Hicks v. National Life Ins. Co.

• Decision Date: 27 February 1894
• Docket Number: 70.
• Citation: 60 F. 690
• Parties: HICKS et al. v. NATIONAL LIFE INS. CO.
• Court: U.S. Court of Appeals — Second Circuit

60 F. 690

HICKS et al. v. NATIONAL LIFE INS. CO.

No. 70.

United States Court of Appeals, Second Circuit.

February 27, 1894

Action by Horace L. Hicks and Henry W. Taft, executors of Walter Rae, against the National Life Insurance Company. The trial court directed a, verdict for defendant, and the plaintiffs bring error.

The plaintiffs in error were the plaintiffs in the court below and brought the action to recover the amount of 10 endowment bonds, in substance policies of insurance, for $1,000 each issued by the defendant March 2, 1888, payable at the expiration of 20 years to Walter Rae, or, in case of his death before that time, to his legal representatives, in 60 days after presentation of satisfactory proofs of his death. Rae died December 10, 1891. Proofs of his death were duly served upon the defendant, and the 60 days having expired and payment been refused by the defendant, the suit was brought. It was alleged in defense that the policies had become forfeited and void, according to their conditions, by reason of the nonpayment of installments of annual premiums which became due and payable upon the 2d day of December 1891. Evidence was introduced by the plaintiffs upon the trial for the purpose of showing that there had been a course of previous dealings between the defendant and the assured which amounted to a waiver of strict performance of the condition, and authorized the assured to suppose that payment of the premiums within a reasonable time after the day of payment would be satisfactory to the defendant. The plaintiffs also insisted that there was not a forfeiture of the policies, because the defendant had not complied with a statute of this state enacted in 1877, which declares that no life insurance company doing business in the state of New York shall have power to forfeit any policy thereafter issued, by reason of nonpayment of any annual premium or interest, or any part thereof, except as follows: '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 be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Provided, however, that a notice stating when a 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.' At the time of issuing the policies, and from thence until after the death of the assured, the defendant was doing business as a life insurance company in this state, and had an agent and an office at the city of New York. The assured was a resident of New Jersey, and effected the insurance by delivering through his agent an application at New York city to the general agent of the defendant, and receiving the policies there from the general agent. On the 2d day of November, 1891, the agent of the defendant mailed at New York city a notice properly addressed to the assured at his place of residence, which was as follows:

'You are hereby notified that a premium of $116 will fall due December 2nd, 1891, on contract No. 31756/60 & 31803/7 issued by the National Life Insurance Company of Montpelier, Vt., provided all previous premiums have been paid and said contract is otherwise in force, and that, unless the premium is paid when due, the policy, and all payments thereon, will become forfeited and void. This notice will not affect the provisions in said contract for 'cash surrender value,' 'extended' or 'paid-up' insurance. This premium is payable at the home office, but, for the convenience of the assured, payment may be made, on or before the day when due, by currency, draft, check, or post-office order, to

'Joseph Wells, General Agent,

'151 Broadway, New York.'

It also appeared upon the trial that, at the time...