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

Decision Date06 October 1902
Docket Number813.
Citation118 F. 708
PartiesMUTUAL LIFE INS. CO. OF NEW YORK v. HILL et al.
CourtU.S. Court of Appeals — Ninth Circuit

In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.

This is an action to recover the amount of a life insurance policy brought by the defendants in error, as beneficiaries under said policy, against the plaintiff in error, the company issuing the policy. The case is before this court for the second time; having been removed to the supreme court of the United States (20 Sup.Ct. 914, 44 L.Ed. 1097) after the first hearing (38 C.C.A. 159, 97 F. 263-270, 49 L.R.A. 127) upon certiorari, and by that court certified back to the circuit court of the United States for the district of Washington with a mandate for further proceedings. Upon such proceedings being had (113 F. 44), an appeal was again taken to this court.

On April 29, 1886, the plaintiff in error issued its policy of insurance upon the life of George Dana Hill, in the sum of $20,000, in favor of his wife, Ellen Kellogg Hill, if she were living at the time of his death, or, in case of her death, to the children of their bodies who should be living at the time of the death of the insured. The first annual premium, amounting to $814, was paid by the insured, upon delivery of the policy to him at Seattle, Wash., to the agent of the insurance company at that place. The wife died in February, 1887, and the insured died on December 4, 1890. No further premiums were paid upon the policy after the first annual premium. It appears from the evidence that when the next annual premium became due the Seattle agent of the insurance company called upon Hill for payment of the same, of the company; that Hill did not pay the premium, and after repeated opportunities for payment having been given, and not availed of, the agent at Seattle returned the renewal receipt to the general office of the company at San Francisco; that the head of the latter office out of special interest in the case, returned the renewal receipt to the agent at Seattle, and it was again presented to Hill, and payment requested; that Hill failed and declined to make payment, and the renewal receipt was returned to San Francisco, and thence to the home office, in New York, where the policy was noted as lapsed and terminated. No offer or tender of payment of premium was later made by any one upon the policy. Upon the death of Hill the defendants in error children of the said Hill and his wife, and named as beneficiaries in the policy, furnished proper proof of the death of the said Hill, and demanded of the plaintiff in error the payment of the amount of the policy. In support of their claim the defendants in error contended that the insured was not in default in the payment of premiums on said policy until a notice had been mailed to him pursuant to the statute of New York requiring notices to be given by insurance companies transacting business in that state; that according to the agreement contained in the application for insurance, and contract of insurance, the terms of said contract were to be performed in New York, and all questions as to the validity of the provisions of said contract, and as to the rights and liabilities of the parties thereto, must be determined in accordance with the laws of New York; that under such laws the plaintiff in error had no power to cancel the policy or claim a forfeiture without giving the statutory notice; that by reason of the failure to give such notice the premiums did not become due, and there was no default. The plaintiff in error (defendant below) denied that the conditions of the contract of insurance had ever been performed by the insured, and contested the claim that the contract of insurance was to be performed in New York, or was subject to the laws of New York. It contended that it was transacting its business in the state of Washington at the time of the issuance of the policy, having its principal office in Seattle, in said state; that the insured was at that time a citizen of Washington, residing therein; that he made application for insurance of the Seattle agent; that this application was transmitted to the agent of the company at San Francisco, and by him forwarded to the home office, at New York; that pursuant to the application the company issued the policy; sent it to the agent in San Francisco, who afterwards transmitted it to the agent in Seattle; that the insured there paid the first premium, and received the policy. And in response to the contention that there was no default on the part of the insured, it was alleged that at a time more than one year from the time of the issuance of the policy it was mutually agreed between the insured and the insurance company that the said contract of insurance should be waived, abandoned, and rescinded. It was contended that this agreement was made up of the acts of the agent of the insurance company at Seattle in notifying the insured that the premium of $814 necessary to be paid upon said policy for its continuance was due and payable, and of the acts of the insured in informing said agent that he was unable to pay such premium, and intended to allow the policy to lapse and become forfeited for want of payment of said premium, or any future premium accruing on said policy; and it was alleged that the insurance company, in good faith relying upon said conduct and representations of the insured, was induced to, and did, fail and abstain from giving or mailing any notice to the insured, or to any person interested in said policy, concerning the payment of any premium thereon. Demurrers to the answer were sustained, and, upon the election of the plaintiff in error to stand upon its pleadings, a judgment was given upon the pleadings in favor of the beneficiaries for $24,086.61, with interest and costs. The circuit court of appeals affirmed this judgment; holding that the contract of insurance must be considered as made in the state of New York, and subject to the laws of that state. 38 C.C.A. 159, 97 F. 263, 267. Upon appeal to the supreme court of the United States that court held that the answer of the defendant disclosed a distinct agreement on the part of the insured and the company to waive and abandon the policy, and all rights and obligations on the part of the parties thereto, and that upon the allegation of the insurance company that 'each and all the plaintiff, including the beneficiaries, neglected and refused to pay' the premium due on said policy, the beneficiaries were also parties to the abandonment of...

To continue reading

Request your trial
3 cases
  • Dunkley Co. v. Central California Canneries
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 19 Octubre 1925
    ...patent, is a part of the law of the case. Thompson v. Maxwell Co., 168 U. S. 451, 456, 18 S. Ct. 121, 42 L. Ed. 539; Mutual Life Co. v. Hill, 118 F. 708, 55 C. C. A. 536; Olsen v. North Pacific Co., 119 F. 77, 79, 55 C. C. A. 665; Empire State Co. v. Hanley, 136 F. 99, 100, 69 C. C. A. 87; ......
  • Western Union Telegraph Co. v. Czizek
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 Febrero 1923
    ... ... Boise, Idaho (Francis R. Stark, of New York City, of ... counsel), for plaintiff in error ... See, ... also, from this circuit, Mutual Life Ins. Co. v ... Hill, 118 F. 708, 55 C.C.A. 536; ... ...
  • Neall v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 27 Octubre 1902

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT