Jackson v. New York Life Ins. Co.

• Decision Date: 28 April 1924
• Docket Number: 9198.
• Citation: 299 F. 679
• Parties: JACKSON et al. v. NEW YORK LIFE INS. CO.
• Court: U.S. District Court — District of Oregon

299 F. 679

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

No. 9198.

United States District Court, D. Oregon.

April 28, 1924

Botts &amp Winslow, of Tillamook, Or., for plaintiffs.

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

BEAN District Judge.

This is an action on an insurance policy issued by the defendant company on the life of Olin Wayne Jackson. On May 18, 1919 Jackson signed an application for insurance, which stipulated that the insurance should not take effect 'unless the first premium is paid and the policy is delivered to and received by me during my lifetime, and when so delivered the policy shall take effect as of the date of the application ' The applicant submitted to a medical examination, and the application and medical examination were forwarded in due time to the home office of the company in New York, and on May 28, 1919, the policy was issued and mailed to the Portland office of the company, with instructions to hold it until released by the medical board. It reached the Portland office on the 4th of June, and on that date was released by the medical board and was ready for immediate delivery; but it was held in the Portland office until the 16th of June, when it was forwarded to the soliciting agents at Tillamook for immediate delivery to the assured; but before delivery and on the morning of the 18th the assured was killed. Subsequently the beneficiaries brought an action at law on the policy, and the case was tried in this court, and a motion for a nonsuit allowed on the ground that, since the contract stipulated that the insurance should not take effect until the policy was delivered and received by the assured in his lifetime, and that was not done, there was no ground of recovery. Notice of appeal was served, bill of exceptions filed, but the case was abandoned by plaintiffs as stated by counsel in the argument here, because on examination he concluded that the court was probably right in its views.

But later the Circuit Court of Appeals, in the case of New York Life Insurance Co. v. Rutherford, 284 F. 708, held on a similar contract that receipt of the policy by the agent for immediate delivery will be taken as equivalent to a manual delivery to the assured. Now I am unable to distinguish the case at bar from the Rutherford Case. There is, however, this difference: The Rutherford Case arose in the state of Washington. That state had no law at the time...