Rosenblum v. Sun Life Assur. Co. of Canada, 2006

• Decision Date: 23 February 1937
• Docket Number: 2006
• Citation: 51 Wyo. 195,65 P.2d 399
• Parties: ROSENBLUM v. SUN LIFE ASSUR. CO. OF CANADA
• Court: Wyoming Supreme Court

65 P.2d 399

51 Wyo. 195

ROSENBLUM v. SUN LIFE ASSUR. CO. OF CANADA

No. 2006

Supreme Court of Wyoming

February 23, 1937

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by Jacob Rosenblum against the Sun Life Assurance Company of Canada. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

For the appellant, there was a brief and an oral argument by C. R Ellery of Cheyenne.

The policy did not take effect until the first premium was paid during the life and good health of the insured. Clark v Ins. Co. of America, (Wis.) 263 N.W. 364; Person v. Aetna Life Ins. Co., 32 F.2d 459 (8th Circuit; Packard v. Metropolitan Life Ins. Co., (N. H.) 54 A. 287; Rathbun v. New York Life Ins. Co., (Idaho) 165 P. 997; 14 R. C. L. 900. The burden of proving first premium was paid and policy delivered while insured was in good health was upon plaintiff. Cooley's Briefs on Insurance, Vol. 1, page 693; Insurance Company v. Hightower, (Ga.) 98 S.E. 469; Greenbaum v. Life Ins. Co., 62 F.2d 56; Braman v. Ins. Co., 73 F.2d 391; Ansin v. Life Ins. Co., (Mass.) 134. The petition fails to allege that insured was in good health at the time the premium was paid and that insured performed all of the conditions of the contract on his part to be performed. There was a failure to state a cause of action. Hurt v. New York Life Ins. Co., 53 F.2d 453 (10th Cir.); Everson v. Assur. Corp., 86 N.E. 658; Levandoski v. Life Ins. Soc., (N. J.) 137 A. 414; Redman v. Ins. Co., (Wis.) 4 N.W. 591; Central Company v. Alexander, (Texas) 56 S.W. 864; McNulty v. Land Company, (Cal.) 187 P. 97; 21 R. C. L. 462; Lumber Company v. Independent Producer's Consolidated, (Wyo. 249 P. 790; Sec. 89-1037, R. S. 1931; Anchor Life Ins. Co. v. Meyer, (Ind.) 111 E. 436; Western & Southern Life Ins. Co. v. Spencen, (Ind.) 179 N.E. 74. The following cases show pleadings wherein the circumstances or required allegations were held good on demurrer. Lodge v. Hopkins, (Okla.) 52 P.2d 4-7; Camp of Woodmen of the World v. Hodges, (Fla.) 73 So. 347; Camp v. Adams, (Ala.) 86 So. 737. The good health of the insured at the time the first premium was paid was a condition precedent to the policy taking effect. No contract of insurance could exist until insured had complied with the condition precedent that he be in good health at the time of the payment of the first premium. Plaintiff's petition fails to state a cause of action.

For the respondent there was a brief and oral argument by W. G. Phelan of Cheyenne.

Defendant failed to contest the policy within the contestable period and is estopped from contesting the policy on the ground of failure to perform conditions precedent. 37 C. J. 542, 543, 607, 616-7. Section 57-232, R. S. 1931, prescribes what must be contained in a life insurance policy. Defenses cannot be urged after the expiration of the contestable period. Mohr v. Prudential Insurance Company, 78 A. 554; Commercial Life Insurance Company v. McGinnis, (Ind.) 97 N.E. 1018; Mutual Reserve Fund v. Auston, 142 F. 398; Grier v. Mutual Insurance Co., (N. C.) 44 S.E. 28; Harris v. Security Life Ins. Co. of America, (Mo.) 154 S.W. 68; Duvall v. National Insurance Company of Montana, (Idaho) 154 P. 632; 25 Cyc. 873; Dibble v. Reliance Life Insurance Company, (Cal.) 149 P. 711; American National Co. v. Welsh, 3 S.W.2d 946; Shannon v. Metropolitan Life Ins. Co., 263 N.Y.S. 170; American National Ins. Co. v. Tabor, (Texas) 230 S.W. 396. The contestable clause excludes the defense of fraud. MacKendree v. Life Ins. Co., (S. C.) 99 S.E. 806. Failure to pay premium is not affected by the contestable clause. Killian v. Insurance Co., (N. Y.) 166 N.E. 798; Supreme Lodge v. Overton, (Ala.) 82 So. 443; Louisville Underwriters v. Durland, (Ind.) 24 N.E. 221; Insurance Company v. Fawcett, (Texas) 162 S.W. 10; Healy v. Metropolitan Life Insurance Company, 37 App. D. C. 240. When the policy has been delivered and the first premium paid, the burden of proof is upon the insurance company to show that the policy was delivered while the insured was not in good health. American National Insurance Co. v. Burnside, (Texas Civ. App.) 175 S.W. 169; Giultinan v. Life Insurance Company, (Vt.) 38 A. 315; Corbett v. Metropolitan Life Ins. Co., 55 N.Y.S. 775; McClelland v. Mutual Life Ins. Co. of New York, 135 N.Y.S. 735; Bath v. Insurance Company, (Mo.) 132 S.W. 783; Pelican v. Mutual Life Insurance Co., (Mont.) 119 P. 778; Insurance Company v. Hurni Packing Company, (U.S.) 68 L.Ed. 102; Priest v. Life Insurance Company, (Kan.) 237 P. 938. An examination of authorities cited in the brief of appellant will show that they are distinguishable on the facts from the case at bar.

C. R. Ellery in reply.

Plaintiff seems to ground his contention of waiver upon two propositions: (1) That plaintiff's suit was filed after the contestable period had expired; (2) that if the contestable period had not expired at the time of plaintiff's suit, it should be disregarded. The policy was issued on March 21, 1932, and insured died on March 3, 1934. The contestable period had not expired. Aetna Life Ins. Co. v. Kennedy, 31 F.2d 971 (8th Cir.). The defense was not barred. Greenbaum v. Nat. Life Ins. Co. of Boston, 62 F.2d 56; Nat. Life Ins. Co. v. Carbaugh, (Ill.) 169 N.E. 218. It was error to hold that the contestable period had expired. Insurance Company v. Hurni Packing Company, 263 U.S. 167. While plaintiff contends that the contestable period had expired, he cites no cases in support of his contention. Plaintiff did not allege that the policy was issued in Wyoming and no evidence was introduced as to where the policy was issued or delivered. The case of Head v. N. Y. Life Insurance Company, 43 F.2d 517 (10th Circuit), is directly in point. The evidence does not show where insured died or where the policy was issued or delivered. Johnson v. Mutual Life Ins. Co., (Mass.) 62 N.E. 733. Plaintiff therefore failed to allege or prove a cause of action. Hyatt v. Lumber Company, 173 P. 1085; Mutual Life Ins. Co. v. Cohen, 179 U.S. 262; Life Insurance Company v. Head, 234 U.S. 149; Fire Insurance Co. v. King, (Fla.) 77 So. 168. The Wyoming statute cannot be read into a policy unless it be a Wyoming contract. The following authorities indicate the rules of pleading that must be followed by a party taking the position that a statutory insurance provision should be read into a contract of insurance. Equitable Life Assur. Soc. v. Pettus, 140 U.S. 226; Waddell v. Life Ins. Co., 147 N.E. 816; Sanderson v. Ins. Co., 72 F.2d 894; Head v. Insurance Company, supra; Fountain & Herrington v. Mutual Life Ins. Co., 55 F.2d 120; Atlas Life Ins. Co. v. Standfier, 86 S.W.2d 852. The overwhelming weight of authority is to the effect that the good health of the insured at the time of the payment of the first premium was a condition precedent, and the burden was upon the plaintiff to plead and prove compliance by the insured, with said condition precedent.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

On March 11, 1932, Clarence Rosenblum, of Cheyenne, Wyoming, made a so-called non-medical application for a policy of $ 2000 on his life, to the Sun Life Assurance Company, hereafter referred to as the insurance company or as the defendant. The applicant was then 18 years of age; his beneficiary was his father, Jacob Rosenblum, plaintiff herein. The applicant, answering certain inquiries, stated that he was in good health, and agreed--a clause also substantially contained in the policy, that "said policy shall not take effect until the first premium has been paid during my life and good health." He paid the first premium at the time of the application to defendant's agent, C. H. Hoffhine. The defendant issued a policy, dated March 25, 1932, in suit herein, pursuant to the application. It contains a clause of incontestability, etc., as follows:

"The policy is issued in consideration of the representations and agreements contained in the written application therefor and together with such application, a copy of which is attached hereto and made a part hereof, shall constitute the entire contract between the parties hereto and shall be incontestable after the policy has been in force during the life time of the assured for a period of two years from the date of issue except for non-payment of premiums and except as to provisions and conditions relating to disability and double indemnity benefits if any. All statements made by assured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall void the policy unless it is contained in the said application and a copy of the application is attached to this policy when issued."

The insured died on March 3, 1934, a few days prior to the expiration of the two years mentioned in the policy, and the insurance company refused to make payment thereon. Thereupon, the beneficiary under the policy brought an action in the district court of Laramie County to recover the amount of $ 2000 claimed to be due on the policy. The petition alleges that the insurance company is a corporation authorized to do business in the state of Wyoming; that it issued its policy on the life of the assured as above mentioned; that the assured died on March 3, 1934, while the policy was in full force and effect, and before any default in the payment of any premium due thereunder; that due notice of the death of the assured was given to the insurance company, and that "the plaintiff has done and performed each and every act and thing required of him to be performed under the terms of the policy and has demanded payment of the amount due thereunder." Judgment is asked for the sum of $ 2000. The defendant answered,...