Jackson v. New York Life Ins. Co.

• Decision Date: 14 September 1925
• Docket Number: No. 4463.,4463.
• Citation: 7 F.2d 31
• Parties: JACKSON et al. v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.2d 31 (1925)

JACKSON et al. v. NEW YORK LIFE INS. CO.

No. 4463.

Circuit Court of Appeals, Ninth Circuit.

August 3, 1925.

Rehearing Denied September 14, 1925.

Botts & Winslow, of Tillamook, Or., for plaintiffs in error.

Huntington, Wilson & Huntington, of Portland, Or., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

The law applicable to the question here involved is fairly and we think correctly stated in 32 C. J. 1127, where it is said: "A policy of insurance is delivered to insured when it is deposited in the mails, duly directed to insured at his proper address and with postage prepaid, even though in fact he never receives it. Likewise the policy is constructively delivered when it is mailed to an agent unconditionally and for the sole purpose of delivery to insured, even though the agent does not actually deliver the policy to the insured. But the rule is otherwise when the policy is mailed to the agent for delivery only on the performance of certain conditions." The text is well supported by authority. New York Life Ins. Co. v. Rutherford (C. C. A.) 284 F. 707 (certiorari denied 262 U. S. 745, 43 S. Ct. 521, 67 L. Ed. 1211); Yonge v. Equitable Life Assur. Soc. (C. C.) 30 F. 902; New York Life Ins. Co. v. Babcock, 104 Ga. 67, 30 S. E. 273, 42 L. R. A. 88, 69 Am. St. Rep. 134; New York Life Ins. Co. v. Mason, 151 Ark. 135, 235 S. W. 422, 19 A. L. R. 618; Glover v. New York Life Ins. Co., 27 Ga. App. 615, 109 S. E. 546; New York Life Ins. Co. v. Pike, 51 Colo. 238, 117 P. 899; Kilborn v. Prudential Ins. Co., 99 Minn. 176, 108 N. W. 861; Mutual Life Ins. Co. v. Reid, 21 Colo. App. 143, 121 P. 132; Denton v. Kansas City Life Ins. Co. (Tex. Civ. App.) 231 S. W. 436; Stephenson v. Allison, 165 Ala. 238, 51 So. 622, 138 Am. St. Rep. 26; Wenz v. Business Men's Acc. Assn., 212 Ill. App. 581; Coci v. New York Life Ins. Co., 155 La. 1060, 99 So. 871; New York Life Ins. Co. v. Greenlee, 42 Ind. App. 82, 84 N. E. 1101; Folds v. New York Life Ins. Co., 27 Ga. App. 435, 108 S. E. 627; Unterharnscheidt v. Missouri State Life Ins. Co., 160 Iowa, 223, 138 N. W. 459, 45 L. R. A. (N. S.) 743.

In several of the cases so cited the stipulations were identical with that which is involved in the case at bar, and the courts regarded the words "received by" as adding nothing to the meaning of the words "delivered to." In the case last above cited the court said: "If the premium is paid when the application is presented, and such application is approved and policy executed as of that date, and nothing remains but to deliver the paper to the insured, it may well be held that the sending of it to the agent, to be by him given over to such insured person, constitutes a sufficient delivery in law."

The present case is one in which prior to the death of the insured, the policy was mailed to the local agents at Tillamook for the sole purpose of delivery to the insured. The stipulation that the insurance "shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime" does not take the case out of the rule, for the first premium had been paid at the time of making the application, and during the lifetime of the applicant...