INDEllNlTY 00··· DEBBY.
xqlne in, order to adjl!ldi<:ate the oWIlerahip of the logs; The judgment of the court below i/l,tht;lrefore reversed, and the cause ja l'eOUlnded with ,iDstrnctions to srant;a'new
Oop,'rtof AppeaZl, Eighth. ·Otrautt. May 18,;1899.)
L ..dR.I'Bi'lhWfCllf-CoN'PLIC'l' 0., LAW8-'-Loo1Jl 0.. Co'BTBAC'l'.
, Rev. Btdio.S 5.i}82'. Ilroviding thllt, "in all suits upon policies of insurance on life i8fjued, "it shall be no defense tbat the blsured committed suicide, unless suicide in aI1Plyin8" lor policy, any stipulation in the policy to the OoJitrary notwitbstanding, applies to aU life insurances, whether issued by 88ses!!fllent or premiwncompanies, otherWise provided by statute. .. B.urE-RlIi:rau. OJ' ACT. ,.' . ' Aots Mo.l88T, regulating assessment life. insurance companies, is 10); to companies" doing business under thiS act, " and further provides" tliai nothing herein contained shall subject any OOl'foz;,tion doing busill;ess under thisaot tc a'llyother'provisions or requirements * except as herem set forth." Held, that an 'assessment company whioh has not'complied with the requirements of the act Q8nno,tbehea!d section 10 repealed,80 far as applicable 110 assessment compames, the provision of Rev. St. Mo. I 5982, annulling stipulations against payment of insurance in case of swcide. No force can be given an argument that assessment insurance was Dot within the contemplation of the legislature at the time of tbe enactment of Rev. St. Mo. S 6982, in the absence of facts "hoWing that business on that plan was 110t carried on at that time in the state. .
I. B.urB-AstBsshNT AND bllQJ'iT SoOIIITIES. An ,aBfessment "life indemnity company," having no lodges. or social, charitable, benevolent, or literary features, and neither paying sick dues, nor giving other at, tention to;members in distreBf or poverty, is a life insuranoe company, all4 iIIlubject to the.rilgulationa imJ?086d by the insurance laws, as distingUished from the laws relating to co-operatlve benevolent societies, although its insurance is COJl,fined in practice, but not by itilCharter, to members of the Masonic fraternity. Rep, 489, aftirmed.
A poliRY .of insurance, ,4oesnot become a binding oontraot until Its delivery, IS governed by the laws olthe state in which the insured Uves,. to whom it was'there delivered by a l'tlsideilt agent of the company, although it was exeouted and (latedat the company's in another ltate. '
In Error to the Circuit Court of the United States for the Western Dismct of Missouri. Action by William Berry and others against Knights Tetnplar & MaIOns' Life Indemnity Company. Trial to the court. Judgment for plaintiffs. Defendant brings error. Affirmed. Samuel P. H'U8lUn and Th0rna8H. Pa'1'1'ish, for plaintiff in error. F. H. Bacon, GeorgeHall,snd E. M. Harbe:r, for defendants in error. Before SANBORN, Circuit Judge, and SRmAS, .District Judge.
SHIRAS, District Judge. 'On the 6th day of July, 1885, the Knights Templar & M:Ssons' Life Indemnity Company issued a policy ofinsurance upon thelife·of John B. Berry, wherein it was provided that upon due
J'EDERAIJ ltSPORTER, vol.
satisfactory of: the death . of said ' Berry ,the. compltny 60 days after receipt of such proof, totha chili:1ren Berry, the sum of $5,000, subject to the limitation contained in setltion 1, art. 7, of the constitution of the corporation. On the 7th day of No. vember, 1889, the said John B.Berry <:oIllmitted suicide, and due notice and proof of his death were given to the company. The company refused to pay the full amount named in the policy, claiming that by thepol:icy self-destruction by the insured, the whether sane or insane, rendered the contract for the payment of $5,000 void, and ,the,oompany was only bound to pay the amount which had been paid in assessments by the insured. This action was brought in the circuit court for the weste,rn '. district of Missouri, to recover the full sum . The case to the cou'rt, a jury being waived. that the eop:jpany was liable for the full amount The claimed by the plaintiffs, unle88 excused by the clause in the policy providing that the same should 1;>e void in case of suiCIde; ,that the policy sued QD was.issued at the· office of the company at Chicago, Ill., was sent to the of the company at. 'trenton, Mo., and was by him delivered ,td/ahn B. Berry at that place.; The court further found that the of the defendant company is that of life insurance, and nothiJ;lgeme;'that there 'is no social, charitable, benevolent, or literary feature in its organization, or in the of its that it has no lodges"paysllQ ,sick, dues,distributes no aid, and gives no attention to members hI distress poverty. As conclusions of lll.w the court held that the defendant company "is not a cocoperative benevolent society, nor a fraternal brotherhood having a community interest, but an incor· porated life insurarice'cOwpany on th,eco-operative .OJ; assessment plan, not for mutual benevolence, but for mutual insurance, and as such it comes within the purview of the statutes of to life illsgra,nceco,mp,al;1ies." That the contract of insurance was made in the state of Missouri , andistherefore contrdlled by the 'provisions of section 5982 of;tti:e .RevisedJ3tatutes of Missouri, which areas follows: "In all Buits UpOll policies on lifellra;reafter iSsued by any companY' doing ott'siness in this state, it shall be nodefens.e that the assured committed suicide, unless it shall be shown to the satisfaction of the court or jury triYing the CRUSe that the aasured 'contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall.be void;" and that the fact of suicide would not defeat the right of recovery. For the findings of fact and law at length, see 46 Fed. Rep. 439. Judgment in favor of plaintiffs having been entered for the full aowunt of the policy, the case was brought to this court upon ,writ of errol'; and, as stated in the brief of counsel for the company, "the sale qv.estion involved is whether the Missouri statute in reference to suicide makes the contract in reference to suicide void." On behalf of the plaintiff in error itisaverred "that upon the facts found andth/;'l pleadings in the case the contract was made and to be executed i.ntilestate of Illinois, and is to be construed by the laws of that state." It appears from the findings of fact that the company is a corporation
KNIGHTS TEMPLAR& MASONS'
created under the laws of Illinois; that it was engaged in soliciting business in Missouri, having agents in the latter state for that purpose;: that by the express terms of section 1, art. 4, of the charter of the company, the contract of insurance does not become binding until the delivery thereof to the insured, and that the policy sued on in this case was delivered by the agent of the company toBerry at Trenton, Mo., at which place the application for the issuance of the policy had been made and delivered to the agent of the 'company. Under these circumstances, it cannot be successfully maintained that the contract was made in Illinois. In its inception and completion it was made in Missouri, and is therefore to be construed in connection with the provisions of the statutes of that state. The facts of this case bring it clearly within the ruling oithe supreme court in Assurunce Soc. v. Clements,140 U. S. 226, 11 Sup. Ct. Rep. 822, in which it is held that a policy issued in New York by a corporation of that state upon the life ofa resident of Missouri, it being provided in the applic.ation that the contract should not take effect until actual payment of the first premium, did not become a completed contract until the payment of the premium and the delivery of the policy; and that, as these acts were done in Missouri, the policy must be deemed to be a Missouri contract, and to be governed by the laws of that state. When, therefore, the policy sued on in the present cause was issued and delivered to John B. Berry in Missouri, the clause found therein touching liability for death by suicide was nugatory under the provisions of the statutes of Missouri then in force, provided the policy or contract of insurance is of such a nature as to be subject to the section of the statute in question. It is contended on behalf of the company that the section of the' statute is not applicable, "because insurance upon the assessment plan W'ltS not within the contemplation of the legislature at the time the suicide clause was enacted;" the argument being that as the issuance of contracts' of insurance on the assessment plan had not been entered upon when section 5982 was originally enacted, and as there was not a general statute then'iI) force in Missouri, authorizing companies to carryon this particular kind of insurance, it must be held that this section is applicable only to policies of insurance issued by what are termed the "oldlinecompanies." 'l'he section in question was intended to establish a general rule applicable to the business of life insurance, and not merely to limit the powers of a particular of companies. By its terms it is applicable to all policies of insurance on life, and is not confined to any particular kind of company. Any company engaged in Missouri in the business of life insurance is subject to the provisions of the spction, unless it appears that such company is by other sections of the statutes or laws exempt from the operation of the general statute. company, according to the findings of the trial court, The is not a benevolent or fraternal society, but is purely a life insurance company, carrying on business on what is known as the "assessment plan." The sole business of the corporation being that of life insurance, it, cannot avail itself of provisions of the Missouri statutes applicable to associations organized for benevolent, social, or fraternal purposes. v.50E.no.7-33
nothing inthenfiuding$ .'offaet from whichitcan be inferred thlil of life Ji:JIlsurande. upon the assessment, plan may not, in.ofact,bav:e: beenin,existentle jn Mis&ouri when section 5982 was first and therefore, 'n6,follCe\can be given to 4rgument that in.. sumance on ,that. ,plan, the· contemp.lation :ofthe legislatuie:in It thus, appears, that on, the 6th: day of July,1885, it'fas tha:law of Misspud that no cornplJ,ny gaged' solely in the business 'Of such state eOl:\ld itself:!futIm liabilityior,dsath, by suicide,· unless, it appeared that the in.. snred! c6nternplatedanicidewhenhe made application fotauob insur. ance;and j 8B:the oQtlnpariy was engagedi'solely in the business oflife,irisuranee,,' it policy'issued by it on the day was:so issued :subject to the prQ-o force. . .,. . ;··Upon the assumption,tha.tt the· act passed by the llilgislature of Mig., sd1:Lri in 1887 supersedes,aDd .repeals all provisions: of the general anne lawstheretofol'e.applioable to opera.ting,upon the assesS; merit·plan, oounselforthe,plamtift' in ertot'"btlN6.made avery able iniluppol't, of '. the proposition that of the tion.ofthe act,of:1887 t,heIpro"1iflions of section 5982 were repealed as t018ssessment,companies;c.anfl:that the :rightsofthe parties are now to be ,detel'lilined iby thete.nlfis:of the policy ,sued,on, ,theSalDe as though the suicidedause oftbe :M,i1¥lquri statutehadn.eveli'been enacted. We do .hot;deem it necessarytd,oeteppine the question whether this provision of the Missouristatutl'ds to-:oe deemed to be within the rule stated in BweU v. Daggs, 10&:0(,,6,:14:3,:2 iSup.Ot.. Rep. 408, to the effect that whenthe:right toaMoida;given to a party thereto by! statutory enactment" on,sbmeground of public ,policy, there. being nethingin' the lcontractmc:ila, in se, ,$uch right ofavoidance being merely a.wivilege belonging and not being 'an element in the oontraet bya subseq.uent repealing sta.tute, be takE\n.away, and the right8'.Of the. parties be thus left subject to the provisions of the clflntractbythem entered'into, or whether, the provision of the Missouri statute :preventing: the company frornexem pting itself frorn liability for death by su.icide,: in force ..when the policy was issMd, did not become part of the contract of. insiualioelunder the genero;l' rule that the law of the place irbere acont:ractisentered into and ·is to. be performed comes part contr,a;atdtselft,m which event subsequent legislation by the>state eOllld.noMake;awarrrights acquired ,under the policy when arise, ikmust be made clear it·was issued.)i<Before· this, jntended to. repeal, br. the act of 1887, thatthe!legislature the provisions /:li, Bection:5982 in,'its application previously issued by;oompaniesdoing:business on the.asl'\E!sBment, plan, and, in our judgment,.:theintfnt in this particula,ris not made plain;" !Iln th eurst: rthe. legislature; of. Missouri hlj.lil, not re.. pealed [email protected]
the awlitation.for insurance is made. The contentibrior; the plaititiff in el'l'o.ris:thatthe enactinent of 'the act of 1887, regulating the mode of'doingbusi'dess on theasses!ltnent plan; and pa.'rticularly the last clause ,of section: 10 of the act, to wit, 11 that contained sho:!l subject any corporation doing business under this Itct to any other provisions or requirements of the general insurance laws of this state, exeept as distinctly herein set forth," takes the defendant company out from under the binding effect ofl!section 5982; It is, however, noi made to appearin l any way that the defendant company has ever complied with the provisions of the act of 1887, ·or that it isdqingbnsiness in Missouri under the liabilities imposed by that act, and therefore it does not appear that it is';entitled to the benefits of the last clause of section 10, which areexpresaly limited to "corporations doing business under this, act, "-that is, the act of 1887. The purpose of the act' is made still more clear in this regard by section 13 of the act, whichdein this act shall be so construed as to impair or in any manner interfere with any of the rights or privileges of any corporation, association, or organization doing life or casualty insurance business in this state under the laws as they now exist." In our judgment, therefore, the provisions of the actM 1887 cannot be made applicable to this case. Thecontl'act of insurance upon the:1ife of John B. Berry was made long before the enactment of that statute. It does not appear that £he company has ever complied with, the requirements of that act, or half ever transacted business under its provisions, and it cannot be made the criterion for determining the rights of the parties to this action. In ourjudgment, the court below'ruled correctly in holding that the policy sued on was a contmct made in Missouri, and, as such, that the provisions of section 5982 are applicable thereto; and therefore the judgment' is affirmed, at costs of plaintiff in .error.
RUSSELL fl. BRADLEY.
(Cwouit Oourt, B. D. NtIfD Yorl:. MaY 28, 1892.)
MALIOfOtrll PROSECUTION-PUNITORY DAMAGES"';P.ROVINCB OJ' JURY.
In I'D action for maHci(lUB prosecution,the amount of punitory damages Is pecul. iarly a matter for the jury; and a verdict tor the Bum of $12,500 will not be set aside 011 remitted in part, in the absence of, prejudice, perversensss, or corruption, it was larger than it should have \leen. merely because the judge
At Law. Action by Mary E. Russell against James A. Bradley for malicious prosecution. There was a verdict for plaintiff, and defendant moved for a new trial on the ground of excessive damages. Motion qenied. Thaddeus B. Wakeman, for plaintiff. Chauncey Shaffer, for defendant.