McElroy v. Metropolitan Life Insurance Company

• Decision Date: 25 June 1909
• Docket Number: 15,609
• Citation: 122 N.W. 27,84 Neb. 866
• Parties: MAGGIE MCELROY, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLEE
• Court: Nebraska Supreme Court

122 N.W. 27

84 Neb. 866

MAGGIE MCELROY, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLEE

No. 15,609

Supreme Court of Nebraska

June 25, 1909

APPEAL from the district court for Cass county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

A. N Sullivan, for appellant.

J. B Strode, contra.

CALKINS C. DUFFIE, EPPERSON and GOOD, CC., concur.

OPINION

CALKINS, C.

This was an action upon a policy of life insurance issued by the defendant upon the life of one Julia McElroy, in which policy the plaintiff was named as beneficiary. The defense was that the policy had been forfeited for non-payment of a semiannual premium which fell due December 28, 1906, and remained unpaid at the time of the death of the assured, which took place February 27, 1907. There was a trial to a jury, upon which the court directed a verdict for the defendant, and from a judgment entered thereon the plaintiff appeals.

1. It is conceded that, if the contract is to be considered as made in and construed by the laws of this state, the policy was by its express terms forfeited by the failure to pay the premium in question, unless the time of such payment was extended or such forfeiture waived. The defendant is a New York corporation, and there was in force in that state at the time of the issuance of the policy in question a statute regulating the business of life insurance, which, among other things, provided: "No life insurance company doing business in this state shall within one year after the default in payment of any premium, installment or interest declare forfeited or lapsed any policy hereafter issued * * * unless a written or printed notice stating the amount of such premium * * * due on such policy, the place where it shall be paid, and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured * * * at his or her last known post office address in this state. * * * The notice shall also state that, unless such premium * * * shall be paid * * * by or before the day it falls due, the policy and all payments thereon will become forfeited and void." There was an attempt to give the notice required by this statute, but it is claimed it was so imperfect as not to amount to a compliance with the above quoted provisions. The question is therefore presented whether the rights of the parties under the policy sued on are to be determined by the laws of this state or those of New York. It is a general principle that, if the parties to an insurance contract are in different jurisdictions, the place where the last act is done which is necessary to give validity to the contract is the place where the contract is entered into. Antes v. State Ins. Co., 61 Neb. 55, 84 N.W. 412; Bascom v. Zediker, 48 Neb. 380, 67 N.W. 148; Mutual Life Ins. Co. v. Cohen, 179 U.S. 262, 45 L.Ed. 181, 21 S.Ct. 106. In the body of the policy sued on it is provided that no obligation is assumed by the company until the first premium has been paid, nor unless upon the delivery of the policy the assured is living and in sound health; and in the application, which is a part of the policy, there is inserted the stipulation: "I further agree that the company shall incur no liability under this application until it has been received, approved, and the policy issued and delivered, and the premium has actually been paid to and accepted by the company during my lifetime and while I am in good health." In this case the policy was sent from the company's home office in New York to its agent in Nebraska, who delivered the same to the assured upon the payment by her of the first premium, at Plattsmouth, Nebraska, on the 28th day of July, 1905. Applying the principle above quoted to these facts, the contract of insurance in question must be considered a Nebraska, and not a New York, contract.

2. The effect of this statute upon policies of insurance issued by New York companies upon the lives of persons residing in other jurisdictions has been the subject of consideration in the courts of California, Washington, Texas, and the supreme court of the United States. Harrigan v. Home Life Ins Co., 128 Cal. 531, 61 P. 99; Griesemer v. Mutual Life Ins. Co., 10 Wash. 202, 38 P. 1031; Metropolitan Life Ins. Co. v. Bradley, 98 Tex. 230, 82 S.W. 1031; Mutual Life Ins. Co. v. Cohen, 179 U.S. 262, 45 L.Ed. 181, 21 S.Ct. 106; Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 48 L.Ed. 788, 24 S.Ct. 538. In the California case above referred to, which was decided in August, 1899, it was held that the provision of the New York statute prevented the forfeiture of a policy issued under such circumstances without the notice therein provided for. In each of the other jurisdictions an opposite conclusion was reached. In Mutual Life Ins. Co. v. Cohen, supra, there was a very full consideration of the subject in an opinion by Brewer, J., with the reasoning of which we are satisfied. It does not appear that this question has been before the court of appeals of New York; but the supreme court has lately had it under consideration...