New York Life Ins. Co. v. Pike

• Decision Date: 03 July 1911
• Citation: 51 Colo. 238,117 P. 899
• Parties: NEW YORK LIFE INS. CO. v. PIKE.
• Court: Colorado Supreme Court

117 P. 899

51 Colo. 238

NEW YORK LIFE INS. CO. v. PIKE.

Supreme Court of Colorado, En Banc.

July 3, 1911

Rehearing Denied Oct. 2, 1911.

Appeal from District Court, Teller County; Louis W. Cunningham Judge.

Action by Ida Pike against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Waterman and William A. Jackson (James H. McIntosh, of counsel), for appellant.

J. E Ferguson, for appellee.

MUSSER J.

On September 24, 1904, a Mrs. Brown, the local solicitor of the appellant insurance company at Victor, in Teller county solicited one John R. Cartee to take out a policy of life insurance. Mr. Cartee was averse to doing so, stating as a reason that he did not have the money with which to pay the premium. Mrs. Brown informed him that he could give his note for the first annual premium, as the company sometimes did business that way. Mr. Cartee said that if he could do that he would take out a policy, whereupon the usual application was made out and signed by Mr. Cartee for a $2,000 policy, and he also signed and delivered to Mrs. Brown a note for the first annual premium, payable to her order in three installments, to wit: $25 on November 10, and $25 on December 10, 1904, and $51.94 on January 10, 1905. Mrs. Brown, as the rules of the company required, sent the application and note to the state branch office of the company at Denver. A memorandum was made of the note on the policy register at the Denver office, and the application was forwarded to the home office in New York. The note was retained at Denver. On this application, the company issued a policy, in which the wife of the insured was named as beneficiary, who is now Ida Pike and the appellee here. The policy was sent from New York to the Denver office with no instructions. Thus far the matter had been carried on precisely as had been the custom in like cases theretofore, wherein Mrs. Brown, who had been soliciting insurance for the company for several months, had thus taken notes for premiums. In every such instance before this one when the Denver office received the policy, it was forwarded to Mrs. Brown, and she would put it into the hands of the insured. The company held her responsible for the first premium. Thus the business was carried on with the full knowledge and consent of the office at Denver, and, as appears from the testimony of the cashier of the Denver office, with the knowledge and consent of the company at New York, for the cashier testified that Mrs. Brown was behind in the payment of premiums on outstanding policies, and the company had instructed him to hold Mrs. Brown's new business until she paid up her overdue premiums. This was, the cashier said, 'as a sort of penalty, you might call it, in order to induce the agent to promptly pay up overdue business.' In this instance, instead of doing as was customary, the cashier, in order to hold up her new business and penalize Mrs. Brown for her delinquencies in not paying up for some outstanding policies, and as she expressed it in her testimony, 'to attack my commissions,' held this policy for some time at Denver, and after its receipt, and about October 14th, the cashier, retaining the policy, sent the note to Mrs. Brown for collection and remittance, though, by its terms, none of the installments were due. On October 22d, the cashier sent the policy with another to a bank at Victor, with the following reference thereto in a letter inclosed with it: 'I also inclose policy No. 2,215,747 Cartee, $2,000, total premium $102.26. The agent has the note which is dated September 24th due Nov. 10th, $25.00 Dec. 10th, $25.00 and Jan. 10th, $51.94. I have written the agent to return the note to me so that I can send it to you for collection. The discrepancy between the amount of the note and the total premium is an error on the part of the agent. Kindly try to collect this difference with the last installment of the note. I have noted the address of these two parties on the face of the policies. In the event the first installments in the two cases are not paid when due, I will thank you to return the policies and notes to this office. Kindly acknowledge receipt of these inclosures. Yours truly, W. A. Wood, Cashier.'

He also sent a copy of the letter to Mrs. Brown, and asked her to return the note to him, which she did not do. After receiving the information that the policy was sent to the bank, Mrs. Brown tried to find Mr. Cartee, to inform him that the policy was at the bank, and to have him make arrangements to pay the note. She learned that he was out of town. He returned on the 30th of October, in apparently good health, having been absent since October 5th, and died on the 31st. Mrs. Cartee offered to pay Mrs. Brown the first installment of the note when due on November 10th, and again on December 10th, when the next installment became due, but Mrs. Brown would not accept the money. After the death of Mr. Cartee, Mrs. Brown sent the note to the Denver office, and on November 2d it was sent by the cashier to the home office of the company in New York. The Victor bank returned the policy to the Denver office. Afterwards the note was again sent to Mrs. Brown, who was instructed to call upon an attorney, and upon his dictation indorsed thereon the following: 'The application for insurance in connection with which this note was taken not having been accepted, the consideration for this note has failed and the note is returned for cancellation. Mrs. I. Brown.' The note was left with the attorney, and on February 5th was returned, so indorsed, to Mrs. Cartee. This was after she had begun an action for the insurance, which action was dismissed, and this action brought in the district court of Teller county to recover on the policy. From a judgment in her favor, the company has appealed to this court.

In due time the company filed a motion for a change of venue from the district court of Teller county to the district court of the city and county of Denver, for the alleged reason that the defendant was a resident of the city and county of Denver, having its principal place of business there, and that the summons was served there, and, in support of the motion, filed an affidavit of the director of the agency at Denver, in which it was stated that the company was a corporation organized under the laws of the state of New York, for the purpose of carrying on the life insurance business, and as such was authorized by reason of a full compliance with the laws of the state of Colorado to carry on its business in this state, and for that purpose had its principal office and place of business in the city and county of Denver, and was a resident for the purpose of carrying on its business in said county, and that the summons was served upon the agent in the city of Denver. The question of the sufficiency of the affidavit, because it fails to negative certain facts, the existence of which would confer jurisdiction on the district court of Teller county, is left out of view. Section 29, Rev. Code, relating to the place of trial of actions, among other things, provides: 'Or if the defendant be a non-resident of this state, the same (the action) may be tried in any county in which the defendant may be found in this state or in the county designated in the complaint.' The authorities, both court and text-writers, announce as settled doctrine that a corporation organized under the laws of one state is a resident of the state under whose laws it was created; that it cannot be a resident of any other state; and, though such a corporation be permitted by another state, upon compliance with its laws, to carry on its business there, such permission and compliance does not make it a resident of such other state. Cook v. Hager, 3 Colo. 386; Shaw v. Quincy M. Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768; Boston I. Co. v. Boston, 158 Mass. 461, 33 N.E. 580; Bergner, etc., Co. v. Dreyfus, 172 Mass. 154, 51 N.E. 531, 70 Am.St.Rep. 251; Merrick v. Van Santvoord, 34 N.Y. 208; Boyer v. N. P. Ry. Co., 8 Idaho 74, 66 P. 826, 70 L.R.A. 691; I Thompson on Cor. (2d Ed.) § 490 et seq.; 1 Cook on Cor. (6th Ed.) § 1; 1 Clark & Marshall, Private Cor. § 114. It follows that this defendant was a resident of the state of New York, in which it was created, and a nonresident of the state of Colorado, within the meaning of the language quoted above from section 29 of the Code. This being so, the action was triable in the county designated in the complaint, and the motion for a change of venue was properly overruled. To hold otherwise would be to ingraft upon the statute an exception which is wholly foreign to its plain terms, and would be only an amendment thereof.

In the application signed by Mr. Cartee, there was a provision that the insurance thereby applied for should not take effect unless the policy was delivered to him during his lifetime and good health. The company now asserts that 'the agreement of the parties that the insurance should not take effect, unless the policy was delivered to Cartee during his lifetime and good health, was an agreement they had a right to make, and which the court ought to respect.' In this assertion the company is right. The principal contention of the company is that the policy was not delivered in the lifetime of the insured. The record discloses that the insured remained in good health until the time of his death. The question, therefore, is, Was or was not the policy delivered, in contemplation of law, to the insured during his lifetime? If it was, the judgment is right. If it was not, the judgment is wrong. The application did not provide that the policy must be actually received by or given into the hands of the insured in his lifetime, nor...