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arising under a policy which has been is. I to be printed upon applications for policies sued in this commonwealth by any life in outside the state. The same limit is manisurance company.” Prima facie the words fest to the final requirement of the section "every policy" in the proviso mean every that no life insurance company transacting policy of the kind under consideration in business under the act shall issue any policy the principal clause, that is, policies issued to a resident of this commonwealth without in this commonwealth. The prima facie in certain characteristics intended to make the terpretation is confirmed by the next words scope of the contract clear. of the section. These are: "Each application

Primarily the proviso regulates the mak. for such policy shall have printed upon it in in which it shall be proved. There is no

ing or form of the contract, not the mode large bold-faced type the following words: ‘Under the laws of Massachusetts, each ap- pose, and that being so there is no ground

room for doubt that that is its chief purplicant for a policy of insurance to be is. for extracting from it a rule of procedure sued hereunder is entitled to be furnished broader than the rule of substantive law. with a copy of this application attached to It could not be tortured into a general rule any policy issued thereon.'»

It is not to of procedure, applicable to all policies be believed that these words were expected' wheresoever and by whomsoever issued, if and the contract by relation became operative | 412 (III. k); Todd v. State Ins. Co. 3 W. N. as a Minnesota contract. So, in Com. Mut. C. 330 (III. 8); Curnow v. Phønix Ins. Co. F. Ins. Co. v. William Knabe & Co. Mfg. Co. 37 S. C. 406, 16 S. E. 132 (the ultimate ques171 Mass. 265, 50 N. E. 516, it was held that tion in this case was as to the place where the the contract must be regarded as made in the

of action arose) ; Fidelity Mut. Life state from which the policy is mailed to the Asso. v. Harris, 94 Tex. 25, 57 S. W. 635 (111. Insured's agent, although the application doesc, d); Manhattan L. Ins. Co. v. Warwick, 20 not contain all the terms and conditions in-Gratt. 628, 3 Am. Rep. 218 (the ultimate quescluded in the policy,-at least if the policy tion in this case was as to the place where contains no extraordinary provisions.

premiums were payable).

In Northwestern Mut. L. Ins. Co. v. Elliott, 4. When policy delivered to insured by local 7 Sawy. 17, 5 Fed. 225 ; Pomeroy v. Manhatagent of insurer.

tan L, Ins. Co. 40 ni. 398; and Manhattan Le (a) When local agent required to countersign Ins. Co. v. Warwick, 20 Gratt. 628, 3 Am. Rep. policy.

218,-the stipulation as to countersigning was

coupled with a stipulation requiring the pay. While, as subsequently shown, there is much ment of the first premium before the policy isconflict among the authorities upon the question sued took effect; but the condition as to counwhether the contract shall be regarded as made tersigning alone would undoubtedly have been in the state in which the home office of the regarded as sufficient to locate the consumma. company is situated and in which the applica- tion of the contract in the state where the tion is accepted, or in the state of the insured's policy was countersigned by the agent. residence, where the policy is mailed to the The two cases next cited do not involve any local agent of the insurer and by him delivered question as to conflict of laws, but it is apto the insured, and there is no express stipu- parent that the principle applied by them is lation to the effect that the contract shall not the same as that established in the preceding take effect until the performance of certain cases. conditions by the insurer's agent, it is well es- Where a policy of life insurance issued by a tablished that when there is such a stipulation Missouri company stipulates that it shall not the contract is regarded as made in the state be binding upon the company until counterin which those conditions are performed, which signed by the agent in New Orleans and the is usually the state of the insured's residence. advanced premium paid, no contract is consum

Thus, where an application is accepted at mated where the applicant died before the the home office of the company in one state, policy had been countersigned or delivered, and the policy is mailed to the local agent of though the application had previously been acthe insurer in another state, to be by him de- cepted and the policy sent to the agent at New livered to the insured, but expressly stipu- Orleans. Hardie v. St. Louis Mut. L. Ins. Co. lates that it shall not be valid, or that it shall 26 La. Ann. 242. not take effect, until countersigned by such A policy of life insurance which provides agent, the contract is regarded as made in the that it shall not be enforced until counterstate in which the policy is so countersigned. signed by an agent at Boston is invalid till so Northwestern Mut. L. Ins. Co. v. Elliott, 7 countersigned, although such agent is himself Sawy. 17, 5 Fed. 225 (III. b); Continental L. the assureá, and the policy has been received Ins. Co. v. Webb, 54 Ala. 688 (III. 8, 2); Cur- and written by him. Badger v. American Poputiss v. Ætna L. Ins. Co. 90 Cal. 245, 27 Pac. lar L. Ins. Co. 103 Mass. 244, 4 Am. Rep. 547. 211 (III. r); Pomeroy v. Manhattan L. Ins. In Whitcomb v. Phonix Mut. L. Ins. Co. 11 Co. 40 Ill. 398 (III. d, h); Cromwell v. Royal Chicago Legal News 408, Fed. Cas. No. 17,530, Canadian Ins. Co. 49 Md. 366, 33 Am. Rep. however, it was held that the policy of insur258 (the ultimate question in this case related ance which was issued by a Connecticut corto the attachment of the proceeds) ; Daniels poration was not to be regarded as a contract v. Hudson River F. Ins. Co. 12 Cush. 416, 59 made in Massachusetts, although the policy Am. Dec. 192 (III. I), Heebner v. Eagle Ins. was not to take effect until countersigned by Co. 10 Gray, 131, 69 Am. Dec. 308 (III. s); that insurer's agent in that state, and was so Antes v. State Ins. Co. 61 Neb. 55, 84 N. W. countersigned by him. The decision was upon

sued upon in this state. Bottomley v. Metro | fect only contracts made within the jurispolitan L. Ins. Co. 170 Mass. 274, 276, 277, diction. Alutual L. Ins. Co. v. Cohen, 179 49 N. E. 438. Still more plainly it cannot U. S. 262, 265, 269, 45 L. ed. 181, 184, 186, be read as a rule of procedure for all suits 21 Sup. Ct. Rep. 106; Griesemer v. Mutual here upon policies issued upon Massachu-L. Ins. Co. 10 Wash. 202, 207, 38 Pac. 1031. setts lives or to persons domiciled in Massa- Nothing was said, or could have been dechusetts, or for suits by such persons against cided, in Considine v. Metropolitan L. Ins. corporations doing business in this state. Co., or Nugent v. Greenfield Life Asso., that The rule of procedure follows, and is meas extended the proviso to policies issued by ured by the rule of substantive law. The foreign companies outside the applications which are forbidden to be re- wealth. The policies in both these cases ceived in evidenee are those which are re- were issued in. Massachusetts. It would be quired by the Massachusetts law to be at most unusual for a state to try to regulate tached to the policy,—no others.

the form of contracts made outside of its Assuming that the proviso has the purpose jurisdiction, not reaching into the jurisdicjust stated, such cases as we have seen upon tion in their operation, and not necessarily kindred questions show that generally such ever coming before its courts. Commonly statutes will be construed as intended to af-'such an attempt would be, not only im

common

v.

the ground that the agent had no authority to In Millard v. Brayton, 177 Mass. 533, 52 L. refuse to countersign; that the countersigning R. A. 117, 59 N. E. 436, the additional fact was a mere ministerial act without any pur- appeared that in the application the wife of pose, over and above the delivery of the policy, the insured was the only beneficiary, while in except the preservation of the written evidence the policy she was not; and the court said that of delivery; and that it had been conclusively the contract was not made until the policy, established in Desmazes v. Mutual Ben. L. Ins. as changed, was delivered to the insured, and Co. 7 Ins. L. J. 926, Fed. Cas. No. 3,821, infra, the premium paid. that the delivery of the policy in the state was In Horton v. New York L. Ins. Co. 151 Mo. not sufficient to subject it to the local law. 604, 52 S. W. 356, it appeared that the local

agent, prior to the acceptance of the applica(b) Stipulation that contract is not to take tion at the home office, gave the applicant a

effect until delivery or payment of pre- conditional receipt which stipulated that if the mium.

risk were accepted the insurance should date Whatever may be the case in the absence from the date of the receipt. The court held, of an express stipulation in the contract that however, that it was not shown that the preIt shall not take effect until the payment of mium was in fact paid before the acceptance the first premium, or until the payment of the

of the application, and under the circumfirst premium and the delivery of the policy, stances it could not be inferred that it was, it is well established that when there is such

and that the local agent had no authority co a stipulation, and the first premium does not stipulate that the contract should take effect accompany the application, but the company before delivery of the policy. sends the policy to its own agent, who delivers

The court, in Fidelity Mut. Life Asso. the same to the insured upon receipt of the Harris, 94 Tex. 25, 57 S. W. 635 (I11. d. 1) first premium from the latter, the contract impliedly conceded the general rule, but held will be deemed to have been made in the state that it did not apply in that case, notwithwhere the policy was so delivered and the pre- standing that the policy expressly provided mium paid, and not in the state where the that it should not be binding until delivery application was accepted and from which the during the lifetime and good health of the appolicy was mailed. Equitable Life Assur. Soc. plicant, and until the first payment due therev. Clements, 140 U. S. 226, 35 L. ed. 497, 11 on had been made. The decision is upon the Sup. ('t. Rep. 822 (III. a, d, k); Mutual L. ground that the premium accompanied the apIns. Co. v. Cohen, 179 U. S. 262, 45 L. ed. plication, and that the stipulation in question 181, 21 Sup. Ct. Rep. 106 (III. a, k); Mutual was one generally used in blank policies to L. Ins. Co. v. Hill, 193 U. S. 551, 48 L. ed. cover cases where the first premium has not 24 Sup. Ct. Rep. 538; Mutual Ben. L. Ins. Co. been paid when the policy issues, but is to be V. Robison, 54 Fed. 580, Affirmed in 22 L. R. paid subsequently. New York L. Ins. Co. v. A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Babcock, 104 Ga. 67, 42 L. R. A. 88, 30 S. E. Fed. 723 (I11. a); Albro v. Manhattan L. Ins. 273, contains nothing contrary to the rule. It Co. 119 Fed. 629 (III, a); Knights Templar is true that it was held in that case that the & M. Life Indemnity Co. v. Berry, 1 C. C. A. receipt by an agent from his insurance com561, 4 U. S. App. 353, 50 Fed. 511, Affirming pany of a policy to be unconditionally de46 Fed. 439 (III. n); Northwestern Mut. L. livered by him to the applicant is, in law, Ins. Co. v. Elliott, 7 Sawy. 17, 5 Fed. 225 tantamount to a delivery to the insured, al(III. b); Ford v. Buckeye State Ins. Co. 6 though the agent never parts with the posBush, 133, 99 Am. Dec. 663 (III. b); Millard session of the policy, and although its delivery v. Brayton, 177 Mass. 533, 52 L. R. A. 117, 59 to the applicant is, by contract, made essential N. E. 436 (III. 8, 2); Cravens v. New York L. to its validity. The decision, however, is upon Ins. Co. 148 Mo. 683, 53 L, R. A. 30%, 50 S. the ground that, under the circumstances of the W. 519, Affirmed in 178 U. S. 389, 44 L. ed. case, there was a delivery in legal effect, though 1116, 20 Sup. Ct. Rep. 962 (III. a, k) ; Horton no manual delivery. The question in the case v. New York L. Ins, Co. 151 Mo. 604, 52 S. W. was whether any contract had been consum356 (III. a, k); Watt v. Gideon, 8 Pa: Dist.mated, the applicant having died after the polR. 395, 22 Pa, Co. Ct. 499.

icy had been received by the local agent, but

politic, but beyond its power. Probably the | 170 Mass. 274, 277, 49 N. E. 438, it was aspower of this state was not increased in sumed that, unless the contract was made in that respect by the fact that the present de- | Massachusetts, an enactment like the one in fendant had complied with the laws of question did not apply. See also Millard v. Massachusetts, and did business here. Mu- Brayton, 177 Mass. 533, 537, 52 L. R. A. tual L. Ins. Co. v. Cohen, 179 U. S. 262, 269, 117, 59 N. E. 436, where the contract was 45 L. ed. 181, 186, 21 Sup. Ct. Rep. 106, made with a corporation doing business in Citing Griesemer v. Mutual L. Ins. Co. 10 this state. Wash. 207, 38 Pac. 1031; Belknap v. John- The most natural interpretation of the ston, 114 Iowa, 265, 86 N. W. 267. But seeming attempt in § 3 to extend the operawere it otherwise, we should need clear | tion of the statute in certain cases beyond words or strong grounds of policy before the limits of the state would be to take supposing that the legislature had pressed that attempt as confined to Massachusetts its power to such an extreme. Certainly corporations. But, however that may be, we we should not force an unnatural construc- find nothing in it which leads us to doubt tion upon plain language in order to reach that the words in $ 73, "which has been isso unusual a result.

sued in this commonwealth,” mean actually In Bottomley v. Metropolitan L. Ins. Co.' issued, and are not extended by the end of without having received the same from the lat. laws of New York, and apparently proceeded ter. Had the question related to the place upon the assumption that the contract was made where the contract was made, the decision would elsewhere. The latter decision was, in turn, clearly have been that it was made in the state reversed by the United States Supreme Court of the insured's residence, where it was, in le- in Mutual L. Ins. Co. v. Hill, 193 U. S. 351, gai effect, delivered.

48 L. ed. 24 Sup. Ct. Rep. 538, which The decision in Mutual L. Ins. Co. v. Hill, held that the stipulation did not govern the 49 L. R. A. 127, 38 C. C. A, 159, 97 Fed. 263, case, and also held that the contract was made however, seems to be opposed to the rule above in Washington. stated. In this case it was held that a policy The rule above stated assumes that the ques. of life insurance issued by a New York corpora- tion is merely as to where the contract was action was a New York contract and governed tually and in fact made (i. e. consummated). by the law of New York (apparently because, It is not concerned with the question as to the in the view of the court, the contract was made consequences of the contract having been made in New York, the domicil of the insurer), not- in the state where it was delivered by the inwithstanding that the policy was forwarded surer's agent to the insured. In some of the to a local agent of the company in Washington, cases there was an express stipulation to the who, upon payment of the first premium, deliv- effect that the contract should be held and ered the same to the insured, although there construed at all times and places to have been

a stipulation in the application (which made in the state where the home office of the seems to have been made a part of the pols company was located. Such a stipulation canicy) that there should be no contract of in- not, of course, change the place where the consurance until the policy had been delivered and tract was actually consummated, though it may the premium paid. The decision is made upon affect the ultimate question as to the governthe supposed authority of Equitable Life Assur. ing law; and the effect of such a stipulation Soc. v. Nixon, 26 C. C. A. 620, 48 U. S. App. is therefore considered in connection with 482, 81 Fed. 796, and Equitable Life Assur. the question as to the governing law in re Soc. v. Trimble, 27 C. C. A. 404, 48 U. S. App. spect to the various matters that arise with re565, 83 Fed. 85. But the court in the Hill spect to insurance contracts. Case apparently overlooked the fact that the It is sufficient in this connection to point Nixon Case (and the Trimble Case was de- out that the United States Supreme Court did cided upon the authority of the Nixon Case) not intimate any doubt as to the correctness was expressly distinguished from Equitable Life of the position taken by it in the Clements Case, Assur. Soc. V. Clements, 140 U. S. 226, 35 L. / when, in the subsequent cases of Mutual L. Ins. ed. 497, 11 Sup. Ct. Rep. 822, upon the ground Co. v. Phinney, 178 U. S. 327, 44 L. ed. 1088, that the payment of the first premium accom- 20 Sup. Ct. Rep. 906 : Mutual L. Ins. Co. v. panied the application, whereas in the Hill Sears, 178 U. S. 345, 44 L. ed. 1096, 20 Sup. Ct. Case it expressly appeared that the first pre- Rep. 912; and Mutual L. Ins. Co. v. Hill, 178 mium was paid when the policy was delivered. U. S. 347, 44 L. ed. 1097, 20 Sup. Ct. Rep. It is not apparent why the Hill Case on its 914,-it treated as an open question the point facts was not substantially like the Clements whether a policy of insurance issued by a New Case. The decision in the Hill Case was re- York company and sent to its local agent in versed by the United States Supreme Court Washington, who there delivered it to the in(178 U. S. 347, 44 L. ed. 1097, 20 Sup. Ct. Rep. sured upon receipt of the first premium, was 914) without passing upon the question wheth governed by the law of New York or Washer the New York statute governed, upon the ington, notwithstanding that the application ground that, even if it did, the failure to give expressly stipulated that the contract should notice as required by it had been waived. Upon not take effect until the first premium had been a subsequent appeal in this case it was held paid and the policy delivered. The question by the circuit court of appeals (55 C. C. A, 536, which the court held to be an open one was 118 Fed. 708) that the New York statute gov- ot as to the place where the contract was acerned ; but, as shown in supra, III. a, the de- tuaily made (i. e. consummated), but as to cision was based upon the express stipulation the effect of a stipulation in the application, that the contract should be governed by the I which was made a part of the policy, that the

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$ 3, or that the proviso under consideration was confined to contracts made in Massais limited to policies actually issued here. chusetts in all that it actually said. But,

The statute construed in Emery v. Bur- as was observed, antracts of that sort necbank, 163 Mass. 326, 28 L. R. A. 57, 39 N. essarily reach into the jurisdiction in their E. 1026, deals with a case standing on pe-operation, and naturally find their place of culiar grounds,—the case of contracts by performance, as well as their forum for a Massachusetts testators to make a will. The suit in case of breach, in the domicil. There decision left it undetermined whether the were special reasons, therefore, for believact referred only to procedure, but held ing that the statute meant to put forth all that, even if directed primarily to the valid- the powers of the state by requirements for ity and form of such contracts, it embodied procedure as well as for form in matters in a fundamental policy, and also by implica- which this commonwealth was so peculiarly tion forbade suits against Massachusetts concerned. But those considerations have testators upon oral contracts made out of no application to this case. Massachusetts the state. No doubt that was reading a is not concerned with contracts in general good deal into the act, if, as it seemed, the made elsewhere, simply because one of the act dealt primarily and expressly with the parties is domiciled here. form alone of the contracts, and therefore Judgment for the defendant. same was made subject to the charter of the far as appears, there was no express stipulation company and the laws of New York. The same imposing any conditions precedent to the taking is true of the decision of the circuit court effect of the contract. Equitable Life Assur. of appeals upon a second appeal in Mutual Soc. v. Winning, 7 C. C. A. 359, 19 U. S. App. L. Ins. Co. v. Hill, 55 C. C. A. 536, 118 Fed. 173, 58 Fed. 541 (III. k) ; Hicks v. National L. 708, to the effect that such stipulation was susi- Ins. Co. 9 C. C. A. 215, 20 U. S. App. 410, 60 cient to subject the policy to the New York Fed. 690 (III. k); Wiestling v. Warthin, 1 Ind. statute.

App. 217, 27 N. E. 576 (III. b); Franklin Ins. It would seem to make no difference whether Co. v. Louisville & A. Packet Co. 9 Bush, 590 the stipulation is to the effect that the con- (III. b); Bailey v. Hope Ins. Co. 56 Me. 474 ; tract shall be regarded as made in

Stevens v. Raşin Fertilizer Co. 87 Md. 679, 41 ta in state and subject to the laws of such state, Atl. 116 (111. b) ; Expressman's Mut. Ben. Asso. or merely to the effect that it shall be subject v. Hurlock, 91 Md. 585, 46 Atl. 957 (III. d); to the laws of such state, without expressly Thwing v. Great Western los. Co. 111 Mass. stipulating that it was made in that state. 93 (Ill. g.); Reliance Mut. Ins. Co. v. Sawyer, Neither form of stipulation can change the fact 160 Mass. 413, 36 N. E. 59, (III. b); Dolan v. if the contract was in reality made (i. e, con- Mutual Reserve Fund Life Asso. 173 Mass. 197, summated) in another state by the performance 53 N. E. 398 (III. I); Perry v. Dwelling-House of the last condition precedent in that state. Ins. Co. 67 N. H. 291, 33 Atl. 731 (III. 1);

Spencer v. Myers, 73 Hun, 274, 26 N. Y. Supp. (c) When no conditions precedent expressly im- 371 (III. h). posed.

The decision in the last case, that the

law of New York governed, was affirmed by the In the cases discussed in the last two subdi

court of appeals (150 N. Y. 269, 34 L. R. A. visions, it will be observed that the contract 175, 44 N. E. 942 [III. h]) without passing expressly made the acts which were performed upon the question as to where the contract was in the state of the insured's residence (i. e., made; the court holding that the contract was the countersigning of the policy by the local governed by the law of New York even if not agent, and the delivery of the policy, and the made there. payment of the first premium) conditions of its In most of the foregoing cases it appeared taking effect; and the place of the making that the insured was a resident of the state of the contract was therefore necessarily lo- in which the policy was delivered, and, if tbe cated in that state. The dificulty in determin- insurance was upon property, that the proping the place where the contract is made, when erty was situated in that state. This, however, the policy is mailed to an agent of the insurer was not made a qualification of the decision ; and by him delivered to the insured, arises when and in Bailey v. Hope Ins. Co. 56 Me. 474, it no conditions are expressly imposed upon the was held that the contract was made in Maine, contract's taking effect. The question then de- where the policy was delivered, although the pends upon the further question whether in such property insured was a building located in New a case there are any implied conditions prece- Hampshire. dent, subsequent in point of time to the accept- In Kelley v. Mutual L. Ins. Co. 109 Fed. 36, ance of the application, which are to be per- (Reversed upon another ground in 52 C. C. A. formed in the state of the insured's residence. 154. 114 Fed. 268), the court, speaking of a polIf so, the contract is, of course, made in the lat- icy of life insurance issued by a New York comter state, and if not it is made in the state where pany to a resident of Iowa, said that the inthe application is accepted.

sured and the beneficiary resided in Iowa at In the following cases in which the applica- the date of the application and the issuance of tion was received by a local agent of the insur- the policy ; that the insured continued to reer in the state of the insured's residence, and side there until his death, and that the beneforwarded to the insurer's home office and there ficary was still a resident of the state ; that accepted, and the policy mailed to the agent the medical examination was in Iowa, that the and by him delivered to the insured, it was held application was made there, and that the conthat the contract was made in the state in tract was therefore an lowa contract; and which the policy was so delivered, although, so that all Iowa laws upon the subject then in

force entered into and formed part of the con- determine the place where the contract was tract. It does not appear from the report of made ; though the point in that case was uniinthe case how or where the policy was deliv. portant because the policy was mailed directly ered, nor does it appear that there was any to the insured, and it was held that in any erent stipulation in the policy that it should not the deposit of the policy in the mall at the home take effect until the delivery of the same and office constituted a delivery. the payment of the premium, though the court In New York L. Ins. Co. v. Babcock, 104 cites and relies on Equitab. Life Assur. Soc. Ga. 67, 42 L. R. A. 88, 30 S. E. 273, it was v. Clements, 140 U. S. 226, 35 L. ed. 497, 11 expressly held that actual delivery of the polSup. Ct. Rep. 822 (II. d, 4, (b)).

icy to the insured is not essential to the reWhere a contract of insurance is made and lidity of a contract of life insurance, unless delivered, and the premiums are paid in Georgia, expressly made so by the terms of the conwhere the insured resides, it is a Georgia con- tract. The decision was upon the assumption tract, and is governed by the laws of that state, that the policy was sent to a local agent of the though the insurer is a Pennsylvania corpor- insurer. The question in this case was whethation. Fidelity Mut. Life Asso. v. Jeffords, er any contract had been made, not where it 53 L. R. A. 193, 46 C. C. A. 377, 107 Fed. 402 was made ; but the principle declared is appli. (III. I), Citing Equitable Life Assur. Soc. v. cable to a case of the latter kind. Clements, 140 U. S. 226, 35 L. ed. 497, 11 Sup. So the court in Horton v. New York L. Ins. Ct. Rep. 822. The circumstances under which Co. 151 Mo. 604, 52 S. W. 356, said that actual the policy was issued do not appear. The state- dellvery of the policy is not essential to the ment that the contract was made in Georgia consummation of the contract if the company seems to beg the question which was discussed signifies to insured by other means that his apin the case cited. Possibly the court may have plication has been accepted. In Stevens v. meant merely that, the contract having been Rasin Fertilizer Co. 87 Md. 679, 41 Atl. 116, made in Georgia, it would be governed by the however, the court said that, in order to comlaw of that state wherever it may have been plete the contract, it was necessary that it performable, though nothing appears in the should be delivered and the cash paid. And in case as to where the contract was performable. Expressman's Mut. Ben. Asso. V. Hurlock, 91

In many of the foregoing cases it is difficult, Md. 585, 46 Atl. 957, where it was held that a if not impossible, to determine the exact certificate of insurance issued by a New York ground of the decision,—that is, to determine association to a resident of Maryland was a which one the three matters referred to in Maryland contract where the certificate wa desubdivision II. d, 1, supra (namely, notice to livered to and the premium paid by him in the the applicant of the acceptance of his applica- latter state, the court said it saw no reason why tion, delivery of the policy to the applicant, or the general rule, that a contract is not a compayment of the first premium by him), the pleted contract until it is tendered by one parcourt regarded as conditions precedent, the place ty and accepted by the other, did not apply. of perforniance of which determined the place if the court in the last two cases had referof the consummation of the contract. For in- ence to delivery as such, and not to delivery stance, in Hicks v. National L. Ins. Co. 9 as the means of communicating notice to the C. C. A. 215, 20 U. S. App. 410, 60 Fed. 690, insured of the acceptance of his application, the court expressly relies on Equitable Life As. the place where the policy was delivered would sur. Soc. v. Clements, 140 U. S. 226, 35 L. ed. determine the place of the consummation of 497, 11 Sup. Ct. Rep. 822, in which the decision the contract, even though the premium had been expressly rests upon the stipulation that the paid before the acceptance of the application, contract should not take effect until the pay- and the insured had been otherwise notified of ment of the first premium, although, so far the acceptance of his application. In neither as appears from the report of the case, there of these cases, however, did it appear that the was no such stipulation in the Hicks Case. insured had notice of the acceptance of his

It is important to determine, if possible, application before the delivery of the policy ; whether the courts in these cases regarded all so that the court may have had reference to deof the matters referred to as conditions precelivery merely as the means of notice of the acdent, or, if not, which were so regarded.

ceptance of the application. In Perry v. Dwelling-House Ins. Co. 67 N. H. It would seem that the decision in Reliance 291, 33 Atl. 731, the court said the contract was Mut. Ins. Co. v. Sawyer, 160 Mass. 413, 36 concluded by the delivery and acceptance of the N. E. 59, must rest upon the ground that eipolicy,—not because of its delivery, but because ther notice to the applicant of acceptance of until that moment the insured had no notice his application, or delivery of the policy as of the acceptance of his application. This such, or both, are conditions precedent to the language would seem to indicate that, if such taking effect of the contract; since in that case notice had been given to the insured at the it appeared that the premium note accompanied home office (perhaps if such notice had been the application, so that, assuming that the sent him through the mail from the home of payment of the premium is ordinarily a condifice), the contract would have been regarded tion precedent, such condition had been peras made at the home office. The court may

formed in this instance before the acceptance have also regarded the payment of the first of the application. premium as a condition precedent; but it is In Thwing v. Great Western Ins. Co. 111 clear that it did not regard the delivery of

Mass. 93: Franklin Ins. Co. v. Louisville & A. the policy as such, apart from its character as l'acket Co. 9 Bush, 590; Wiestling v. Warthin, notice of the acceptance of the application, as 1 Ind. App. 217, 27 N. E. 576; and Stevens a condition precedent, the place of performance v. Rasin Fertilizer Co. 87 Md. 679, 41 Atl. of which determined the place where the con- 116,—the premium was paid when the poltract was made. Galloway v. Standard F. Ins. icy was delivered, and therefore, so far as Co. 45 W. Va. 237, 31 S. E. 969, also expressed the facts in the case are concerned, the dethe opinion that the place of delivery did not cisions may have been upon the ground that

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