Kohen v. Mutual Reserve Fund Life Ass'n

• Decision Date: 24 September 1886
• Citation: 28 F. 705
• Court: U.S. District Court — Eastern District of Missouri
• Parties: KOHEN v. MUTUAL RESERVE FUND LIFE ASS'N. [1]

28 F. 705

KOHEN v. MUTUAL RESERVE FUND LIFE ASS'N. ^[1]

United States Circuit Court, E.D. Missouri.

September 24, 1886

George W. Taussig, for plaintiff.

Wm. C & James C. Jones, for defendant.

BREWER J., (orally.)

This is a bill filed by the complainant, asking a decree compelling the execution of a life insurance policy, and, the alleged insured having died, the payment of the amount of the policy to the complainant.

The facts are that on November 7, 1885, Samuel Kohen made to the general agent of the defendant in this city his application for membership in the defendant company, and a policy of life insurance. The application was filled out; the examination had before the company's physician here; the initiation fee, the annual dues, and the fees of the physician paid to such general agent, and a receipt taken therefor. The papers thus prepared, were forwarded to the general office at New York, and received there on the ninth of November at 4 o'clock in the afternoon. The statements in the application showed that the applicant was a first-class risk and the statements are admitted to be true. On the tenth of November the application was passed to the medical director by him approved, and from him, in the regular course of business, it went to the executive committee of the defendant company, and one of its three members wrote upon it 'Approved,' signing his name. Apparently the application never passed away from the hands of the executive committee; and on the same day, the tenth or perhaps the eleventh of November, owing to information received by telegram from St. Louis, this approval was erased, and 'Declined' written and signed by the chairman of the executive committee. No certificate of membership was ever prepared, and no policy was ever issued. On the tenth of November the applicant was shot in the city of St. Louis, and died on the 12th. The details of the shooting are not disclosed by the testimony, but it is admitted that he was without fault in the transaction.so that it stands upon an application in all its forms showing a first-class risk, received by the defendant, and, upon the testimony, I must find accepted by it.

If that was all that there was in this case, under well-settled rules it would have to be held that the minds of the parties had come to a concurrence; that a contract was created between them, and the complainant entitled to relief. But the application contains this provision as to the time when the policy shall become operative and in force:

'That under no circumstances shall the certificate hereby applied for be in force until the actual payment to, and the acceptance of, the first annual dues by the association, and actual delivery of the certificate to the applicant, with a receipt for the payment of the first annual dues, signed by the president, secretary, or treasurer of the association, during the life-time of the applicant.'

While it may be conceded that a contract was entered into between these parties, it was a contract to become operative upon the happening of a certain condition; and it is competent, of course, for parties to stipulate as to when...