18 Am. Rep. 652 | Va. | 1874
On the application of Dr. Aaron H. Atwood, the intestate of the plaintiff', then residing in the State of New Hampshire, a policy of insurance was, on the 80th of December 1846, issued to Sarah Jane Atwood, then the wife of Dr. Atwood, by the plaintiff in error, an insurance company chartered by the .State of New Jersey, and having its principal office in Newark in that State, insuring the life of Dr. Atwood in the sum of $2,600 for the term of life. The annual premium to he paid was $50.18, and the policy contained the usual clauses vacating the policy in case of failure to pay puuctually the annual premiums on or before the days
The premiums were all regularly paid or settled for according to the regulations of the company, by Dr. Atwood, down to the 30th day of December 1861, when the last premium fell due. Prior to that time, to wit: about the year 1850, Dr. Atwood removed to the State of Virginia, where he resided until his death, a portion of the time in the city of Richmond, and the residue thereof in the county of Amelia; and during the whole time of his residence in Virginia he paid or settled for the annual premiums aforesaid to B. "W. Knowles, agent of the plaintiff in error in this State, until the 30th day of December 1861. At and before that date war had broken out and was then raging between the United •States, of which the State of New Jersey was a member, .and the Confederate States, of which Virginia was a member, and in consequence thereof Knowles, the agent of the insurance company, declined to receive payment of the premium falling due on the day last mentioned ; but he took a note or bond therefor, subject to the approval of his company. Before the next premium fell due, viz: on the 29th of November 1862, Dr. Atwood died in Amelia county, Virginia; so that at his death every premium, except the last, had been settled for by him. His widow, the defendant in error, was appointed and qualified as his administratrix.
Mrs. Sarah Jane Atwood, first wife of Dr. Atwood, to whom the policy was issued, died about two years after her marriage, leaving an only child," who survived her hut a short time, dying in infancy. Dr. Atwood married a second -wife, who died in 1858, leaving three children who are still living; and in November 1859 he mar-’ Tied the defendant in error. After the war was over the
The material facts proved on the trial were substantially as above stated; and the defendant below demurred to the evidence. The plaintiff’ joined in the demurrer, and the jury assessed the plaintiff’s damage to $2,361.15, with interest from the 1st of December 1865 till paid, subject to the opinion of the court upon the demurrer. The court gave judgment on the demurrer for the plaintiff; and the case comes before this court on a writ of error to that judgment. The case has been ably ai’gued on both sides, and presents on its merits a question of grave interest and importance, viz: the effect of the late war on policies of life insurance, when the underwriters on the one hand, and the assured and insured on the other reside respectively in hostile States. This question has been very recently fully considered by this court, in a case differing in no material aspect from the case now under consideration, and in my judgment has been definitely settled. I allude to the case of The Manhattan Life
This was a judgment of a majority of a full court, after elaborate argument and careful consideration, two judges dissenting; it was therefore the deliberate judgment of this court in a full court. It is true that two of the majority seemed unwilling to yield their assent to all the reasoning of the learned judge who prepared the opinion on that side; but it is very evident that they differed from him only in non-essentials, as they both concurred in the results — in the judgment of the court. That judgment necessarily established the following propositions :
1. That a policy of life insurance, providing for the payment of annual premiums under penalty of forfeiture .of all payments and all interest in the policy for non
2. In such case the non-payment of premiums by reason of the failure or refusal of the underwriter or his-agent to receive the premiums in consequence of the existence of war does not vacate the policy.
These propositions of law were both involved in that, case, and it was absolutely necessary to establish them both before the judgment could rbe affirmed. That judgment having been affirmed by a majority of a full court after able and elaborate argument and grave deliberation on the very points, the decision will be regarded by me as settling the law of Virginia on those-questions.
In declaring what the law is, we have been taught that it is essential, “for the sake of obtaining uniformity, consistency and certainty,” to apply to the case in judgment the rules of law which have been established by the wise, learned and just who have preceded us, to adhere to precedent unless manifestly unjust and erroneous. In the language of Parke, J., I would say “it appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests-of law as a science.” The judicial rule, stare decisis, I have always regarded as sound and conservative, and obligatory on courts, but in the present ease it addresses-itself to my judgment with peculiar force, occupying as I do a seat on the bench of this court recently filled by one of the majority in the case referred to — the learned and lamented Judge Joynes. Under such circumstances it would be unseemly in me to attempt to weaken the
“However lawful the condition of avoidance, as prescribed in this case, may be admitted to be, it is in effect a forfeiture which ought not to be favored. To subject to forfeiture all the premiums paid, as well as the five thousand dollars for the loss of life, would be hai’shly and unreasonably penal, for no better cause than the inevitable non-precise payment of another instalment of premium, which the law prevented the appellant from a right to receive. Hone of the parties can be presumed to*505 have contemplated such a disabling war, or to have intended hy the condition of avoidance more than voluntary failure to pay, when there toas legal ability to receive the premiums.”
“Then, as according to principle and consistent authority, the contract was not dissolved by the war, how can this court, consistently with the spirit of the literal condition and the facts of the case, adjudge the policy avoided by the inevitable non-payment of premiums? Such a decision would seem to be as unreasonable as unjust.”
This was the first case on the subject in point of time, having been decided in August 1870; but it was not reported until after March 1871, and was not before this court when the case of Manhattan Co. v. Warwick was decided. They may both be regarded, therefore, as cases of the first impression; and there is a remarkable and instructive concurrence, both in the reasoning and results >of the opinions of Judge Robertson in the former case and of Judge Anderson in the latter. Judge Anderson regards the rights acquired by the assured, under the policy, by previous payment of premiums, as vested rights in an entire contract, subject to defeasance or forfeiture hy a failure to continue the payment of the annual premiums; that this payment was necessary to be made under the contract, “in the performance of a condition, to prevent a forfeiture;” and that it would be revolting to our every sense of right — would be “unreasonable, arbitrary and immoral,” either to hold such a contract abrogated by the war, or by the non-performance of a condition which by reason of war became illegal and impracticable of performance. The supreme court of New York take precisely the same view of the contract aud condition. Judge Peckham, delivering the opinion
“ It is against sound principle, and at war with the lights of the age, that the debts of individuals should be ™Paired by national difierences; debts, be it understood, that existed by contracts made prior to the war. Clarke v. Morey, 10 J. R., 73. This contract of the parties I do not thiuk was nullified by the war. What was it? As-presented in the complaint and found by the referee it is a contract of insurance by defendant for the life of the insured, for the consideration of so much money received and the annual payment of $160 during the continuance of the policy. It was a valid policy ‘for the life of the-insured,’ to become void by the omission to pay the-agreed annuity. In principle I do not see why it is not like a lease or grant of land in fee, reserving rent, fi> become void if the rent be not paid, if the condition subsequent be not complied with. I do not say that it. would bar the plaintiff’s recovery if the contract were as the defendant insists it is. It is enough to say that such is not this contract. The agreemeut is to insure for the life of the assured. Subsequent failure to pay the annuity when.due defeats the policy. It is a condition subsequent, not precedent.”
The supreme courts of the States of Mississippi and New Jersey have also followed and sustained the decision in The Manhattan Company v. Warwick; and it has-been very recently reaffirmed by the unanimous judgment of our own Special Court of Appeals, in the case of The New York Life Insurance Company v. White, in a carefully-considered and well-reasoned opinion by Judge Wingfield. Had these cases been before the Supreme Court of Georgia when the case of Dillard v. The Manhattan Company was decided we think it reasonable-
In support of the decision of this court in the case of The Manhattan Company v. Warwick, we have, then, the decisions of Judges Blatehford and Bond of the Federal courts above referred to, the decision of the Supreme court of Kentucky in New York Life Insurance Company v. Clopton, 7 Bush., 179; the decisions of the Supreme court of New York in Cohen v. New York Life Insurance Company, 50 N. Y. R., 610, and Sands v. same company, Ibid., 626; the decision of the Supreme court of Yew Jersey in the case of Hillyard v. The Mutual Benefit Insurance Company, reported in the second and third numbers of the Insurance, vol. 2, pp. 137 and 175; the decision of the Supreme court of Mississippi in the case of Statham v. New York Life Insurance Company, 45 Miss. R., 58, and the decision of our own Special Court of Appeals above mentioned: Contra, Judge Emmons of U. S. Circuit court and the Georgia case alone.
"Without prolonging this opinion by a comment in detail on these cases, some of which haAre gone farther in the same direction than the case of The Manhattan Company v. Wanoick, and without repeating what is better said in those cases, I feel justified in saying that the proposi
The objection struck me at first as presenting a grave difficulty; but upon a more careful consideration I am satisfied that it is not valid. I think, on the facts of this case, that the husband, Dr. Atwood, must be deemed in law the contracting party; and, as distributee of his deceased son, he had long been the sole beneficiary. The policy, it is true, on its face purports to be issued to Sarah Jane Atwood, wife of Dr. Atwood, and expresses that the premium was paid by her; but it is apparent on the record that she was not the acting party, and that no consideration, in point of fact, moved from her. She lived only two years after her marriage, and consequently not less than thirteen of the fifteen premiums settled by Dr. Atwood must have been settled after her death. It is proved by a witness of the plaintiff in error that the policy was issued on “Aaron H. Atwood’s application,” and it is abundantly shown by the same witness and the other proofs in the cause that the premiums were in fact all settled for by him. A contract nominally with the wife, for such consideration and under such circumstances, is in law a contract with the husband, on which ordinarily he may sue in his own name, even in the lifetime of the wife; and of course the right of action survives to him at her death. In May v. Boisscau, 12 Leigh, 512, all the judges were of opinion that an acknowledgment of debt to a wife would at once enure to the husband, and not survive to the wife, unless it appeared on the face of the contract, or
In this case it is evident, as I have already said, that . , . ’ , . „ J ’ no consideration moved from the wife. The payments were evidently made by Dr. Atwood, thirteen of them ¿after his wife’s death. In such case my opinion is that it ¡is Dr. Atwood’s contract, on which, without the concurrence of his wife, he could, even if an ordinary contract, sue alone. But if not so, the most that could be said is, that it was a contract which both could sue jointly, and | Dr. Atwood having survived his wife, he became sole ¡contractor, and the legal right to enforce the contract by suit, in either view, was in him, and devolved on his ¡personal representatives.
It is insisted, however, that under the 2d section of chap. 116, Code of 1860, p. 558, a right to sue in his own name vested in the child and passed at his death to his personal representatives; and therefoi’e the suit was improperly brought in the name of Dr. Atwood’s representative.
’Without considering the question argued at the bar, whether on the facts of this case any such right existed in the child, under the statute referred to, as is claimed by the counsel for the plaintiff in error, but conceding the claim, I am still of opinion that such right was cumulative merely; that, like the ease of an assigned bond or note, the original right to sue in the name of the contracting party is not destroyed by the new remedy allowed by statute, but on the coiitrary remains in full force.
It is proper to add, that in considering this question I have been governed by the principles of the common
My opinion is, that the judgment be affirmed, with ■costs and damages to the defendant in error.
Anderson and Staples Js. concurred in the opinion of Bouldin J.
Moncure P. and Christian J., whilst they still were of the opinion expressed by them in the Manhattan Insurance Company v. Warwick, yet upon the maxim of stare decisis, they concurred in affirming the judgment in this •case.
Judgment affirmed.