Selvage v. Hancock Mut. Life Ins. Co.

• Decision Date: 17 June 1882
• Citation: 12 F. 603
• Parties: SELVAGE v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: U.S. District Court — Eastern District of New York

12 F. 603

SELVAGE v. JOHN HANCOCK MUT. LIFE INS. CO.

United States Circuit Court, E.D. New York.

June 17, 1882

Estes &amp Barnard, for plaintiff.

Blatchford Seward and Griswold & Decosta, for defendant.

WHEELER D.J.

This is an action upon a policy of life insurance, and has now, after verdict for the plaintiff and before judgment thereon, been heard upon a motion of the defendant for a new trial. The policy provided for the payment of a premium at the office of the company, 'or to their agents producing the receipt of said company,' on or before the thirteenth day of July in every year during the continuance of the policy; that if any premiums should not be paid on or before the day when due the policy should thereupon become forfeited and void, except as provided by the non-forfeiture law of Massachusetts; and that no person except the president or secretary was authorized to make, alter, or discharge contracts or waive forfeitures. The premiums were paid to and received by agents producing receipts-- for 1871 on July 17th; for 1872 on July 13th; for 1873 on August 1st; for 1874 on September 25th. The assured died March 13, 1879. The premium for 1875 was not paid on or before July 13th, and has never been received. If the plaintiff is entitled to have that premium treated as paid or tendered in due time, the non-forfeiture laws of Massachusetts would continue the policy so as to cover the death, otherwise not. The plaintiff's evidence tended to show that some time before July 13th, in that year the assured and the plaintiff, being about to leave home arranged with Edson C. Chick, a friend, to see to this payment for them; that afterwards, but still some time before the day, Chick called upon the agents who had charge of the defendant's business for that state, and who had produced the prior receipts and received the payments, and who had the receipt for that premium, and inquired when the premium would be due, being ignorant of the precise day and having no means at hand to ascertain it; that the agent said that their safe was locked and another agent was gone out with the key, so that the information could not then be given; that he then took Chick's address, and told him, further, that he would inform him seasonably of the day; that he never did inform Chick or the assured or the plaintiff of the day; that on the eighteenth day of August the assured took the requisite amount of money and started for the office of the agents, saying he would go there and tender the amount of the premium and returned saying he had done so; that controversy soon arose about non-acceptance of the premium, which was renewed after the death, in which the agents and officers of the defendant were fully informed that a tender on that day was claimed to have been made, and did not deny or dispute it. The defendant's evidence tended to show that notice was directed to be sent to the assured 30 days before the day; that no arrangement was made with Chick about informing him of the day; and that no tender of that premium was made. The defendant requested that a verdict be directed in its favor. The jury was instructed that if the assured and the plaintiff arranged with and relied upon Chick to see to the payment of that premium, and Chick applied at the office of the agents before the day for...