Hicks v. National Life Ins., No. 70

No. 70 | 2d Cir. | Feb 27, 1894

WALLACE, Circuit JUDGE,

after stating the facts as above, delivered the opinion of the court.

We do not deem it necessary to consider the question whether the evidence respecting- the prior course of dealings between the assured and the insurer was sufficient to authorize a finding by the jury that strict performance of the condition for the payment of the premiums had been waived. We think the statutory conditions had not been fulfilled which were an indispensable preliminary to the right of the defendant to treat the policies as forfeited; and, this being so, the plaintiffs were entitled to enforce the policies, whether there had or had not been a waiver.

If any authority were needed for the proposition that a policy applied for in New York, delivered there, and the premiums paid there, is a New York contract, notwithstanding it is signed and issued by the insurer in another state, the reference is supplied by the case of Assurance Soc. v. Clements, 140 U.S. 226" court="SCOTUS" date_filed="1891-05-11" href="https://app.midpage.ai/document/equitable-life-assurance-society-v-clements-93086?utm_source=webapp" opinion_id="93086">140 U. S. 226, 11 Sup. Ct. 822. The delivery of the policies in the present case was made in New York city to an agent of the assured, and, in legal effect, was as if the assured had been personally present, and received them. Then, and not before, the policies took effect.

The policies, being New York contracts, were, of course, dominated by the statute respecting forfeitures, as completely as though the statutory conditions had been explicitly incorporated in them. The adjudications of the highest court of the state treat it as one which must be strictly interpreted 'in favor of the assured, and hold that the defense of a foi’feiture through nonpayment of premium is not availing to an insurance company, if there has been any departure on its part from the provisions of the statute in regard to notice. Carter v. Insurance Co., 110 N.Y. 15" court="NY" date_filed="1888-06-05" href="https://app.midpage.ai/document/carter-v--brooklyn-life-ins-co-3582432?utm_source=webapp" opinion_id="3582432">110 N. Y. 15, 17 N. E. 396; Phelan v. Insurance Co., 113 N.Y. 147" court="NY" date_filed="1889-03-26" href="https://app.midpage.ai/document/phelan-v-northwestern-mutual-life-insurance-3616189?utm_source=webapp" opinion_id="3616189">113 N. Y. 147, 20 N. E. 827; Baxter v. Insurance Co., 119 N.Y. 450" court="NY" date_filed="1890-02-25" href="https://app.midpage.ai/document/baxter-v-brooklyn-life-insurance-3606868?utm_source=webapp" opinion_id="3606868">119 N. Y. 450, 23 N. E. 1048; McDougall v. Assurance Soc., 135 N.Y. 551" court="NY" date_filed="1892-10-25" href="https://app.midpage.ai/document/mcdougall-v-provident-savings-life-assurance-society-3582503?utm_source=webapp" opinion_id="3582503">135 N. Y. 551, 32 N. E. 251; De Frece v. Insurance Co., 136 N.Y. 144" court="NY" date_filed="1892-11-29" href="https://app.midpage.ai/document/de-frece-v-national-life-insurance-3591171?utm_source=webapp" opinion_id="3591171">136 N. Y. 144, 32 N. E. 556. The statute declares, in substance, that no policy shall be forfeited for default in the payment of premium until a notice shall have been served by mail upon the assured, calling his attention to the day when a payment has fallen or will fall due, and to the consequences of a default. The notice must state that, unless the premium shall be paid within 30 days after the mailing of the notice, the policy will become void. The intention is obvious, from the language, that the person insured shall have 30 days within which to make payment and save forfeiture after the mailing of the notice. The policy cannot be forfeited “until the expiration of thirty days after the mailing of such notice.” The proviso authorizing an advance notice to be given is not intended to curtail the privilege of the assured, but gives the insurance company the option of serving the notice with the same effect as though served subsequently to a default; but it provides that this notice shall be served at least 30, and not more than 60, days prior to the day when the premium is payable.

The notice in the present case, having been given before the time when the premium was payable by the contract, should have been served at least 30 days prior to the 2d day of December. If, according to the meaning of the statute, the mailing of that notice upon the 2d day of November was not a notice of at least 30 days, the notice was insufficient. It has always been the rule in New York, in applying statutes in which a computation of time is to be made from the day on which -an act is to be done, to exclude the day. Thus, in Small v. Edrick, 5 Wend. 137" court="N.Y. Sup. Ct." date_filed="1830-12-09" href="https://app.midpage.ai/document/small-v-edrick-5513493?utm_source=webapp" opinion_id="5513493">5 Wend. 137, the statute was that a notice should be served “at least fourteen days before the first day of the court,” and the notice was served on the 9th day of November, the 23d day of the same month being the first day of the court; and it was held that this was a notice of only 13 days. “When the period allowed for doing an act,” says Mr. Chief Justice Bronson, “is to be reckoned from the making of the contract or the happening of any other event, the day on which the event happened may be regarded as an entirety, or a point of time, and so be excluded from the computation.” Cornell v. Moulton, 3 Denio, 16" court="N.Y. Sup. Ct." date_filed="1846-05-15" href="https://app.midpage.ai/document/coddington-v-davis-5465241?utm_source=webapp" opinion_id="5465241">3 Denio, 16. Ihe principle of computation is thus expressed in Sheets v. Selden’s Lessee, 2 Wall. 177" court="SCOTUS" date_filed="1865-02-18" href="https://app.midpage.ai/document/sheets-v-seldens-lessee-87638?utm_source=webapp" opinion_id="87638">2 Wall. 177.

“The general current of the modern authorities upon the interpretation of contracts, and also of statutes, where time is to be computed from a p;u*-ticular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period.”

Excluding, as must be done according to the authorities, the day of mailing in the computation in the present case the notice was served by the defendant 29 days, and not “at least thirty,” prior to the time when it should have been in order to effectuate tbe forfeiture. The defendant is in no better position than it would be if no notice bad been mailed.

It is insisted for the defendant in error that the trial judge should have directed a verdict for the defendant because, the policies having been pledged to Wells and by him surrendered to the defendant, the plaintiffs could not maintain an action at law for the moneys due upon them. There is no merit in this position. Upon the tender to Wells of the amount due him upon the loan for which he held the policies as collateral his. title was extinguished and immediately vested in the plaintiffs, and he would have been liable for the value of the policies in an action of conversion. The defendant acquired no better rights by obtaining a surrender from him, with knowledge of the facts, than he himself had. Talty v. Trust Co., 93 U.S. 321" court="SCOTUS" date_filed="1876-11-27" href="https://app.midpage.ai/document/talty-v-freedmans-savings--trust-co-89381?utm_source=webapp" opinion_id="89381">93 U. S. 321. The judgment is reversed.