Seely v. Manhattan Life Ins. Co.

• Decision Date: 04 February 1903
• Citation: 55 A. 425,72 N.H. 49
• Parties: SEELY v. MANHATTAN LIFE INS. CO.
• Court: New Hampshire Supreme Court

55 A. 425

72 N.H. 49

SEELY

v. MANHATTAN LIFE INS. CO.

Supreme Court of New Hampshire. Merrimack.

Feb. 4, 1903.

Exceptions from Merrimack County. Action by Mary Seely against the Manhattan Life Insurance Company. Transferred

from the trial term on defendants' exceptions. Exceptions overruled.

The assured died March 18, 1894. The writ was dated March 14, 1900, and contained the common counts, from which was omitted the specific sum sought to be recovered. By leave of the court, and without objection, two amendments were filed, one April 25, and another June 14, 1900, each setting out an action on a life insurance policy. The contract of insurance required satisfactory proof, at the company's office, of the death of the assured during the continuance of the policy. To prove the notice to the assured, required by the New York statute, of the time when the premium here in question would become due, a register book kept by the defendants, and containing an affidavit of the mailing of a notice to the assured, was admitted in evidence, subject to the plaintiff's exception. The other facts sufficiently appear in the opinion.

At the close of the evidence, the defendants' motion that a verdict be directed in their favor was denied, subject to exception. '

Napoleon B. Hale and Martin & Howe, for plaintiff. Streeter & Hollis, for defendants.

BINGHAM, J. 1. The plaintiffs right of action accrued not earlier than March 18, 1894, and suit was brought within six years thereafter. The declaration contained in the writ consisted of the common counts. While the ad damnum was stated, the specific sum sought to be recovered was omitted. The court permitted the plaintiff, without objection, to amend her declaration by adding new counts. The declaration, as first drawn, sufficiently stated a cause of action by which to amend. The cause of action was not changed by the amendment, and no reason appears why the suit was not seasonably brought.

2. The uncontradicted evidence of the plaintiff was that after the assured's death the defendants were notified thereof, and requested to send blank proofs of death; that they replied that "no proofs were needed—that the policy had lapsed for non-payment of premiums;" and, in response to a second notification, they replied that they "had decided not to allow * * * claim for insurance." This evidence, if believed, would establish a distinct denial of liability, and a refusal to pay, on the ground that the policy had lapsed, and would constitute a waiver of the condition requiring proof of death. Such a denial would be equivalent to a declaration by the defendants that they would not pay the insurance though proof of death were furnished. Under such circumstances, to require the proof would be an idle formality, the observance of which the law does not deem necessary. Knickerbocker Life Ins. Co. v. Pendleton, 112 U. S. 696, 5 Sup. Ct. 314, 28 L. Ed. 866; 2 May, Ins. (4th Ed.) § 469, and cases cited. It would seem, however, that the question whether the evidence establishes a denial of liability should be submitted to the jury. Perry v. Insurance Co., 67 N. H. 291, 296, 33 Atl. 731, 68 Am. St. Rep. 668; Farmers' Ins. Co. v. Moyer, 97 Pa. 441.

3. The policy was issued in the state of New York, and the contract is governed by the laws of that state so far as they relate to its nature, validity, and interpretation. It is there held that proof of payment of the premium is not essential to the maintenance of an action upon a life Insurance policy, even though it contains a provision that a failure to pay the premium when due shall render the policy void; that it is only when there is evidence of non-payment of premium, coupled with proof that the notice required by statute (Laws New York, 1892, p. 1972, c. 690, § 92) has been duly mailed to the assured, that a cause of action can be defeated; that a policy is valid until duly forfeited, and cannot be forfeited until the statutory notice has been given, and the 30 days therein specified have elapsed, without payment of the premium. Fischer v. Insurance Co., 167 N. Y. 178, 182. 183, 60 N. E. 431. It was therefore incumbent upon the defendants to establish these facts by competent proof, to entitle them to a verdict.

4. The statute in force when this policy was issued reads as follows: "No life insurance corporation doing business in this state shall declare forfeited, or lapsed, any policy hereafter issued or renewed, and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited, or lapsed, by reason of non-payment when due of any premium, interest, or instalment, or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest, instalment, or portion thereof, due on such policy, the place where it should be paid, and the person to whom the same is payable, shall be duly-addressed and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last known post office address, postage paid by the corporation, or by an officer thereof, or person appointed by it to collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable. The notice shall also state that unless such premium, interest, instalment, or portion...