Mutual Life Ins. Co. of New York v. Kelly

• Decision Date: 17 February 1902
• Docket Number: 1,635.
• Citation: 114 F. 268
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. KELLY.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F. 268

MUTUAL LIFE INS. CO. OF NEW YORK v. KELLY.

No.1,635.

United States Court of Appeals, Eighth Circuit.

February 17, 1902

This was an action on two policies of insurance for $2,500 and $5,000, respectively, executed by the Mutual Life Insurance Company of New York the plaintiff in error, insuring the life of one Edward S Kelly. Two separate applications in writing were made by Kelly for these policies, one dated April 19, 1893, wherein he made his wife, Josephine R. Kelly, defendant in error, the proposed beneficiary, and the other dated December 18, 1893 wherein he designated one Robert P. Mulock, his wife's father, as the proposed beneficiary. The first application was accepted by the insurance company, and the policy for $2,500, bearing date May 24, 1893, was in due time executed and, with a copy of the application attached thereto, delivered to Kelly. The second application resulted in the execution of the policy for $5,000, bearing date December 28, 1893, which, with a copy of the application therefor duly attached, was delivered to Kelly; but instead of making Robert P. Mulock the beneficiary, as designated in the application, the same was made payable to the insured, Edward S. Kelly, his executors, administrators, or assigns. Each policy recites on its fact as follows: That it was issued 'in consideration of the application for this policy, which is hereby made a part of this contract. ' Each application contained the following statement, signed by Kelly: 'I hereby warrant and agree not to reside or travel in any part of the torrid zone, and not to engage in any specially hazardous occupation or employment, during the next two years following the date of issue of the policy for which application is hereby made, and also not to engage in any military or naval service in time of war, during the continuance of the policy, without first obtaining permission from this company. I also warrant and agree that I will not die by my own act, whether sane or insane, during the said period of two years. ' The application, after enumerating the excluded hazardous occupations or employments, continues as follows: 'I also agree that all the foregoing statements and answers * * * are by me warranted to be true, and are offered to the company as a consideration of the contract, which I hereby agree to accept as issued by the company in conformity with this application. ' After receiving the second policy of $5,000, wherein Kelly or his estate was made beneficiary, he, on January 4, 1894, assigned the same to Robert P. Mulock, as beneficiary, as contemplated in the application. On February 21, 1895, after having paid the second annual payment on each policy, but before two years had elapsed from the date of either policy, Kelly while insane aimed a pistol at his own head and shot himself, and thereby inflicted upon himself a wound from which he thereafter, and on the same day, died. After his death, and on September 5, 1895, Mulock duly assigned all his right, title, and interest in the second policy to Josephine R. Kelly, the widow and defendant in error herein.

Both policies were, by explicit stipulations contained therein, made subject to the provisions stated on the back thereof. One of those provisions is as follows: 'It is hereby further promised and agreed that after two years from the date hereof the only conditions that will be binding upon the holder of this policy are that he shall pay the premiums at the time and place and in the manner stipulated in said policy, and that the requirements of the company as to age and military and naval service in time of war shall be observed, and that in all other respects, if this policy matures after the expiration of the said two years, the payment of the sum insured by this policy shall not be disputed.'

Proofs of death were waived. Suit was instituted on the policies, and an agreed statement of facts, substantially as hereinbefore stated, was signed by the respective counsel of the parties and filed in the court below. Upon such agreed statement of facts, a jury having been duly waived, the cause was submitted to the trial court. Judgment was rendered in favor of defendant in error, hereinafter called 'plaintiff,' for the full face value of the two policies, with accumulated interest. The plaintiff in error, hereinafter called 'defendant,' now brings the case here by writ of error for review.

W. E. Odell and James L. Blair (Julien T. L. Blair (Julien T. Davies and Edward Lyman Short, on the brief), for plaintiff in error.

Milton Remley (J. J. Ney and W. O. McElroy, on the brief), for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District judge.

ADAMS District Judge, after stating the case as above, .

It is first contended by learned counsel for the plaintiff that there is nothing before us for review; that the so-called 'Agreed Statement of Facts' is only a concession of certain independent and separate facts, which were offered in evidence as a basis for a general finding; and that, inasmuch as there was no objection made to the introduction of such facts in evidence or exceptions saved to the ruling of the court thereon, the doctrine announced in Barnard v. Randle (C.C.A.) 110 F. 906, and cases therein cited, is applicable. Undoubtedly it is true, as settled by a long line of authority, that where evidence is heard in an action at law, and a general finding made thereon, an exception to such finding alone presents nothing for review. But such is not the case now before us. The judgment entry and bill of exceptions both clearly disclose that the cause was submitted to the court upon an agreed statement of facts, signed by counsel for the respective parties, filed and made part of the record, and that no other evidence whatever was heard at the trial. It is of no significance that counsel at the trial formally offered in evidence the facts so agreed upon or any of them. Such practice, if adopted, did not change the essential character of the submission. It was a submission of facts agreed upon in writing for the judgment of the court as a conclusion of law thereon, and as such is the equivalent of a special verdict, presenting questions of law alone for the consideration of the court. Its conclusion thereon is subject to review by this court. Supervisors v. Kennicott, 103 U.S. 554, 26 L.Ed. 486; Bond v. Dustin, 112 U.S. 604, 5 Sup.Ct. 296, 28 L.Ed. 835; Lehnen v. Dickson, 148 U.S. 71, 13 Sup.Ct. 481, 37 L.Ed. 373; Cudahy Packing Co. v. Sioux Nat. Bank, 16 C.C.A. 409, 69 F. 782. Guided by the foregoing authorities, our sole duty is to determine whether the trial court reached the correct conclusion of law from the facts so agreed upon.

It is next contended that we are foreclosed from any consideration of the force and effect of the suicide clause in question, because the policies in suit, being Iowa contracts, do not contain in their bodies the agreement exonerating the insurer from liability in case of suicide. Attention is called to the act of the general assembly of Iowa approved April 17, 1890, entitled 'An act to prevent discrimination in life insurance. ' Laws 1890, p. 49. Section 1 of this act is as follows:

'No life insurance company doing business in Iowa shall make or permit any distinction or discrimination in favor of individuals between insurance of the same class and equal expectations of life in the amount or payment of premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contract it makes; nor shall any such company or any agent thereof make any contract of insurance or agreement as to such contract, other than is plainly expressed in the policy issued thereon; nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefit to accrue thereon, or any valuable consideration or inducement whatever not specified in the policy contract of insurance.'

It is contended by plaintiff's counsel that the clause relied upon by defendant to defeat recovery in this action, namely, 'I also warrant and do agree that I will not die by my own act, whether sane or insane, during the said period of two years,' being found only in the application made by Kelly for insurance, is not so 'plainly expressed in the policy' as to be a valid and enforceable agreement, within the purview of that act.

The contention, as we understand it, is that the 'policy,' within the purview of the act, is that particular paper signed by the insurer which contains its promise, and nothing else, and particularly that it does not include any of the agreements found in the proposition for insurance usually denominated the 'application,' even though the same be attached to the other paper, and by express stipulation therein made part of the contract. This contention, in our opinion, is narrow and technical, and ignores the rule of construction of contracts, requiring a consideration of all its provisions, wherever found, to determine the intention of the parties. The stipulations of a paper, referred to in a contract as the consideration upon which it is made and by express terms made part of it, are as binding upon the contracting parties as if the same were bodily incorporated therein.

The act of Iowa, supra, in our opinion, creates no exception to the foregoing general rule governing the interpretation of contracts. That act was obviously intended for three purposes : (1) To prevent discriminations in favor of particular insurants; (2) to secure that certainty with respect to the...