Metro. Life Ins. Co. v. Lodzinski

• Decision Date: 22 September 1937
• Docket Number: Nos. 206, 209.,s. 206, 209.
• Citation: 194 A. 79,122 N.J.Eq. 404
• Parties: METROPOLITAN LIFE INS. CO. v. LODZINSKI et al.
• Court: New Jersey Supreme Court

194 A. 79

122 N.J.Eq. 404

METROPOLITAN LIFE INS. CO.

v. LODZINSKI et al.

Nos. 206, 209.

Court of Errors and Appeals of New Jersey.

September 22, 1937.

Appeal from Court of Chancery.

Suit by the Metropolitan Life Insurance Company against Magdalena Lodzinski, individually and as administratrix of the estate of Bronislaw Lodzinski, deceased and others, to cancel two life insurance policies. From a decree dismissing the bill as to one policy and canceling the other policy (121 N.J.Eq. 183, 188 A. 681), complainant and defendants, respectively, appeal.

Reversed as to dismissal of bill, and affirmed as to cancellation of policy.

McCarter & English, of Newark, and Conover English, of Newark, for Metropolitan Life Insurance Company. Nathan Reibel, of Elizabeth, for Magdalena Lodzinski.

BODINE, Justice.

The Metropolitan Life Insurance Company on February 21, 1935, filed a bill of complaint in the Court of Chancery seeking to cancel, because of the insured's fraud, the procurement of two certain policies on the life of Bertha T. Lodzinski, now deceased. One of the policies was issued February 21, 1933, and the learned Vice Chancellor, relying upon the case of Travelers' Ins. Company v. Leonard, 120 N.J.Eq. 6, 183 A. 686, concluded that the suit upon this policy was not begun within the limits of the incontestability clause. That clause is as follows: "This policy shall be incontestable after it has been in force for a period of two years from its date of issue, except for non-payment of premiums."

"In New Jersey from early times the rule seems to have been to exclude the day of the terminus a quo, whether that terminus was a day or an event." McCulloch v. Hopper, 47 N.J.Law 189, 190, 54 Am.Rep. 146. The calculation of the time for filing pleadings and the payment of bonds and notes has been consistently in accordance with this rule- See National Bank of Rahway v. Carpenter, 52 N.J.Law 165, 19 A. 181; Stroud v. Consumers' Water Co., 56 N.J.Law 422, 28 A. 578; Serrell v. Rothstein, 49 N.J.Eq. 385, 24 A. 369; McCormick v. Hickey, 56 N.J.Eq. 848, 42 A. 1019.

Since the policy was applied for, issued, and delivered in this state, where the applicant resided and where she remained until her death, the law of this state governed the construction thereof. John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106.

In the case of the Travelers' Ins. Co. v. Leonard, supra, the general rule for calculating the running of time was rejected in construing a somewhat similar incontestable clause in an insurance policy. It was thought that the word "from" in such contracts denotes the commencement of a period of time and was intended to be used as a word of exclusion. Therefore, following the rule of construing contracts of insurance most strongly against the insurer, the word "from" was construed as a word of exclusion. We think following that rule in this case was error, since in computing time the method generally adopted and followed for years in our courts has become a rule of law. Hence, the two-year period of incontestability did not expire until midnight of the 21st of February, 1935. The Supreme Court of the United States seems to be in accord with this view.

"The determination of the case depends upon the meaning of a clause in the policy as follows: 'Incontestability.—This policy shall be incontestable, except for non-payment of premiums, provided two years shall have elapsed from its date of issue.'" "The trial court held that the words 'its date of issue' were to be construed as referring to the date upon the face of the policy, viz. August 23, 1915, and that was also the view of the Court of Appeals. The first action taken by the insurance company to avail itself of the misrepresentation of the insured was on the 24th day of August, 1917, one day beyond the period of two years after the conventional date of the policy." Mutual Life Ins. Co. of N. Y. v. Hurni Packing Co., 263 U.S. 167, 174, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102.

It appears that the solicitor for the complainant caused the bill of complaint to be mailed to the office of the clerk in Chancery on the 19th day of February. It, however, was not stamped "filed" until February 21, 1935. The ancient practice was to mark the filing date of bills as of the day they were placed in the mail.

Chancellor Walker in Schenck v. Yard (N.J.Ch.) 86 A. 81, disapproved this practice. The propriety of the earlier rule, since a solicitor may issue process (Chancery Act, P.L.1902, p. 510, § 3 [1 CompSt.1910, p. 411, § 3]), is apparent. Process cannot issue until the bill is filed. However, in the determination of this case, it is not necessary to regard the bill as filed before the stamped date. Besides, there is no proof of an actual earlier filing. However, the bill was filed and the subpoena issued within the two-year period of contestability and although the subpoena was issued before the precise filing date of the bill this was a technical irregularity, which was waived by the appearance. Crowell v. Botsford, 16 N.J.Eq. 458; ...