Kincaid v. New York Life Ins. Co., 6864.
| Decision Date | 25 July 1933 |
| Docket Number | No. 6864.,6864. |
| Citation | 66 F.2d 268 |
| Parties | KINCAID v. NEW YORK LIFE INS. CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George P. Garrett, of Orlando, Fla., for appellant.
J. L. Doggett, of Jacksonville, Fla., for appellee.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
The appeal is from the dismissal on motion of a bill in equity brought by Nellie T. Kincaid against New York Life Insurance Company on two identical policies of $5,000 each on the life of her husband, James Kincaid. The case is the same for each policy, and for simplicity one only will be referred to. The important facts alleged and to be taken as true are as follows: The policy which issued in 1920 required an annual premium payable in advance on June 30th of $250.05, including $12.75 for a total disability benefit one feature of which was that premiums would be waived beginning at the next ensuing anniversary of the policy. Grace of thirty days was allowed for payment of premiums. There was after the second year to be an annual apportionment of the company's surplus in dividends, which by an option exercised in the application were to be applied towards the payment of premiums; but the surrender value was defined as the reserve on the policy ascertained in a prescribed way and stated in a table, plus dividends standing to the credit of the policy, less a stated surrender charge. On a lapse of the policy the surrender value is applied to purchase extended insurance. An advance against the policy of $880 with 6 per cent. interest was made in June, 1927. On June 30, 1929, $52.80 interest was due and unpaid, making $932.80 to stand against $1,075 surrender value exclusive of dividends. On that date default was made in payment of the premium due. Thereupon quarterly premiums of $66.30 were arranged for, the first one to be paid July 30th, the last day of grace. Kincaid did not pay it. On August 6, 1929, the company notified him that the policy had lapsed for nonpayment. On August 8th he applied for reinstatement, making answers to questions touching his health. On August 16th the company for the first time notified him of dividends declared in June, 1928, and June, 1929, aggregating $122.85. On November 12, 1929, the reinstatement was put through with premiums paid up to December 30, 1929; probably, though not so alleged, by the use of the dividends. Premiums were afterwards paid through December, 1930, and $52.80 was paid as annual interest on the advance June 30, 1929, and June 30, 1930. In March, 1931, Kincaid claimed a total disability, and in reply the company, asserting false statements by him in obtaining the reinstatement, elected to rescind it and offered him a check for $489.75 for premiums and interest paid in making the reinstatement and since, stated the policy stood lapsed as of June 30, 1929, and that the reserve value on that date above the advance against the policy had purchased term insurance for one year and 204 days to January 20, 1931, which having passed, the policy stood expired. Kincaid denied any false statement, asked the company to withdraw its claim of rescission, and tendered the March, 1931, premium, which the company refused to accept. Correspondence continued without effecting any change in the company's position until June 12, 1931, when Kincaid cashed the check. He did not tender any premium on June 30th, and died September 18th before the next one fell due. It is alleged that there was in fact no false statement in connection with the reinstatement; that because of the dividends there was no lapse of the policy requiring a reinstatement; that the policy was in force when total disability occurred and stopped liability for premiums; that Kincaid never agreed to rescind his policy and did not tender the premium on June 30, 1931, because of the refusal to accept that of March 30th, and he did not in fact owe the June premium. It is alleged that the check sent him did not include the premium and interest paid June 30, 1929, nor any settlement for the cash surrender value on the policy at that date, and there was no consideration for any rescission of the policy, that he never agreed to any cancellation of it, and that the check sent him did not state that it was in full of all claims against the company. Judgment of dismissal was rendered on the ground that his cashing the check for $489.75 necessarily ended all claims under the policy.
Despite its equitable dress this is only a suit on the policy...
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