Mutual Reserve Fund Life Ass'n v. Du Bois

• Decision Date: 07 February 1898
• Docket Number: 392.
• Citation: 85 F. 586
• Parties: MUTUAL RESERVE FUND LIFE ASS'N v. DU BOIS.
• Court: U.S. Court of Appeals — Ninth Circuit

85 F. 586

MUTUAL RESERVE FUND LIFE ASS'N v. DU BOIS.

No. 392.

United States Court of Appeals, Ninth Circuit.

February 7, 1898

I. B L. Brandt, for plaintiff in error.

Alfred A. Fraser, for defendant in error.

Before GILBERT and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is an action by J. K. Du Bois, as administrator of the estate of Edward J. Curtis, deceased, against the Mutual Reserve Fund Life Association, a corporation organized and existing under the laws of the state of New York, to recover the amount due upon a policy of insurance issued to Edward J. Curtis during his lifetime. A jury was waived, and the case was tried upon an agreed statement of facts. The court below gave judgment in favor of the plaintiff (defendant in error here) for the full amount of the policy, to wit, $6,000, with interest thereon at 10 per cent. per annum from February 10, 1896 amounting in all to the sum of $6,530 and costs. The defendant thereupon sued out this writ of error.

The defendant in error has interposed a motion to dismiss the writ of error, because there is no proper or legal bill of exceptions in the record. In the view we take of the failure of the record to present any question for our consideration it will be unnecessary to consider this point.

The case was tried in the court below upon an agreed statement of facts, and this statement has been incorporated into the record as part of the bill of exceptions. The statement sets forth, in substance, that the defendant is a corporation organized under and by virtue of the laws of the state of New York, and engaged in the business of writing life insurance and making contracts insuring the lives of its patrons in the state of New York and in the state of Idaho; that on the 7th day of July, 1889, it insured the life of Edward J. Curtis in the sum of $6,000, and issued to him the policy of insurance set forth in plaintiff's complaint; that on the 29th day of December, 1895, at Boise City, in Ada county, Idaho Edward J. Curtis died, without leaving a will; that on January 27, 1896, J. K. Du Bois was appointed by the probate court of Ada county, Idaho, administrator of the estate of said Edward J. Curtis, deceased; that thereafter Du Bois qualified as such administrator, and is still such administrator; that the death of Curtis was not caused by his own hand, or by the effect of engaging in any duel, or any violation of the law, or at the hands of justice; that he did not enter the military service, or any naval service company, or regiment, when in actual service or otherwise, during his lifetime, or since the issuing to him of said policy of insurance; that on or about February 4, 1896, the plaintiff informed the defendant of the death of said Curtis, and defendant denied all liability whatsoever on or under said contract of insurance; that the defendant has not paid the sum of $6,000, as called for in said policy of insurance, nor any part thereof; that the said Edward J. Curtis and the plaintiff, and each of them, duly performed all the conditions of said policy of insurance on their part to be performed, except that Curtis failed to pay an assessment or mortuary call or premium, known as 'Mortuary Call Number 68,' in the sum of $33.96, which became due according to the terms of said policy of insurance on the 1st day of July, 1893, and that the same has not been paid by said Curtis, or any other person or persons for him, and that said nonpayment was not condoned or acquiesced in by the defendant; that other assessments, mortuary calls, and premiums have become due and payable since the said mortuary call No. 68, but...