John Hancock Mut Life Ins Co. v. McClure

• Decision Date: 29 December 1914
• Docket Number: 1886.
• Parties: JOHN HANCOCK MUT. LIFE INS. CO. v. McCLURE.
• Court: U.S. Court of Appeals — Third Circuit

218 F. 597

JOHN HANCOCK MUT. LIFE INS. CO. v. McCLURE.

No. 1886.

United States Court of Appeals, Third Circuit.

December 29, 1914

John M Freeman, of Pittsburgh, Pa., for plaintiff in error.

W Clyde Grubbs, of Pittsburgh, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

J. B McPHERSON, Circuit Judge.

This suit was brought by Elizabeth McClure of Pittsburgh, Pa., the widow of Harry McClure, and the beneficiary under two policies of life insurance, of $2,000 and $3,000 respectively. The policies were applied for by her husband, and were executed by the John Hancock Mutual Life Insurance Company at the home office in Boston and transmitted to the company's general agent in Pittsburgh. They were never delivered to the deceased, who died a few days after they reached Pittsburgh, and the plaintiff's position is that the company was bound to deliver, and therefore could not affect her right by refusing. The facts are as follows:

About the middle of March, 1912, Arthur Stroyd, who was merely a soliciting agent of the company, without authority to make contracts, approached the deceased on the subject of insuring his life. After some preliminary talk the agent called at the house of the deceased on March 18th or 19th with various papers relating to the matter, among them an application and a sample policy. These were discussed and explained, and the sample policy was left with the deceased. There is some dispute concerning the conversation that took place, but there is no doubt that the interview resulted in the signing of the application.

It asks for two ordinary life policies in favor of the plaintiff, in $2,000 and $3,000, and contains the agreement:

'That any policy which may be issued hereon shall take effect only in case it shall be delivered and the first premium or installment thereof actually paid during my lifetime, and that such delivery and payment shall constitute an acceptance of the policy and of all its conditions.'

The sample policy contained the following provisions, inter alia:

'In consideration of the representations in the application hereof, which is copied hereon and hereby made a part hereof, and of the premium,' etc., 'the John Hancock Mutual Life Insurance Company hereby insures the life of Harry A. McClure, * * * subject to the conditions and provisions hereinafter recited, ' etc.

'When in Effect. This policy shall not take effect until the first premium or regular installment as herein provided shall be actually paid during the lifetime of the insured.

'Policy and Application Entire Contract. This policy and the application herefor constitute the entire contract between the parties hereto. * * *

'Alteration and Indorsement. No modification or alteration hereof or indorsement hereon will be valid unless made by the president, a vice president, the secretary, or an assistant secretary, and no other person is authorized on behalf of the company to make, alter, or discharge this contract or to waive forfeiture. Agents are not authorized to modify or waive any of the terms and conditions of this policy, nor to extend the time for payment of premiums or other moneys due to the company, or to bind the company by making any promise or by accepting any representation or information not contained in the application for this policy.'

The application is dated March 19th, the medical examination took place on March 20th, and the policies were executed in Boston on March 23d. They were mailed immediately to the general agent in Pittsburgh, and arrived there on the morning of March 25th. During the same day they were handed to Mr. Stroyd for the purpose of delivery and collection of the premium. Meanwhile, however, the deceased had taken sick, and had consulted a physician on March 24th for what then appeared to be a severe cold. From that time forward he was continuously at home, and nearly all the time in bed, under medical treatment, until his death from pneumonia on March 31st. On March 25th, therefore, when Mr. Stroyd called up the deceased's home on the telephone and asked to see him, he was sick, and was so reported by the plaintiff in reply to the call. Thereupon the agent said that he would wait a few days before delivering the policies, in order to see what the result of the sickness might be. The plaintiff rejoined, telling the agent to deliver the policies at once and get the premium; but this was not done, and the plaintiff took no further steps until the end of August, when the present suit was brought. Stroyd was acting under the following standing instructions from the company:

'Delivery of Policies. ' Delivery' of a policy means the act of placing it in the insured's hands in exchange

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