FEDERAL .REl'OR'fER.
YONGl!:
v.
EQUITABLE LIFE,ASSUR. SOC.
and others.
(Olrc'f-ltt o.ourt, E, lJ. Tenne,,8ee. May 12,1887.) LIFE INSUl:{ANCE-WHEN POLICY
A policy of life iI).surance, upon due application. was issued under a con. tract with the local agent, whereb'yit was sUbstan'tially agreed that the agent' should pay first qqarter'& premium. and take the applicant's note for the same. The policy was ¢ailed frpID the home office, July 28. 1885, and ,reo ceived by the local agent, August· 5, 1885, but was ifever actually delivered into the possession of tlIeapplicant, who was taken iH'.A.ugust 6th, and died September 9. 18815, " Held that; .as between the applicant and the company, the ,policy became effective .and binding when placed in the mail, July 28,1885; an,d. If nat then, certainly when it reached the hands of the agent, August 5, :1885;
BINDIN(b-CONTRACT WITH AllENT.
In Equity. . Oreed F. Bates and Richmond &; Clark, for complainant· .De Witt &; Thornas,for respondentS. KEY,J.· On the fourteenth July, 1885, W. W. YQnge made application for insura.nce upon his life for'the benefit of bis wife, the complainant, to the defendant company. An examination of that date, by a nredical examiner of the 'company, was made, and thl;l risk was reported as a good one. The papers were forwarded from Chattanooga to Louisville, Kentucky, to of the company. These agents discoveredan error or omission in .the report of the medical examiner, and sent that paper baeI,- for coql:lction. This delayed matters for about a week, at the end of which time the papers were forwarded to the home office in New York. The action of the home office was favorable, and a policy to the general agents at Louisville, on tbe was duly executed and ·twenty-eighth day of July, 1885, and by them was mailed to the agent here, whom it reached upon the [OI;enoon ·of the fifth of August, 1885. He called at the office .of in the afternoon to deliver the policy, .but did not find him., ,Next day (6th) the agent learned that Yonge ,was not ,The day following (7th) the agent .calledat Yonge's office, and learned that he was at home sick; not seriously, as was supposed. On learning the agent's business, a friend of Yonge's.: and hisassociate in business, tendered the premium, and requested that the policy be delivered to him. The agent declined to accept the premium or surrender the policy, upon the ground that the policy did not go into effect until the first premium was paid in the life-time and good health of the applicant. Yonge's illness grew more serious, and he died upon the ninth of September,1885. This bill was filed to enforce a surrender of the policy, and to have it paid. In addition to the faets already the proof establishes the following: The agent of the company pers.istently urged Yonge to make this application, when Yonge gave as a reason for not doing so that he was afraid he would not have the money to pay the first premium; or, to put the matter in the agent's language:
YONGE 'l1. EQUITABLE LIFE ASSUR. Soo.
903
"Yonge hesitated to take a policy,because he said he could not meet the first premium. I then proposed to give him sixty days in which to meet his first quarter's premium, he to give me his note. He consented to tbis arrangement, and I made out his applicati()n, and he was immediately exa.mined by the society's medical examiner." According to the view I take of this case, it is not necessary to determine what effect the delays of the officers of the company have upon the rights of parties. The proof shows that thepolicy arrived iIi the morning,' and Yonge was taken sick in the afternoon of the same day. H it had' not been for the week's delay caused by the mistake or omission of the company's mediCal examiner, the policy would have reached the hands' 6f the applicant, no doubt, some days before' his atta<;lk of sickness. Again, it is shown that the policy was mailed in New York eight days before it reached. its destination. There is nothing in the proof which accounts for this delay. But the case is decided upon other grounds. The ageIn who took the application states: "When I take an application, and send it to the society, if the application is accepted, the policy is sent tome, and I must send.either the money due as the premium, or return the policy; and if I take'a note it is a personal matter, and the note to me. The society does no credit business, and looks to me for the)jremium." As between the applicant and the company, this contract was complete. There was left no act for the applicant to perform, so far as the company was concerned. The agent was topayor,aceount forthe premium to his principal. !twas as ifYonge had paid the money into the hands. The consideration had moved from Yonge to the company, and no act remained but the right of the home office to rejeot or accept therlsk. The execu.tion of the note was apersQnal. matter between the agent ,and the applicant, but not as agent. He,as agent, could not credit, so he states. The note was to be to him and for hiIn; The company has no right to or interest in it. May on Insurance, 64, says: ..A policy purporting to be signed, sealed,and delivered, as reqnired bythe charter, is complete and binding against the party executing it, though in fact it remain .in his possession ,unless some further particular act be required to be dOne by the other party to declare his adoptiQn of it. " Again, the same author says, (page 71 :) "ltfollows from the rule that the contract is completed when the proposals of the one: party have been accepted by the other, .by! sGmeappropriate act nifying the lWceptance; that .the place of the contra:ct is the place of, the !l.cceptance; and if an agent resident in one state, of an insurance company resident in another, forwards the reqUisite papers to the and ap!llicy is thereupon issued and mailed directly to the applicant, the contract .is a contract made in the state where the home office is situated; and since theac. ceptance is the test of completion, it would seem that a transmission by mail to the agent, to be delivered by him- to the applicant, would have thejike effect. I t , The same writer says, (page 526 :)
904
,. ';·FEDEllAL REPOllTJ;:R.
And, if the agent be authorized to l'eceivethe premium; an agreement betiween the,'applicant ,and the agent :that the latter will, be: responsible to the company fortbeamounti'and hold the applicant as his personal debtor there· fIJr,lisa,waiver of ,the stipulation futhe policy that it shaUnot :be,:binding till the premi u m is received by the company or its accredited:agent., The samB is ,if. the language of policy is that s1;lall be paid before become valid.": ",
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effective and binding 1:ork, July, the mormngof 5,1885, ,here..: " ",. ,fav()r of the t.
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GIBSON
'!1.
EAs1' TENN!J:ssEll:, V. &G'. R. Co. and another. ! ' ..
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June
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a, 1887.) : "
he it,tp, 8:nd the motb,e;r leaves the trltin, shem",y' recd\>er damages, If t1).e refusal 'be wrongful, although the conductor offer'tbjja58 11I'Il1' upon nerown btoket without the child. 1t is unreasonable in such,a cltSeto'llS]ca ' '., S.
If the conductor refuse to pass a child traveling on half-fare rate because
If therll be a rllasonable dIspute between the passengoer, and the conductor ,as to the validity of the ticket offered, and the obstinately refuse to pay the Iltdditional fare:demIUl<!ed" when able to do that,. and. insist on b.eing the the jl,lry .Ulust take that fact.in mitigatio)l of damthe conages, and dlsal'low any compensation 'for wounded feelings, ductor be'mistaken in his action.. :Hoall v. Memphi8 (I; R.' 00.,15 Fed. Rep. .57,
.ljIF DAMA?;JtS.
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follGW'llll.
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At Law. , . Mrs. Gibson purchased" at Ga., two whole and two half tickets to Tennessee, at emigrant rates. When she reached the Memphis & ChaHestot:rroad,Conduct?rRatnseyrefused to pass the boy, because he believed him' to be over 12 years old, and the mother and her party left the train at Grand Junction. They remained there three days in the when the railroad company brought them to the city on the tickets that were' rejected. No indignity or rudeness was proved, and no damages,exceptthe delay, and there was a verdict for 8100. ' John D.Mqmn, for Wm.K.P08ton, for defendant.9. .j
HAMMON'ri, J.;(01'ally.) The ejection of the boy was the Sl\me thing as the ejection of the mother, as it was unreasonable to ask her to lel\ve the child, under the circumstances,{tndproceed on her own ticket, about