Halle v. New York Life Ins. Co.

• Decision Date: 19 October 1900
• Citation: 58 S.W. 822
• Parties: HALLE et al. v. NEW YORK LIFE INS. CO. [1]
• Court: Kentucky Court of Appeals

58 S.W. 822

HALLE et al. v. NEW YORK LIFE INS. CO. ^[1]

Court of Appeals of Kentucky.

October 19, 1900

Appeal from circuit court, Jefferson county, chancery division.

"Not to be officially reported."

Action by Amalia Maria Halle and others against the New York Life Insurance Company to have a "conditional receipt" construed as a contract of insurance, and, if that cannot be done, to compel defendant to issue a policy of insurance. Judgment for defendant, and plaintiffs appeal. Reversed.

Kohn Baird & Spindle and W. S. Pryor, for appellants.

Humphrey & Davie, for appellee.

HAZELRIGG C.J.

Joseph Halle was a citizen of the city of Manaos, Brazil, South America, and on September 21, 1892, at the solicitation of one Garcia, general agent for the appellee company, applied to that company for an insurance on his life in the sum of 20,000 milreis, Brazilian currency, or about $10,920. The required medical examination was made, the application duly forwarded, and the first semiannual premium paid to the financial agents of the company. The following "Conditional Receipt" was then delivered to the assured: "Conditional Receipt. No. Z17,285. Age, 40 years. Amount, reis 20,000,000, 3,000. Table A. Insurance ordinary tontine. Premium, 459,000rs. 462,000. Payable half yearly. Manaos, Sept. 21, 1892. Received from Mr. Joseph Halle the sum of four hundred and sixty milreis, Brazilian money of the United States, to be applied to the first half-yearly premium on an insurance of twenty thousand milreis, Brazilian dollars, on the life of the same, for which a formal application is made to the New York Life Insurance Company provided that said application be accepted by said company and that a policy be issued by virtue thereof. If said insurance is issued, it should begin on September 21, 1892, subject to the conditions and clauses of the policies of the said company. It is further understood and agreed that, if the company does not issue the policy consistently with said formal application, the above-mentioned sum will be refunded to the bearer of this receipt, and in exchange for it. No one except the president, vice president, second vice president, or actuary is authorized to make, alter, or cancel contracts or waive forfeitures. This receipt will become null and void if any amendment or erasure is made in the printed form. [Stamp.] The company returns, in case of declining the risk, the amount in reis received, without interest, but without reduction. [Signed] New York Life Insurance Company, Subdepartment of Brazil. C. C. Simmons, Manager. M. Storch, Accountant. Countersigned by Bernardo Bockris & Co., Bankers." It is shown, by satisfactory and uncontradicted proof, that it was agreed between the agent and appellant that his insurance should begin on the date of the receipt when the first premium was paid. The application reached New York on the 25th of November, 1892, but seems not to have been either accepted or rejected. Instead of doing either, the company, on November 28, 1892, indorsed on the application: "Approved E20, November 28th, 1892. King." The application was for insurance on the ordinary life plan, with a tontine period of 15 years, the annual premium being 920 milreis. Two policies were then sent to the company's bankers on the plan proposed, the annual premium on which was 1,341 milreis. In March, 1893, Halle called at the company's bankers to pay his second premium, and learned of the proposed change in his insurance. He at once declined to accept the policies, and so wrote the company. This letter was...