New York Life Ins. Co. v. Clemmitt

• Decision Date: 05 April 1883
• Citation: 77 Va. 366
• Parties: NEW YORK LIFE INSURANCE CO. v. C. W. CLEMMITT AND WIFE.
• Court: Virginia Supreme Court

77 Va. 366

NEW YORK LIFE INSURANCE CO. v. C. W. CLEMMITT AND WIFE.

Supreme Court of Appeals of Virginia.

April 5, 1883

Error to judgment of circuit court of Richmond city, rendered on 3d January, 1883, in the action of C. W. Clemmitt and Myra P his wife, who was daughter of George W. Minnis against The New York Life Insurance Company. This is the sequel to the case of Clemmitt and Wife v. The New York Life Insurance Company, which was decided by this court 30th March, 1882, and is reported in 76 Va. Reports 355. In November, 1857, G. W. Minnis insured his life with said company for $5,000, for the sole benefit of his wife Mary Jane, with the further conditions stated in the policy, " that in case of the death of his wife before his decease, the amount of the insurance should be payable after her death to her children." Myra P. was the only child. Insured paid the premiums up to the war. Shortly after the war he saw the president of the company, who said the policy was annulled by the war, and repudiated it. Mary Jane died in 1868.

This suit was brought in 1874, to recover damages for the breach of the policy. The insured died in April, 1877, pending the suit which was decided in the circuit court against the plaintiffs in 1879, and they obtained a writ of error to this court, which reversed the judgment with costs. This court then decided that as soon as the wife died the child's rights vested; that after the company repudiated the policy, the wife might have sued in her own name for damages for the breach, or await the event whereon the sum assured became payable to her if she survived the insured, to her children if he survived her; that the war only suspended, did not abrogate the policy; that where the breach occurs and suit is brought during insured's life, and he dies before judgment, the value of the policy is the present value, as of the date of the company's repudiation of the sum assured, and payable at the death of the insured; to be diminished, however, at the same date, by the present value of the premiums subsequently accrued, and also by the amount of the premiums previously accrued (which are unpaid) and interest thereon.

The action having been remanded for trial on these principles, the second trial was had, and resulted as aforesaid in a judgment for the plaintiffs, to which, in turn, the defendant company obtained a writ of error and supersedeas fro one of the judges of this court.

The instructions given and those refused by the circuit court, and the other proceedings had, are set forth in the opinion of the court.

Johnston, Williams & Boulware, and W. W. & B. T. Crump, for the appellants.

Paul & Davies, for the appellee.

OPINION

LACY, J.

The questions involved in this case when first before this court were duly heard and considered, and the circuit court, which had rendered judgment for the defendant company, was reversed, and the case remanded to the said circuit court for a new trial to be had therein.

In the first trial in this court, the court said, " on the trial of the issues below, the court instructed the jury that ‘ if they believed from the evidence that the defendant repudiated its contract in June or July, 1865, a cause of action then accrued to Mary Jane Minnis, the wife of George W. Minnis, if she were then alive, and if they believe that she died after the cause of action accrued, the same survived to her personal representative and not to the plaintiff, Myra P. Minnis, and they should find for the defendant.’ This instruction resulted necessarily in a verdict for the defendant, as the facts left to the determination of the jury on which the direction was based, were clearly established. We are of opinion that this instruction was clearly erroneous."

The right of the plaintiff, Myra P., to maintain the suit was thus established and finally settled.

Proceeding to pass upon other errors assigned, this court said, " instructions were asked for on both sides, which were refused. Some of them relate to the effect of the war on the contract of insurance, the insurer and insured not residing during hostilities in the territory, and under the dominion of the same belligerent power. We see no objection to the first instruction prayed for by the plaintiffs. It announces in substance the well settled law of the state, that the war did not abrogate, but merely suspended the contract, and the further proposition, equally sound, that the repudiation by the company of the binding force of the contract, excused a tender of premiums, and what may be inferred from the views already expressed, is, in our opinion, correct, that after the company had repeated its denial of further obligation, the appellant had a right of election between remedies, either to sue at once for damages for breach of the contract or to await the event on which the sum assured became payable under the policy, and when it became payable, to sue for its recovery. The second instruction asked for by the defendant was properly refused, because it makes a tender of the premiums after the war essential to a recovery, though a tender may have been excused by the conduct of the company. The other instruction had reference to the measure of damages.

If the assured had continued alive until and after the trial, with no deterioration of health, except such as naturally resulted from mere efflux of time, the case of The Universal Life Insurance Company v. Binford and others, lately decided by this court, would have furnished the rule; or, if the plaintiff had brought her suit after the death of the insured, the amount of recovery would have been easily determined.

The difficulty is created by the death occurring after the commencement of the action and before trial. In estimating the damages in this suit we see no good reason why the jury may not consider the event, the death of the insured, as an element in fixing the quantum of the damages.

When the life ceases there is no occasion for speculation. The event on which the sum assured becomes payable has actually occurred, and is susceptible of proof, and there is no occasion to consider the duration of life according to the tables of longevity. There has been no case adjudicated precisely in point. " * * * But we say in the present case, the value of the policy is the present value, as at the date of the repudiation of the contract by the company of the sum assured and payable at the death of the person whose life was insured, to be abated, however, by the present value, at the same date, of the premiums subsequently accrued, and also by the amount of the premiums previously accrued (which are unpaid) and interest thereon. The present value of the sum thus ascertained and abated, with interest from the date of the repudiation of the contract, would seem to be the just measure of recovery in the case."

The case was again tried, as stated above, in the circuit court of Richmond city, on the 3d day of January, 1883, and there was a verdict and judgment for the plaintiffs; to which judgment the defendant company applied to this court for a writ of error and supersedeas, which was awarded on the 26th day of January, 1883.

The first exception in this case is the refusal of the court to give seven instructions asked for by the defendant, and to the action of the court in giving one instruction asked for by the plaintiff, and in giving one instruction not asked for on either side, but given by the court in lieu of certain instructions asked for and refused by the court. The first instruction asked for by...