding; she, subsequent to the death of Fleming, and before the institution of the suit, having married one Redding. Thereafter to wit, February 3, 1896, upon suggestion to the court below of the death of Sallie F. Redding since the beginning of the action, and upon the production of letters of administration with the will annexed granted to William P. Trimble upon the estate of the deceased, Sallie F. Redding, the court, on the application of the administrator, made an order permitting him, as such administrator, to prosecute the action, and substituting him as plaintiff therein, of which due notice was given the defendant's attorneys. The trial of the cause resulted in a judgment for the plaintiff. The main point presented and argued on the part of the plaintiff in error is that the policy sued on was not a New York contract, and therefore not governed by the New York statute in relation to life insurance companies. The facts in relation to that question, it is conceded in the brief for the plaintiff in error, are substantially the same as the facts in the case recently before this court, entitled Equitable Life Assur. Soc. v. Nixon (81 F. 796), which case was decided by this court at the last term against the contention of the plaintiff in error. Under the ruling there made, the policy sued on here must be held to be a New York contract, and therefore governed by the statute of that state, which is as follows:

'Section 1. No life insurance company doing business in the state of New York shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of non-payment of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or interest due upon any such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the place where said premium or interest should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company, at his or her last known post-office address, postage paid by the company, or by an agent of such company or person appointed by it to collect such premium. Such notice shall further state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent, or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void. In case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the requirements of the policy in respect to the payment of said premium or interest, anything therein contained to the contrary notwithstanding; but no such policy shall in any case after the mailing of such notice: provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for. ' Laws N.Y. 1877, c. 321.

The decision of this...