58 P. 180 | Cal. | 1900
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *533
Action on an insurance policy. The defendant is a New York corporation. A nonsuit was granted in the court below, and judgment went for defendant, from which, and from an order denying a new trial, plaintiff appeals. The motion for a nonsuit was upon these grounds: 1. That it does not appear that any premiums were paid after the first annual premium; 2. That it appears affirmatively that no such premiums were ever tendered; and 3. That the action is barred by the statute of limitations of this state, and particularly by subdivision 1 of section
The appeal was first heard in Department, and the judgment was there affirmed, on the ground that the action was barred by subdivision 1 of section
After full consideration of the question, we are of the opinion that the act of 1872 does not prevent respondent from availing itself of the statute of limitations. Waiving the question whether the subject of the act is expressed in the title, it must be construed in connection with other legislation on the subject of foreign insurance corporations. The act refers to foreign corporations generally, and provides that every such corporation doing business in this state must "designate some person residing in the county in which the principal place of business of such corporation is, upon whom process issued by authority of or under any law of this state may be served," and "shall file such designation in the office of the secretary of state." Section 2 provides that a corporation failing to comply with the act shall be denied the benefit of the *537
statute of limitations. The Political Code, from section 594 to section 634, inclusive, deals specifically with insurance corporations, both domestic and foreign, and prescribes conditions upon which the latter may do business in this state, and particularly provides in great detail how foreign insurance corporations must put themselves in position to be served with process in this state, by appointing agents, entering into certain contracts, etc. Section 616 contains an elaborate scheme on the subject. Its main provisions are that a foreign insurance corporation, as conditions precedent to doing business in this state, must file in the office of the insurance commissioner the name of an agent and his place of residence in this state, upon whom process may be served; that process so served gives jurisdiction of the corporation; that "the agent so appointed and designated" shall be deemed a general agent, and "must be the principal agent or chief manager of the business of such corporation or company in this state." It is also further provided that the foreign insurance corporation must make and file with the commissioner an agreement or stipulation in writing, which is set forth in detail with the form of the agreement given, by which it is stipulated, in substance, that if at any time the corporation shall be without an agent on whom process may be served, service thereof may be made on the insurance commissioner, who must within a certain time transmit to the corporation a copy of the process. When this section was first enacted it merely provided generally that the name of the agent should be filed with the insurance commissioner; all the other parts of the section were added by amendment in 1878, several years after the date of said act of 1872. These various enactments are all statutes in pari materia — all being on the subject of the appointment by foreign corporations of an agent resident here upon whose process may be served; they must therefore be construed together, and the intention of the legislature on the subject must be gathered by consideration of them all. This rule is well established. In Frandzen v. SanDiego,
Section 595 of the Political Code provides that the insurance commissioner must issue a certificate of authority to transact business in this state to any persons who are solvent, not in arrears of taxes, etc., and "who have fully complied with the laws of this state." In the case at bar, the plaintiff herself introduced without objection such a certificate issued by the insurance commissioner in 1888 to respondent. In that document the commissioner, after reciting that respondent had "in all respects fully complied with the laws of California regulating and governing the transaction of insurance business in this state," and had "appointed and commissioned William H. Dunphy of the city and county of San Francisco as his attorney and agent in this state, as required by section 616 of the Political Code of this state," certifies, "by virtue of the authority conferred upon me by section 595 of said code," that "said Home Life Insurance Company and its agent are duly authorized to transact the business of life insurance in this state." This certificate was sufficient prima facie evidence of the compliance by respondent with the provisions of the code above mentioned. *540
The respondent having accepted the invitation of the state to do business here on the conditions imposed by our laws, and having submitted itself to the jurisdiction of our courts and expressly provided the means by which it might be served with process here, and the state having granted its permission to do business here on these conditions, it is within the state for all purposes of suit with respect to matters growing out of such business, and it has all the ordinary rights of litigants here, including the right to rely on the statute of limitations — that right not having been by law denied it. It was so held inLawrence v. Ballou,
The judgment and order appealed from are affirmed.
Temple, J., Garoutte, J., Van Dyke, J., Harrison, J., and Henshaw, J., concurred.
The following is the opinion rendered in Department Two, August 14, 1899, approved and adopted in the foregoing decision of the court in Bank:
Addendum
February 20, 1888, plaintiff's intestate applied through Conway, an agent of defendant in San Francisco, for a policy of life insurance upon his life for ten thousand dollars. The medical examination was had and the risk accepted. Hope gave his note, payable to the order of Dunphy, the general agent at San Francisco, for the amount of the first premium, and received from the agent a conditional receipt. Dunphy testified: "He gave his note, and it was to show that a settlement was made at the time the application was made. We call it a conditional or binding receipt."
The receipt provided that in the event of the acceptance of the application the policy should be in force from the date of the acceptance. The application and note were placed with the general agent at San Francisco, who forwarded them to the home office at New York for its approval and acceptance. The amount of the note was charged to Conway, the soliciting agent, and was actually paid to the company by him about one year thereafter. Whether Hope paid is left as a matter of inference and presumption.
A policy was issued at the New York office, which alone had authority to accept and issue policies, on the eighth day *542 of March, 1888, was sent to the San Francisco agency and received there March 12, 1888. Some time during the same month, and before Conway had actually paid the amount of the first premium to the company, the policy was handed to Hope, or to his father in law for him.
It must be held that the first annual premium was paid by the promissory note, and that the delivery of the policy is evidence that payment in actual cash was waived, if it can justly be said that such payment is made a condition precedent to the delivery of the policy.
Apparently, Hope paid no further attention to the insurance, and died September 22, 1891, delinquent for three annual premiums. This action was commenced August 21, 1895.
The defendant, among other defenses, denied the issuance of a paid policy; avers that the first premium was not paid before the delivery of the policy, and, therefore, by the terms of the policy defendant is not liable thereon; also that the policy lapsed by the failure of deceased to pay the annual premiums, and pleads the statute of limitations.
At the trial a nonsuit was granted, and a motion for a new trial was made by the plaintiff, which was denied. The appeal is from that order and from the judgment.
Motion for nonsuit was based upon three grounds: 1. It does not appear that any premium except the first was paid; 2. It was proven that no premium except the first was ever tendered; and 3. The action is barred by subdivision 1 of section
It is averred in the complaint that the second premium had not been paid, and it is not contended that any part of any premium had been tendered. In fact, Hope paid no attention to it after its issuance.
The insurance company is located in the state of New York, and it is agreed that the policy is a contract which was to be performed in that state. By a statute of that state, then and now in force, it was provided: "No life insurance company doing business in the state of New York shall have power to declare forfeited or lapsed any policy hereinafter issued or renewed by reason of nonpayment of any annual premium or interest, or any portion thereof, except as hereafter *543
provided." It is then provided that written notice shall be mailed to the assured and no forfeiture declared until thirty days thereafter. The policy contains an express waiver of this notice. In Griffith v. New York Life etc. Ins. Co.,
It is averred in the complaint, and not denied in the answer, that no statutory notice was ever mailed to Hope. It is held by the court of appeals in New York (De Frese v. National Life Ins.Co.,
The suit was not commenced for more than three years after the death of Hope, but was commenced in less than four years. An action upon a contract, obligation, or liability founded upon an instrument in writing executed in this state is barred in four years (Code Civ. Proc., sec.
The question of locality depends upon the further inquiry as to when the contract became in force. The defendant contends that it was in force as soon as the risk was accepted by the company and the policy was issued and sent from its office to its local agent for Hope. The plaintiff claims that the policy was not in force until it was handed to Hope by the local agent. This last contention is based, in part, at least, upon the fact that Hope had not paid the first premium in cash, and they argue that such payment was expressly made a condition to the taking effect of the policy. Appellant relies *544
for authority upon this point upon Griffith v. New York Life etc.Ins. Co., supra, and Jurgens v. Life Ins. Co.,
In the policies considered in those cases it was expressly stipulated that the policy should not be in force until actual payment of the premium to the company during the lifetime and good health of the insured. There is no equivalent stipulation in the policy involved here. There was no provision that it should not be in force until the payments were made. There is no express requirement that the premiums shall be paid in money, nor were the agents restricted, as in those cases, by the express direction that they should receive only cash in payment. Still, in each of those cases it was held that the agent could waive the requirement as to cash payments, and that he did so by an unconditional delivery of the policy. Another difference between the Griffith case and this is that there the policy was issued and sent with express instructions not to deliver it until the money was paid by the insured and he was found to be in good health. There was nothing of the kind in this case.
The only mention of cash payments in this case is an indorsement upon the policy, which is signed by no one and presumably not known to the insured prior to his receipt of the policy.
In his application he was made to covenant that the policy should not bind the company "until the premium thereon shall have been received by said company in the lifetime of the assured, and that it shall not continue in force in case of default of payment of any note or notes which may be given in part payment of the premium thereon." Instead of prohibiting payment by note, this was a plain intimation that notes might be accepted in payment.
The application made by Hope was reported to the general agent at San Francsco, who was also present when the note was given. He testified: "He gave his note, and it was to show the company that a settlement was made at the time the application was made. We call it a conditional binding receipt." He said, further, that the receipt showed the amount of premium paid for the amount of insurance applied for, and stated that the insurance would be in force "from the date when the application was accepted from the company." *545
In the policy it is recited: "In consideration of the representations and agreements contained in the application therefor, and the sum of two hundred eighty-three dollars and sixty cents, to be paid on or before the delivery of this policy," etc. Among the covenants in regard to forfeiture is one to the effect that if the statements contained in the application shall be found to be untrue, "or in case the said John T. Hope shall not actually pay the first premium as aforesaid, before the delivery of this policy, and while the said John T. Hope is in good health"; or shall not pay subsequent annual premiums, or shall engage in certain specified extrahazardous employment; "or shall die in consequence of a duel, or of the violation of law — then, and in every such case, the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease, and be null, void, and of no effect."
Of course, a covenant for a forfeiture implies that the policy is in force, and must do so here, notwithstanding the use of the word "delivery"; and, besides, this contains no provision forbidding payments being made by note.
Finally, the attesting clause is as follows: "In witness whereof, the Home Life Insurance Company has, by its president and secretary, signed and delivered this contract at the city of New York, in the state of New York, this eighth day of March, 1888."
We may conclude that there was no rule of the company, condition in the policy, or in the application for it, nor any instruction to the agents, which prohibited payments by notes, of which rendered the policy inoperative until payment in money was made or duly waived. There is, therefore, no force in the argument that the delivery must have been in California because the contract could not be in force until such condition was waived by an unconditional delivery to Hope.
The question then is, whether the policy was in force so soon as issued and sent from the home office to the agent in San Francisco for Hope. There was no stipulated condition as to the delivery except that the first premium should be first paid while he was in health. That had been paid by his note, for which he received a conditional receipt. The condition *546 was that the risk should be accepted, and would have been the same had the premium been paid in cash; it was a payment if the risk was accepted; otherwise not, and it was provided that the policy should be in force as soon as the application was accepted by the issuance of a policy. Could the company after the policy had been sent have then refused to deliver? The test is to suppose Hope had paid in cash, that he had been guilty of no misrepresentation, and had died while it was in transitu. There being no condition requiring an actual tradition of the instrument to him while alive and in good health, such as may be found in some cases, I think the company would have been liable.
Our statute makes the rule of delivery as to written instruments the same as in regard to grants (Civ. Code, sec.
It is, therefore, a matter solely of intention. If it was intended that document should be in force before it was actually handed over, it will be deemed constructively delivered. Of course, the agent could not complete the contract of insurance, but he could, provisionally, contract, subject to the approval of the principal, whose ratification would make the contract binding as made.
The corporation, by its attesting clause, declared that the instrument was delivered in New York on the 8th of March. By itself this formal clause means but little. But the understanding was that it was then to be in force, and it was sent to the local agent for delivery without condition. No act was to be done, no fact determined, before delivery. Under such instructions, supposing everything had been properly done, and all was fair and honest, had Hope died during the transmission, his beneficiaries could have enforced the policy; and, that being so, its execution was complete when it left the New York office. *547
And such, I think, are all the authorities. In Bliss on Life Insurance, section 150, it is said: "If the company so far accepts the application as to prepare and forward a policy to its agent for delivery, and if payment of the premium has been made, or if such payment is not a condition of the policy's taking effect, or, being a condition, is waived, the contract is then complete, and the company cannot revoke its acceptance, though the policy had not been delivered."
To the same effect is 1 May on Insurance, 97; 1 Beach on Insurance, sec. 482; Richards on Insurance, 54; Elliott on Insurance, sec. 14; 1 Wood on Insurance, 49; Ford v. Buckeye etc.Ins. Co., 6 Bush, 133; 99 Am. Dec. 671, note.
The matter is elaborately considered in Yonge v. EquitableLife. Assur, Co., 30 Fed. Rep. 902; also in Hallock v. CommercialIns. Co.,
Regarding, therefore, the expressed intention of the parties, and the law as declared in the authorities, the policy was in force when it was transmitted from New York, and is an instrument executed out of this state.
But the appellant argues that, conceding that section
No proof having been made, we must assume that no notice of proof was made until immediately before the action was commenced. The only statement in the policy upon the subject is the covenant to pay the legal representatives of John T. Hope, after due notice and satisfactory proof of death and interest, in accordance with the terms of the contract. It is not provided, as in Case v. Sun Ins. Co.,
But, in any event, the demand, notice, and proof should be made within the period of limitations, or the demand is stale and suit cannot be maintained thereon. (Meherin v. San Francisco etc.Exp.,
In Palmer v. Palmer,
The order and judgment are affirmed.
Henshaw, J., and McFarland, J., concurred.