106 F. 637 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1901
From the statement of claim it appears that this suit has been brought to recover §8,267.96, with interest thereon from August 16, 1900, upon two causes of action, which are
“Yet the defendant has not performed its covenants, in this: that, although often requested, it did not, within ninety days after the receipt of satisfactory evidence of the death of said William W. Lamb, or at any time, pay to the plaintiff the sum of $8,207.90, or any part thereof.”
The first of the plaintiff’s counts is based upon certificate Ho. 15,-975, and rests upon its averment that when William W. Lamb died that certificate was “in full force and effect.” This the defendant: denies, and in support of that denial the affidavits filed on its behalf i which traverse the charges of fraud, concealment, etc.) set forth that all the agreements between the parties were reduced to writing, and that policy Ho. 385,328 was issued in substitution for certificate Ho. 15.975; and it is argued that it thus appears, and for the present purpose conclusively, that the only contract of insurance between the defendant and William W. Lamb which was in force at the time of his death is policy Ho. 385,328. It is conceded that upon this policy there is due the principal sum of §3,267.90, but plaintiff claims judgment for $5,000, with interest; that being the amount of the original certificate, Ho. 15,975, which her learned counsel insists “was still in force, for the following reasons: (1) Want of power authorizing a change without plaintiff’s consent; (2) the substitution was not perfected; (3) the refusal to issue additional insurance, applied for Jan nary 17, 1900, worked a rescission of the agreement for substitution; (1) want of consideration for the substitution if the issuance of the additional policy was not contracted by the assured and defendant.”
“The defendant is an association incorporated under the laws of the state of New Turk, transacting business of life insurance upon the co-operative or assessment plan, as defined in said laws. By the statute of said state (chapter 175, § 18, of the Laws of 1883) in force when the original certificate of membership, No. 15,975, was issued to William W. Lamb,' husband of the plaintiff, it is provided as follows: ‘Membership in any such corporation, association or society shall give to any member thereof the right at any time, with the consent of such corporation, association or society, to make a change in his payee or payees or beneficiary or beneficiaries without requiring the consent of such payee or beneficiary.’ The defendant is advised by counsel, and therefore avers, that by virtue of said provision the plaintiff had no vested right in said certificate of membership, but that the said William W. Lamb in his lifetime could, without her consent, make any contract with regard to said certificate of membership which might seem to him fit, with the consent of the defendant.”
I am of the opinion that the exclusive control over the contract of insurance given to the insured by the statutory provision set out in the foregoing statement makes impossible the existence of a permanent or vested interest in the beneficiary during the lifetime of the insured. Hopkins v. Assurance Co., 40 C. C. A. 1, 99 Fed. 199-202.
I cannot sustain the plaintiff’s second point. The decision in Assurance Co. v. McElroy, 28 C. C. A. 365, 83 Fed. 631, upon which she relies, lends it no support. Not only does the affidavit allege that it was agreed that certificate No. 15,975 would be surrendered, but also that it was in fact surrendered. It states that:
“Defendant accepted said application of the said- William W. Lamb [for the substituted policy], and, upon the delivery of said certificate No. 15,975 [the original one] and of said application to the defendant, it issued to said William W. Lamb, in substitution therefor, its certificate No. 385,328.”
It must therefore be now assumed that the defendant issued the new policy in substitution for the old one, and in pursuance and consummation of an agreement that this should be done, which had already been so far executed that the old policy had been actually surrendered. Under these circumstances, I do not regard it as of any importance that the new policy was delivered by mail, and without exacting payment of premium, notwithstanding its provision “that it shall not take effect until delivery in person and payment in cash while policy 15,975 is in full force.” This provision was inserted for the defendant’s benefit, and it was not bound to insist upon it; It waived it by delivering the policy as it did; and certainly then, if not when the agreement and surrender were made, the old policy ceased to be a living one.
Point 3 of the plaintiff’s brief assumes the existence of a contract which obliged the defendant to deliver the additional insurance therein referred to; but this is explicitly denied by the affidavits, and the effect of this denial is twofold: It makes this point unavailing as to
There is no foundation for the fourth proposition. The contention that, unless an additional original policy was contracted for, there was no consideration for the substitution of policy No. 385,328 for policy No. 15,975, is disposed of by the fact: that the writing itself, which the affidavits allege embodied the whole agreement, expressly recites that the surrender of the old policy was made in consideration of the issuance of a new one (No. 385,328) upon different terms; and that this expressed consideration was a sufficient one I do not doubt.
“The defendant admits its liability to pay in full settlement for all claims and demands upon the substituted policy, which was the only policy it admits was in existence or to which the plaintiff was in any way entitled upon the death of her husband, the sura of §3,267.9(5. It tendered thin sum before it became due, but the plaintiff dedin (id io receive it. ⅜ is therefore not entitled to interest, but only to the principal sum mentioned.” The plaintiff is accordingly entitled to judgment for $3,267.J)(>, and, I think, for interest thereon from the date at which, under the terms of certificate No. 385,328, that sum became due and payable. As a;t present advised, I am of opinion that the affidavits do not sufficiently allege the facts necessary to warrant the court in holding that interest ought not to he allowed; but the question has not been argued, and, if desired, I will hear counsel upon it. If, however, my present understanding of the matter shall be acquiesced in, an assessment may be prepared in accordance therewith, and thereupon judgment will be entered in conformity with tills opinion.