McNicol v. New York Life Ins. Co.
| Decision Date | 16 November 1906 |
| Docket Number | 2,369. |
| Citation | 149 F. 141 |
| Parties | McNICOL v. NEW YORK LIFE INS. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
On December 14, 1903, one McNicol, of Wichita, Kan., made an application to defendant company for a policy of $5,000 on his life, payable at his death to his son, William D McNicol, the plaintiff in this action. The applicant was born May 8, 1863, and his age on December 14, 1903, for insurance purposes as determined by his nearest birthday, was 41 years but, to get a reduction in premium corresponding to a year's less age, he requested informally in his application that his policy be dated back to November 7th which, if done, would secure for him the benefit of a premium based on the age of 40, instead of 41, years. At the time of making the application he paid the local agent of defendant company at Wichita, in a manner satisfactory to him, the premium for the first year, taking a receipt therefor, with a proviso that, if the policy should not be issued by the company on his application, the amount of the payment should be returned to him by the agent. Pursuant to the usual practice, and as contemplated by him, his application was forwarded to the home office of the company in New York for its approval and acceptance. In due time the company determined that it would not accept the application or issue a policy on it, unless the applicant would make a certain amendment to it, formally requesting that the insurance should take effect as of November 7, 1903, instead of December 14, 1903, the date of the application, and agreeing that the accumulation period and the loan and nonforfeiting provisions of the policy should all relate back to November 7th. The company, finding the medical examination accompanying the application satisfactory, caused a policy of $5,000 to be prepared and executed in general conformity to the application, but attached to it a formal amendment of the application, conforming to its requirement as just stated and returned them both to its local agent with instructions not to deliver the policy to the applicant until the amendment should be signed by the applicant and until he should pay the sum of $1.10 additional premium; the same being interest at the rate of 5 per cent. per annum on the amount of the first annual premium from November 7th, when the policy was to become effective and when the premium was due, to December 14th, when the application was made for the policy and when the premium was actually paid. The local agent received the executed policy and the proposed amendment on January 7, 1904, and on that date wrote McNicol, who lived some distance away, that the policy had arrived 'straight as a string' and that he hoped to place it in his hands the following Sunday. When McNicol received this letter on Friday, January 8th, he was sick, and, without any change in the facts of the case from those already stated, he died on the morning of Saturday, January 9th, without having received the policy or paid the additional premium or signed the amendment to his application. The beneficiary instituted suit on the policy in the Circuit Court. The court made a special finding of facts, in substance as just stated, and rendered a judgment in favor of the defendant. We are asked to reverse that judgment on this writ of error.
Earl Blake (W. A. Ayres and B. F. Milton, on the brief), for plaintiff in error.
S. B. Amidon and James H. McIntosh, for defendant in error.
Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.
ADAMS Circuit Judge, after stating the facts as above, .
The only question in this case is whether the facts as found support the judgment as rendered. The application made for the insurance was a proposition requiring acceptance as made before it became a contract. Travis v. Insurance Co., 43 C.C.A. 653, 104 F. 486. This McNicol, not only presumptively, but actually, knew. The receipt...
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