Summit v. United States Life Insurance

Deemer, J. William J. Summitt, Avho lived at Carson, in this state, took out a policy of life insurance for $he sum of $2,000, in tbe defendant company, in January of tbe year-1893. He paid tbe first year’s premium of $30.54, and agreed to pay an annual premium of like amount on tbe 27th day of January in each and' every year during tbe continuance of tbe contract. These payments‘were to be made at tbe company’s offices in Neiv York City, and payment of the-insurance was also to be made at that place. Tbe policy Avas' to take effect upon the delivery thereof to tbe assured, but it Avas signed at tbe home office in New York City. Nothing is shown regarding tbe place of actual delivery, although defendant pleaded a forfeiture thereof, “pursuant to tbe statutes of the state of NeAv York.” During the trial tbe quoted part of this plea was withdrawn, and plaintiff thereupon-pleaded that tbe policy Avas governed by tbe laws of tbe state of New York, and set forth what purported to be tbe statutes of that state regarding forfeiture of life insurance policies. Defendant also pleaded failure on tbe part of tbe assured to pay any of the premiums called for by tbe contract of insurance, save tbe first one, and relied upon this provision of tbe — 683 — policy as a complete defense: “Failure to make páyment of any subsequent premium either to the Company or to a duly authorized agent in exchange for receipt signed as above, or non-payment of principal or interest on any note given in connection with this policy when due, will render this contract null and void. Whenever this policy shall become null and void from any cause, all payments made hereunder shall become forfeited to the Company.” The assured died on the 8th day of August 1897. On July 9, 1900, defendant was notified of his death, and requested to send blanks for proofs of his death. The defendant company denied liability, and refused to send the blanks. This suit followed. . Plaintiff pleaded nothing but the issuance of the policy, the death of the assured, the appointment of the administratrix, and waiver of proofs of death. The defenses to the action have already been noticed. Something is said in argument with reference to the insufficiency- of the allegations of the petition, but, as that point does not seem to have been raised in the lower court, we give it no attention. Primarily, the case hinges on -the question as to whether or not the policy was a New York contract. 1. place of contract. Appellant practically concedes that, if it is an Iowa contract, she has no right to recover. To our minds the evidence shows that the contract was made, executed, and delivered in the state of New York, .and that it is to be governed by the laws thereof. This brings us, then, to another disputed proposition, and that is, what was the law of New York at the time it is claimed the policy was forfeited ? 2. x,Awsof authentica-te: sumptíre evidence. Appellant introduced a statute of that state 'passed in the year 1876, -with reference to the forfeiture of life insurance policies, which provided, in substance, that no such policies should be forfeited unless a notice in writing, stating the amount of the premium, when due, and the place where it should be paid, “shall have been -addressed and mailed by the company issuing the policy to the assured, postage paid, at — 684 — his last known post office address, .not less than thirty or more than sixty days next before such payment becomes due,” etc. To' meet this, defendant offered in evidence what purported to be “The Laws of the State of New York passed at the 115th Session of the Legislature ending April 21st, 1892, and at an extraordinary session began on April 25th, 1892, and ending April 26, 1892.” They bore the imprint “Albany. Banks Brothers publishers 1892.” After the title page the book bore the following certificate: “Certificate. “Office of the Secretary of the State of New York. “Albany, August 1, 1892. “Pursuant to the directions of an act entitled ‘An act relative to the publication of the laws,’ passed April 12, 1843, I hereby certify that the following volume of the laws of this state was printed under my direction. “Prank Bice, Secretary of State.” Together with the following lines below, viz: “In this volume every act which received the assent of the majority of all the members of the Legislature, three-fifths of all' the members elected to either House being present, pursuant to section 21 of article 3 of the Constitution of this state, is designated ‘passed, three-fifths being present.’ See Laws of 1847, chapter 253, as amended by Laws of 1888, chapter 4. And every act which received the assent of two-thirds of all the members elected to each branch of the Legislature, pursuant to section nine of article one of the Constitution of this state, under its title, by the words ‘passed by a two-thirds vote.’ See Laws of 1842, chapter 306, as amended by the laws of 1888, chapter 4.” Appellant objected to these publications because they do not purport to have been published by authority of the state of New York, because not proved to have been published by authority of said state, and because not proved to ■ be commonly admitted as evidence of the laws of New York in the courts of that state. Section- 4651 of our Code reads as fol — 685 — lows: “Sec. 4651. Printed Copies of the Statutes. Printed copies of the statute laws of this or any other of the United States, or of Congress, or of any foreign government, purporting or proved to have been published under the authority thereof, or proved to be commonly admitted as evidence of the existing laws in the courts of such state or government, shall be admitted in the courts of this state as presumptive evidence of such laws.” Such statutes as this are common to many of the states of this Union, and have frequently been before the courts' for construction/ The real question before us in this connection is, do these certificates which we have quoted show that the so-called “Statutes of the State of New York” purport to have been published under the authority of the state? If so, the books were admissible in evidence; if not, they should not have been received. We think they do so show. In this we are sustained by the following cases construing similar statutes: Vaughn v. Griffith, 16 Ind. 353; Eagan v. Connelly, 107 Ill. 458; Paine v. Lake Erie R. R., 31 Ind. 283; Falls v. U. S. Savings Co., 97 Ala. 417 (13 South. Rep. 25, 24 L. R. A. 174, 38 Am. St. Rep. 194); Merrifield v. Robbins, 8 Gray, 150; Leach v. Linde, 70 Hun. 145 (24 N. Y. Supp. 176). See, also, Webster v. Rees, 23 Iowa, 270. The case is readily distinguishable from Goodwin v. Provident Ass’n, 97 Iowa, 227. There, there was no certificate that the statutes were published by authority. The showing simply was that the Secretary of State had compared them with the original and found them correct. They were not published by authority of the state, but by a private individual. 3. no:,--payForftít«?e* o”Sn®fc!ofy premium. The particular statute relied upon by the defendant which appears in this book reads as follows, to wit: “Sec. 92 [Laws N. Y. 1892, p. 1972, c. 690]. No forfeiture of policy without notice. No life insurance corporation doing business m this state shall aedare 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 — 686 — 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 installment 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, installment 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 samo is payable. “The notice shall also state that unless such premium, •interest installment, or portion thereof, then due shall be paid to the corporation, or to a duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereon will become 'forfeited and void except as to the right to a surrender value, or paid up policy as in this chapter provided. “If the payment demanded by such notice shall be made within the time limited therefor, it shall be taken in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited or lapsed until the expiration of thirty days after the mailing of such notice. “The affidavit of any officer, clerk or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given.” On January 6, 1894, the defendant company, acting under this statute, mailed the assured the following notice: “B. 23121. Des M. William J. Summitt, Carson, Iowa. The United States Life Insurance Company. In the City — 687 — of New York. 261, 262, 263 Broadway, New York. Notice is hereby given pursuant to chapter 690 of the Laws of New York, of 1892, that the annual premium on Policy No. 75,338, amounting to $30.54, will fall due and be payable to the company, at its office in the city of New York, on January 27th, 1894, — if said policy be in force on that day. And unless such premium be paid to the company, or to a person authorized to collect such premium, holding the companies receipt therefor signed by the President, Secretary, Assistant Secretary or Actuary, by or before the day it falls due, or within ten days thereafter (ten days grace being hereby allowed) the policy and all payments thereon will become forfeited and void, except as to the right to such paid up policy or surrender equity as the policy holder may be entitled to under the provisions of said chapter, or by the terms of said policy. C. P. Praleigh, Secretary.” Conceding, arguendo, that the statute which we have quoted was in force when this notice was sent, appellant contends that it is insufficient in the following particulars: First. Because the person who sent it was not the corporation, nor an officer thereof, nor a person appointed by it to collect such premium. Second. Because of the condition in the notice, “if such policy be in force on that date.” Third. Because of this provision: “Unless such premium shall be paid to the company, or to the person authorized to- collect such premium holding the company’s receipt therefor, signed by the treasurer and secretary,” etc. Fourth. Because of the ten days of grace allowed. Fifth. Because the premium receipt was sent to one Spinney, the defendant’s agent at Des Moines, without notice to the insured thereof. Of these in their order. The first point seems to be based upon a misconstruction of the statute. It says that postage must be paid by the corporation, or by an officer thereof, etc. But, if it read as contended by appellant, the notice was given by the secretary of the defendant, who was, of course, an officer thereof. The affidavit required was made by a clerk or agent, or one auth — 688 — orized to mail the notice, as provided in 'the latter part of the statute quoted. The second point is wholly without merit. The statement made in the notice was for the protection of the company, and had no tendency to mislead or prejudice the rights of the assured. It was to save any question of waiver of prior defaults through the sending of the notice. The statement as to where the premium might be paid, which is referred to in the third objection, was for the benefit of the assured. He could advantage himself of the provision, or not, as he saw fit. If he was not notified as to the name and address of the agent who held the premium receipt, this in no manner relieved him from the necessity of paying the premium at the home office, as provided in his policy and as suggested in the notice. If he was not advised as to.who held the premium receipt, his duty was clear. .Every matter of which the assured was entitled to notice with reference to the payment of his premium, and of the consequences of his failure to do so, was set forth in the notice. The statement as to the ten days of grace could in no manner have misled or prejudiced the assured. At most, it amounted to a statement that if the premium was not paid within ten days after January 27, 1894, the time when it became due, the policy and all payments thereunder would become forfeited and void, except as to paid-up or surrender value. The ten days were allowed as a mere matter of grace and the insured could not have been misled, as in N. Y. L I. Co. v. Dingley, 93 Fed. Rep. 153 (35 C. C. A. 245) relied upon by the appellant. The last point made by the appellant simply casts an additional burden upon the defendant, and that was to show that the person who held the premium receipt did not receive the premium from the assured. This burden was fully met by the defendant, for it showed that Spinney did not receive payment, and that the premium receipt sent him was returned to the defendant’s home office. — 689 — Our conclusions as to the sufficiency of the notice find support in the following cases: Schuell v. Mut. Life Ins. Co. (Sup.) 65 N. Y. Supp. 889; McDougall v. Provident Co., 135 N. Y. 551 (32 N. E. Rep. 251); Trimble v. Life Ins. Co., 20 Wash. 386 (55 Pac. Rep. 429). We think the notice substantially met the requirements of the statute, and that it was sufficient. Fischer v. Life Ins. Co. (Sup.) 56 N. Y. Supp. 260, is not in point, for the reason that the affidavit in this case was supplemented by the testimony of the person who made it, to the effect that he had mailed, stamped, and properly delivered the notice. We have already referred to the only other cases cited by appellant, and find nothing therein which runs counter to our Views. There is no pretense that the insured ever paid any of the premiums save the first one. Defendant has shown the giving of the requisite notice, under the New York law, and we think has sufficiently shown the nonpayment of the premium in response thereto. True, the evidence as to nonpayment is not absolutely conclusive, but, remembering that the fact of nonpayment is more difficult to prove than payment, we think it was sufficient, especially in view of the fact that there is no affirmative claim on behalf of the plaintiff that any premiums after the first one were paid. Plaintiff is evidently relying on defendant’s inability to prove a forfeiture under the New York law, and, as defendant has shown substantial compliance with that law, and offered such prodf as was in its possession regarding nonpayment of premiums, we think it made out at least a prima facie case, and that a verdict for the plaintiff on such a showing could not have been sustained. The trial court was therefore right in directing a verdict for defendant, and the judgment is affirmed. .