McClave v. Mut. Reserve Fund Life Ass'n

• Decision Date: 24 February 1893
• Citation: 26 A. 78,55 N.J.L. 187
• Parties: McCLAVE v. MUTUAL RESERVE FUND LIFE ASS'N, (two cases.)
• Court: New Jersey Supreme Court

26 A. 78

55 N.J.L. 187

McCLAVE

v. MUTUAL RESERVE FUND LIFE ASS'N, (two cases.)

Supreme Court of New Jersey.

Feb. 24, 1893.

(Syllabus by the Court.)

Case certified to circuit court, Essex county, for advisory opinion.

Actions by Hannah McClave against the Mutual Reserve Fund Life Association on a life insurance policy, and by Hannah McClave, administratrix of James McClave, deceased, against same, on a contract preliminary to the issuance of the insurance policy. Both cases were certified to the supreme court for its opinion. Judgment advised for defendant.

Argued November term, 1892, before BEASLEY, C. J., and SCUDDER, REED, and DIXON, JJ.

Fred W. Stevens, for plaintiff.

J. Frank Fort, for defendant.

DIXON, J. These suits are brought upon an alleged contract of life insurance, and are resisted on the ground that no such contract was made.

1. The plaintiff seeks to maintain her suit upon a policy dated and sealed by the defendant January 13, 1890, and delivered to the plaintiff January 14, 1890, by one Diefendorf, who was an agent of the defendant. According to the terms of this policy, the defendant agreed to pay to the plaintiff $5,000 on the death of James McClave, her stepson, upon certain conditions stated in the policy. In fact James McClave had died January 11, 1890, two days before the policy was sealed. In our judgment, this policy never acquired any vitality against the defendant. On its face it shows that it was intended to be issued to James McClave, who had applied to become, and was, by the proper issuing of the policy, to be made, a member of the defendant corporation; and it expressly declares that the contract embodied in it is not to be binding until the policy is delivered to said member in person, during his life, and while in good health. In view of this provision, It is impossible to hold that the contract could be created by the delivery of the policy after the death of James McClave, unless the defendant has in some way abrogated that feature of the arrangement. Misselhorn v. Association, 30 Fed. Rep. 545. The plaintiff insists that such a change was effected by the fact that Diefendorf knew of McClave's death when he delivered the policy to the plaintiff; that, as Diefendorf must have intended his delivery to be a valid act, he must have intended to waive this inconsistent provision. On this point the plaintiff's contention has force, if Diefendorf had authority, real or apparent, to bind the defendant; otherwise it has not. The only evidence of Diefendorf's authority which the case presents is in writing, and consists of the agreement between him and the defendant dated April ], 1889. That instrument, alter defining in limited terms his power as "general state agent" of the defendant in New Jersey, proceeds as follows: "Fifth. The authority of said agent shall extend no further than is above stated. He shall not make, alter, nor discharge any contract." This lack of power is made distinctly apparent in the policy itself, which says: "No agent of the association had authority to make, alter, or discharge contracts, and no alterations of the terms of this contract shall be valid unless such alterations shall be in writing, and signed by the president or vice president and one other officer of the association." The conclusion seems inevitable that Diefendorf could not bind the defendant to any stipulations other than those set forth in the policy. Catoir v. Insurance & Trust Co., 33 N. J. Law, 487. Consequently this policy never became a valid contract.

2. The plaintiff seeks to maintain her suit upon a contract preliminary to the issuance of the policy. The pertinent facts are these: On December 14, 1889, James McClave made...