McConnell v. Provident Savings Life Assur. Soc. of New York

• Decision Date: 02 July 1895
• Docket Number: 258.
• Parties: McCONNELL v. PROVIDENT SAVINGS LIFE ASSUR. SOC. OF NEW YORK.
• Court: U.S. Court of Appeals — Sixth Circuit

69 F. 113

McCONNELL v. PROVIDENT SAVINGS LIFE ASSUR. SOC. OF NEW YORK.

No. 258.

United States Court of Appeals, Sixth Circuit.

July 2, 1895

This is an appeal from a decree of the circuit court of the United States for the Eastern district of Tennessee. The cause was begun by an original bill filed in the chancery court at Knoxville, in Tennessee, by Mary F. McConnell, a citizen of Tennessee, against the Provident Savings Life Assurance Society, a corporation and citizen of the state of New York. The bill alleged that the complainant was the widow of one R A. McConnell, deceased, who died July 28, 1893; that on the 27th of April, 1893, the said R. A. McConnell procured the defendant to issue to the complainant, his wife, a policy of $5,000 upon his life, which policy was filed and made a part of the bill. The bill further averred that proper proofs of death were forwarded to the defendant; that by the terms of the policy the defendant, within 60 days after the presentation of the satisfactory proofs, became liable to pay the face of the policy, but failed and refused to do so; that there was actually paid, at the time of the issuance and delivery of the policy, the sum of $20.65 on account of the premium thereon for the current year ending April 27, 1894 that the defendant was justly indebted to complainant in the full amount of the policy, less that portion of the premium due thereon for the current year ending April 27, 1894, which was the premium due for the whole year, less the $20.65 paid. The prayer of the bill was for process by subpoena according to the practice of the court, for judgment and decree in favor of complainants for the amount of the policy, with interest thereon, less the portion of the premium for the current year; and, if mistaken in her special prayer, she prayed for all such other, further, different, and general relief as the facts might warrant and as the ends of justice might require. Upon this bill subpoena was issued summoning the defendant to appear before the chancery court at Knoxville to answer the original bill which the complainant had filed against it. The subpoena was served upon the agent of the defendant. Thereupon the cause was removed by defendant to the court below, and on the 9th day of July thereafter the following motion was made in that court 'Came the Provident Savings Life Assurance Society of New York, by its solicitor, George H. Pepper, and moved the court to allow the transcript in the above-entitled cause from the chancery court of Knox county removed to this court, on bond and petition to be filed in this court. And, it appearing to the court that the law in regard to removals has in all things been complied with, the court is pleased to sustain said motion, and order that the same be filed and docketed. Thereupon the defendant filed its answer. The answer begins as follows: 'To the Honorable Judges holding United States Circuit Court at Knoxville, Tennessee: The answer of the Provident Savings Life Assurance Society of New York to the bill filed against it in the chancery court of Knox county, Tennessee, and removed to this honorable court. Respondent, answering complainant's bill, admits that complainant is the widow of Robert A McConnell, deceased. ' The answer admits certain facts in the bill, then sets out the issuance of the policy, its character, the proper construction thereof, the failure of McConnell to pay the amount due quarterly on the premium, the forfeiture of the policy accruing therefrom, and denies certain constructions put upon the policy by the complainant. The answer concludes: 'All allegations in complainant's bill not admitted or denied are hereby expressly denied. Respondent denies that it owes complainant anything on account of said lapsed policy, and prays to be hence dismissed, with its reasonable costs. ' The answer is signed: 'The Provident Savings Life Assurance Society of New York, by Sheppard Homans, President; George H. Pepper, Solicitor; Edwin B. Smith, of counsel. ' On July 21, 1894, the parties to the action signed an agreement as to facts, which was filed upon the same day. The caption of the agreement is as follows: 'In the United States Circuit Court for the Northern Division of the Eastern District of the State of Tennessee. For the purpose of saving time and expense, and expediting the trial of this cause, the following facts are agreed upon between the parties, and as such may be taken and considered by the court in the determination of this lawsuit, so far as the facts themselves are competent, as fully as though established by competent testimony in regular form taken and submitted. ' At the end of the agreement is this: 'Formal replication to defendant's answer is waived. ' On the same day was filed a stipulation as follows: 'It is hereby stipulated by and between the parties hereto, and their attorneys, that this cause be tried by the court without a jury; a jury trial being hereby waived under sections 649 and 700 of the Revised Statutes of the United States. ' On July 28, 1894, a bill of exceptions was signed by the judge and filed. Special findings of fact were made by the court. Motions were made to set them aside, the motion was overruled, and the following entry was made in the court below: 'Be it remembered that this cause came on for final hearing before the Honorable D. M. Key, judge of the United States district court, holding the United States circuit court at Knoxville, Tennessee, on this the 28th day of ...