Pennsylvania Cas. Co. v. Bacon

• Decision Date: 25 November 1904
• Docket Number: 53.
• Citation: 133 F. 907
• Parties: PENNSYLVANIA CASUALTY CO. v. BACON.
• Court: U.S. Court of Appeals — Second Circuit

133 F. 907

PENNSYLVANIA CASUALTY CO. v. BACON.

No. 53.

United States Court of Appeals, Second Circuit.

November 25, 1904

James L. Martin, for plaintiff in error.

James F. Hooker, for defendant in error.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

WALLACE Circuit Judge.

The defendant in the court below brings this writ of error to review a judgment for the plaintiff entered upon the verdict of a jury. The principal assignment of error is based upon the ruling of the trial judge in refusing to direct the jury to find a verdict for the defendant upon the ground that the insurance policy upon which the suit was brought had never become operative because no premium had been paid thereon.

The policy, which was one of accident insurance, was based upon the application of one Randall, and provided, among other things, for the payment by the defendant, in the event of Randall's death resulting from sunstroke, of $5,000 to his wife or legal representatives. It contained also the following conditions:

'This policy shall not take effect unless the premium is actually paid previous to any accident upon which claim is made. * * * This contract is made and accepted by the assured subject to the foregoing stipulations and conditions, and no waiver, alteration or modification of this contract shall be binding upon the company unless the same is endorsed hereon or attached hereto and signed by the president or secretary of the company.'

It appeared upon the trial that the policy was issued by the defendant and delivered to Randall for his examination and approval after negotiations between him and one Shelley, who was a subagent of the state agent of the defendant; that shortly thereafter, and on May 5, 1901, Shelley accepted from Randall, in lieu of the first premium payable by the policy Randall's promissory note payable to Shelley one month from date; that no part of the note was paid in Randall's lifetime; that on July 11, 1901, Randall died, his death resulting from sunstroke (according to some of the evidence) and immediately thereafter the plaintiff, who was afterwards appointed administrator of Randall's estate, sent his check to Shelley for the amount of the note; and that Shelley, in ignorance of the death of Randall, collected the check, but immediately upon learning the facts offered to return the amount thereof to the plaintiff, and the latter refused to receive it. No evidence was offered upon the trial tending to show that the defendant had ever expressly or impliedly authorized Shelley to accept anything but money in the payment of premiums, or ratified his act in doing so in the present instance. The trial judge...