Equitable Life Assur. Soc. v. Winning

• Decision Date: 16 October 1893
• Docket Number: 280.
• Citation: 58 F. 541
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WINNING.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 541

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WINNING.

No. 280.

United States Court of Appeals, Eighth Circuit.

October 16, 1893

Henry Hitchcock, for plaintiff in error.

James H. Austin, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge.

This is a suit on a life insurance policy for $2,500, which was issued on April 9, 1884, by the Equitable Life Assurance Society of the United States on the life of one Edward C Hiett. Hiett paid the annual premium which became due on said policy on the 5th day of April in each of the years 1885 1886, 1887, and 1888, but failed to pay the premium which became due on April 5, 1889. As the assured was a resident of Saline county, in the state of Missouri, at the time he became insured, and as the policy was delivered in that state, and the first premium was there paid, the contract evidenced by the policy is a Missouri contract, and is governed by the laws of that state, within the rule announced in Society v. Clements, 140 U.S. 226, 11 S.Ct. 822. Under the laws of that state which were in force when the contract was entered into, the policy in suit did not become forfeited or void for failure to pay the annual premium on April 5, 1889 but the assured was entitled to such temporary insurance thereunder as might be purchased with three-quarters of the net value of the policy on that date, computed on the American Experience Table of Mortality, with 4 1/2 per cent. interest per annum. Vide Rev. St. Mo. 1879, §§ 5983, 5985; Society v. Clements, supra. Hiett died on August 13, 1890, at the age of 35, and it is admitted that three-quarters of the net value of his policy on April 5, 1889, he having paid five full annual premiums previous to that date, was adequate to purchase temporary insurance to the amount specified in his policy for a period which expired on February 9, 1893. The Missouri statute securing the right to temporary insurance after the nonpayment of an annual premium, to which we have already referred, provides 'that notice of the claim and proof of the death shall be submitted to the company in the same manner as provided by the terms of the policy within ninety days after the decease of the insured,' (section 5985, supra;) and on the trial below the defendant company relied for its defense solely on the plea that Hiett's administrator did not give notice of his claim under the policy or submit proofs of death within 90 days next succeeding August 13, 1890. On the other hand, the plaintiff insisted that the provision requiring proofs of death to be submitted within 90 days had been waived by acts done and performed by the defendant company both prior and subsequent to the death of the assured.

As the assignments of error which we are called upon to review relate exclusively to the competency and sufficiency of the evidence which was received and relied upon in the circuit court to establish a waiver, it becomes necessary to state the character of that evidence somewhat in detail. It appeared from the face of the policy and the application therefor that, notwithstanding the laws of the state of Missouri, to which reference has been made, the defendant company nevertheless caused stipulations to be inserted therein that the policy should become void 'if any premium or any installment of a premium was not paid when due,' and that the assured should 'waive and relinquish all right or claim to any other surrender value than that provided in the policy, whether required by the statute of any state or not.' It was shown that a notice of the annual premium due on April 5, 1889, had been sent by the company to the assured in his lifetime, which contained a statement, in substance, that if such premium was not paid within one month after April 5, 1889, the said policy and all payments thereon would become forfeited. This notice was found by the administrator among Hiett's papers shortly after the death of the latter, and, as the administrator testified, it led him to believe that the policy was forfeited, and would not be paid, he having failed to find any receipt for the annual premium referred to in said notice among the papers of the deceased. It was further shown that the policy in suit was formally declared forfeited for nonpayment of the premium of April 5, 1889, by a resolution of the insurance committee of the defendant company at a meeting held at the home office in New York on May 31, 1889, and that the policy was thereafter borne on the company's books both at its home office and at its St. Louis office as a forfeited policy.

The acts done and performed after the death of the assured which the trial court permitted to be proven with a view of establishing a waiver were substantially these:

It was shown that some time in the month of December, 1890, the plaintiff was informed by a traveling insurance agent, with whom he chanced to converse, that under the laws of Missouri the policy in suit had not lapsed in consequence of the nonpayment of the premium of April 5, 1889, but was still in force. Shortly after receiving such information the plaintiff authorized an insurance agent by the name of Burks, who resided in Saline county, Mo., to obtain from the defendant company the necessary blanks for the purpose of making out the customary proof of the death of the assured. Burks made an application for such blanks on December 18, 1890, by a letter addressed to the defendant's manager at St. Louis, Mo., and in such letter stated in substance that the blanks were wanted for the purpose of making proof of the death of 'E. Hiet,' who was insured in the defendant company. To such letter the company's representative at St. Louis replied, under date of December 19, 1890, that he had searched the records of the company 'thoroughly,' and had failed to find 'the name of E. Hiet, or anything like it.' The policy was thereafter placed for collection in the hands of plaintiff's attorneys, Messrs. Austin & Austin, of Kansas City, Mo., and the following letter was written by said firm to Benjamin May, the defendant's manager at St. Louis, Mo., on January 6, 1891:

'Dear Sir: We have in our possession for collection the tontine savings fund policy of your company, assurance on the life of E. C. Hiett. The number of the policy is 275,727. The assured, E. C. Hiett, is now dead, of which fact we are informed you have been notified. Will you please send us at once forms of proofs of loss as required by your company, upon receipt of which we will have the same made out in due form, and send to you.

'Please give this your prompt attention, and oblige,

'Yours, truly,

Austin & Austin.'

On the 8th of January, 1891, the defendant's general agent replied to the foregoing letter, saying, in substance, that 'the policy on the life of Mr. E. C. Hiett, * * * according to the records of the St. Louis office, was forfeited for nonpayment of premium due April 5, 1889.' Under date of January 19, 1891, Messrs. Austin & Austin replied, in substance, that they claimed payment of the policy under the nonforfeiting law of Missouri, which entitled the assured to three years and eleven months extended insurance; and by return mail on January 20, 1891, they were advised by the company's agent at St. Louis that it was claimed by the company that the assured could waive the Missouri statute, and that the validity of such claim was pending before the supreme court of the United States for its decision in Wall v. Equitable Life. Two other communications relative to the claim passed between the parties in the month of February following, but they are not of sufficient importance to deserve special notice. The following letter, however, was written by the defendant's attorneys at St. Louis, Mo., to the plaintiff's attorneys on March 2, 1891:

'Messrs. Austin & Austin, Attorneys, New York Life Building, Kansas City, Mo.--Dear Sirs: Referring to your letter of the 19th of January to Ben May, Esq., manager in this city of the Equitable Life Assurance Society of New York, we beg to say that the claim which you represent of policy No. 275,727, in the name of E. C. Hiett, has been placed in our hands by the company. We are instructed to say that the company are not prepared to acknowledge the claim which you make under the nonforfeiture law of this state, in view of the fact that the application for this policy contained, among other things, an express agreement, in consideration of the agreements contained in said policy, to 'specifically waive and relinquish all right or claim to any other surrender value than that provided in the policy, whether required by the statute of any state or not.' This, as the company is advised, excludes the claim made by you under the nonforfeiture law of Missouri. We desire to add for your information that the question thus presented has heretofore arisen, and is now pending on appeal in the supreme court of the United States in the case of Equitable Life, &c., v. Clements, Admr., No. 340, Oct. term, 1890, in which we are of counsel for the company. We expect that the case will be argued and submitted within a few weeks from now, and that the decision thereof will be conclusive of the claim made by you. Under these circumstances, we submit whether your client's interest would be prejudiced by waiting until such decision is made, which presumably will be not later than May next, and of which we will promptly advise you. If, however, you should think best to bring suit against the company without waiting for that decision, we will thank you to advise us without delay, and in what court you will probably proceed.

'Yours, truly,

Hitchcock & Finklenburg.'

The receipt of the foregoing letter was acknowledged by...