Wall v. Equitable Life Assur. Soc.

• Decision Date: 01 January 1887
• Citation: 32 F. 273
• Parties: WALL v. EQUITABLE LIFE ASSUR. SOC.
• Court: U.S. District Court — Western District of Missouri

32 F. 273

WALL v. EQUITABLE LIFE ASSUR. SOC.

United States Circuit Court, W.D. Missouri, Western Division.

1887

Plaintiff alleges in the second count of the amended petition that the defendant is a corporation created and existing under the laws of the state of New York, and is doing business as a life insurance company in the state of Missouri, and is subject to the laws of said state; that the policy sued on was executed on the twenty-third day of December, 1880, by the defendant, and delivered to the insured, who was then and remained a resident of the state of Missouri, by the terms of which policy defendant agreed to pay this plaintiff, within 60 days after proof of death, to be furnished defendant at its office in New York, $5,000; that the insured paid the annual premiums for the years 1881 and 1882, when due, in addition to the premiums paid at the time of issuing the policy, making three full annual payments of premiums; that by virtue of these payments the said policy, on the fifteenth day of December, 1883, had acquired a net value and was worth the sum of $161.05, computed upon the American table of mortality; that neither the insured nor the plaintiff was indebted to defendant at that time for unpaid premiums, or on any other account; that the insured at that time was 39 years old; that three-fourths of such net value of said policy applied and taken as a net single premium for temporary insurance for the amount written in the policy, entitled said insured to a temporary insurance for said amount for a term expiring August 30, 1886; and that said policy was, by reason of the premises and the provisions of the statutes of Missouri, kept and continued in full force and effect until said August 30, 1886. The insured died January 21, 1884. Plaintiff asks judgment for said sum of $5,000, and interest.

Defendant for answer to the second count of the amended petition alleges that the policy sued on was executed for the defendant at its office in New York; that the premiums were payable there, it being, however, provided in the policy that at the pleasure of defendant suitable persons might be authorized to receive such payments, but only on production of the company's receipts therefor signed by the New York officers; that the loss in case of death was to be paid at the New York office.

And defendant avers (1) that, by reason of the contract being so by it executed, and so by it performed in the state of New York, it was a contract under, and to be construed and governed by, the laws of New York, and not by the laws of any other state, and that defendant's obligation was not within the purview of any law of Missouri touching policies of insurance, nor subject to be modified or affected thereby (2) that, in the application for insurance, the insured, in consideration of the agreements in the policy, thereby applied for, (being the agreement in said policy providing for paid-up insurance in the event of the surrender of the policy at certain periods and under certain conditions specified,) waived and relinquished all right or claim to any other surrender value than so provided, whether required by a statute of any state or not.

Defendant further states that the said agreement last above mentioned and contained in said policy, and in consideration of which agreement said Samuel E. Wall so waived and relinquished as aforesaid all right or claim to any other surrender value than that so provided, was in the words following, to-wit:

'And further, that if premiums upon this policy, for not less than three complete years of assurance, shall have been duly received by said society, and this policy should thereafter become void in consequence of default in payment of a subsequent premium, said society will issue, in lieu of such policy, a new paid-up policy, without participation in profits, in favor of said Alice L. Wall, if living, and if not living, to the children of said Samuel E. Wall, or their guardian, for their use; or, if there be no children surviving, then to the executors, administrators, or assigns of said Samuel E. Wall, for the entire amount, which the full reserve on this policy, according to the present legal standard of the state of New York, will then purchase as a single premium, calculated by the regular table for single premium policies, now published and in use by the society: provided, however, that this policy shall be surrendered, duly receipted, within six months of the date of default in payment of premium as mentioned above.'

And defendant avers that even if said policy of insurance and this defendant's contract therein or obligation thereunder had otherwise been within the purview of or subject to be modified or affected by any provision of any law of the state of Missouri touching policies of insurance on life, which defendant denies, yet, by reason of the premises, the plaintiff is estopped from claiming the benefit of any provision of any law of the state of Missouri, if any such there be, for any other or different surrender value or upon any other or different conditions from those in said policy stipulated for as above set forth; and further avers that said policy of insurance has never been surrendered or offered to be surrendered to this defendant.

The plaintiff moved to strike out so much of the answer to the amended petition as is set out above, on the grounds, viz that the matter No. 1 is a mere conclusion of...