. ' FEDERAL BEPOR-xER,
MUTUAL RESERVE FUND LIFE ABs'N.
(OireuiLOo'M'1't, E. D. Mil/souri, ,E. D. June 18, 1889.)
Mere inaction on the part of a life insurance company for a period of SO or 85 days after itrece'ives information that the habits of the assured are at variance with the. representations made by him to secure the policy does not amount to a waiver.olthe forfeiture.
REPRESENTATIONS......WAIVER BY INACTION.
At Law. " On motion to set aside verdict, and for new trial. .,Action by Giovanni B. Adreveno against the MutualR,eserve Fund Life Association to recover; on a policy of life insurance., There was a. vprdict for plaintiff, And the presentmotion is to set it For opinion onadmissil::1ility see 34 Fed. Rep. 870. OoUins JarrvUJon, for plaintiff. . W. e. a.Jones, for defendant, cited: Foot v. Insu1'ance 00.,61 N. Y. 571: May, Ins. §§ 497, 502; [nsuranae 00. v. Stevenson, (Ky.), 8 Ins. Law J. 922: Carr v. Railway 00., L. R. 10 C. P.' 307: Insurance Co.v. Raddin, 7 Sup. Ct. Rep. 500; Morrison v. Insurance 00., 59 Wis. 163. IBN. W.Rep. 13; Schwarzbach v. Prptective Union. 25 W. Va. 666: Bevin v. Insurance 00., 23 Conn. 249: Frost v. Insurance 00.. 5 Denio, 154: Insurance 00. v. Wolff, 95 U. S. 326: Hayward v. Insurance 00., 52 Mo. 195: Reid Insurance Co., 58 Mo. 429: Bank v. Armstrong, 92 Mo. 2B1, 4 S. W. Rer. 720; Sheehy v. Railway Co·· 94 Mo. 580, '1 S. W. Rep. 579. 'THAYER, J. I have no doubt that the verdict In this case was against the weight of evidence, and ought to be set aside on that ground. The case has been held under advisement, however, to consider the further question whether under the evidence adduced at the trial the case ought to have gone to the jury. That question, in my opinion, must be answered in the negative. Adreveno made false representations as to his habits of life to secure the·policy. That fact was confessed,and the policy for that reason was voidable at the election·oithe company. Information reached the company, after it delivered the policy, that Adreveno was a drunkard. This information was at variance both with the representations made by the assured as well as with the certificate of the medical examiner, who certified that Adreveno appeared to be a "firstclass risk." Undoubtedly the information came fmm such an authentic source that it was the company's duty to have taken steps to ascertain the truth or falsity of the report. I think, howc:lver, that reasonable diligence only was required in making such investigation; and it appears to me, considering al1the circumstances of the case, that the evidence did not disclose any 'such delay in making or setting on foot such an investigation as would warrant a jury in finding from the company's inaction ,that itelected to continue the risk whether Adreveno had been theretofore temperate or intemperate. Adreveno died of" alcoholism," within two months after the policy was delivered. The informaI
WELLES 'V. STOUT.
tion that he,had been and ,was an intemperate"man: came to that officer of the company whose duty it was to investigate the report not over 30 or 35 days before the death of the aS8ured. It was not his duty to neglect other business and give his undivided attention to the investigation of the matter 80 brought to his notice. All that could be expected or required of the company was that it should investigate the report in the due course of its business, and make its election to continue or cancel the risk when the truth was ascertained. The evidence showed. I think, that the company pursued the ,usual course adopted with reference to such reports, and acted with ordinary diligence. Another fact to be noted is, that no assessments were levieQ. on the policy between the date of itsdf:llivery and the assured's death. If it had levied assessments on the policy after the receipt of information that the policy was perhaps voidable, thejury might have been authorized to infer that the company had elected to continue the risk, notwithstanding the false representa-. tions of the assured. The case is barren of any elements of estoppel. During the two months thali elapsed between the issuance of. the policy an4 the a,ssured's death, the company did no act calculated to mil:llead him. ,The case, so far as thepl""intUiis concerned, rests wholly on the fact of the company's inaction for a period of 30 or 35 days after itw8s informed that tbe assured was a man of bad habits; and that fact alone, in my judgment, is not sufficient to warrant a jury in, finding that it waived the forfeiture. The motion for new trial is sustained.
WELLES '17. STOW.
(Oifocuit Gowrt. No D. IO'UJa, E. D. May 27,1889.,
NATIONAT., BANKS- INSOLVENCY-SlliT-OFF.
In an action by the receiver of an insolvent national bank to ,recover of a stockholder an assessment on his shares, the defendant alleged as a counterclaim that the comptroller of the currency had directed the bank to restore the value of certain securities held by it which had beell reported worthless by an examiner; that certain of the stockholders, including defendant, had raised a fund, which was placed in the hands of trustees, to apply"so much as might be from time to time required by the comptroller to retIre BUch securities; that the fund Was deposited with the bauk, with full notlQe of the purpose to which it was to be applied;' that a portion had been used to retire the securities designated, and that when the bank failed, the balance "of the fund came into the hands of the receiver, and was no,w claimed by him; as a part of the ordinary assets oftI;le bank; that a certain portion of this balance belonged to defendant. which amount he asked to set off against plaintiff's demand. Hela, th,at &,general demurrer, based on the ground that no set-off or Will! avan&b,le in such an action, would, be, overruled. as the claim could be set off if it was of..such a nature ,that the holder would be entitled to reeeive the full amount bef-o're distribution by the receiver to general , ," , creditors. ,
At Law. On demurrer to answer arid counter-claim. William Gra,haun, ,for Henderson, Hurd» Daniels & Kiesel and F. O'Donnell, for defendant.