Mutual Life Ins. Co. of New York v. Hilton-Green, No. 2,427

No. 2,427 | 5th Cir. | Jan 7, 1913

GRUBB, District Judge

(after stating the facts as above). It is conceded by the defendants in error that the contract of insurance was not an Alabama contract. The contention is that the application of the insured was taken in Alabama, and it is upon this that the applicability of the Alabama statute is conditioned. The material facts bearing upon this question are practically without dispute, and are as stated. If the mere signing, of the application by the insured and its delivery in incomplete form to the insurance agent constitutes the taking of the application, it is clear that the application was taken in Alabama. If, on the other hand, the application.cannot be said to be taken until its delivery to the defendant’s agents in a completed form, according to the usual requirements of the company, to be forwarded to it for its acceptance or rejection, then the application was taken not in Alabama but in Florida. [1] Nor do we think that the determination of this question is a matter for the jury aided by the testimony of insurance experts. If the facts of the transaction are not' in conflict, the place of the taking of the application in this case under its language became a question of law to be determined by the court. The application by its very terms becomes a part of the policies issued upon it, and it is therefore to be construed by the court, as are all written contracts. In no other way is uniformity of construction obtainable.

[2] To properly construe the policies, it is essential to first determine what the application consists of, since, whatever that is, it becomes a part of the contract to be construed. The defendants in error contend that the medical examiners’ report forms no part of the application, and that it was therefore complete when signed by the insured and turned over to the insurance solicitor at Flomaton. The language of the application is:

“This application made to the Mutual Life Insurance Company of New York is the basis and part of a proposed contract of insurance, subject to the charter of the company, and the laws of the state of New York. I hereby agree that all the following statements and answers, and all those that I make to the company’s medical examiners, in continuation of this application, are by me warranted to be true and are offered to the company as a consideration of the contract which I hereby agree to accept, etc.”

This' language is inconsistent with the contention of defendants in error. The medical examiners’ report is stated to be a continuation of the application, and is therefore a part of it. The statements made by the applicant to the company’s medical examiners and contained in their report are as much warranted by the applicant as are the statements made in the application signed by the applicant only. By the very terms of the application, applicant’s statements made to the medical examiners and embodied in their report to the company “are offered to the company as a consideration” of the proposed contract of insurance by the applicant, just as are the statements made by the applicant without the intervention of the examiners. The'application and medical examiners’ report are physically attached to each other. The applicant is required to certify under his signature that his answers, as the medical examiners’ report states them, are correctly recorded by the examiners. In view Of the language of this application, we have no difficulty in reaching the conclusion that no application could be considered as having been taken until the medical examiners’ report was .filled out and certified as correct by the applicant.

It is said that the examiners are the agents of the insurance company, and that their report is for the exclusive benefit of the insurance company, and that the applicant’s duties are at an end when he signs the application. The information furnished in the application itself is for the exclusive benefit of the company, as much so as is that contained in the examiners’ report. In each case the applicant largely supplies the information furnished. So far as the family and personal history of the applicant is concerned, • the medical examiner’s function is that of an amanuensis only. Nor is it correct to say that the applicant, having signed the application, has no further duty to perform. On the contrary, after the examiner completes his report, the applicant is expressly required to certify that his answers, as incorporated in it by the examiner, are correct. The application is not complete even as to the applicant until he has done this. If it be conceded that the medical examiners solely represent the company in what they do, it still remains true that, after their task has been finished, the applicant is called upon to take the final step by certifying under his hand to the correctness of at least a part of what the examiners have done. Until this certificate has been affixed to the examiners’ report, there is no application, such as is required by the company for submission to it for acceptance or rej ection.

[3] Applying this principle to the facts of this case, the application, though signed in Alabama and there turned over by the applicant to the agent, was not then completed, nor was its delivery to the agent final, and for the purpose of transmission to the company for its action. It was understood between the insured and Hogue that it was incomplete and not ready for submission to the company. It was turned over to Hogue to give him the opportunity to complete it by taking the medical examiners’ report, and, after having accomplished that, it was understood that it was to go back to the insured for his certificate. Hogue after receiving the application procured the examiners’ report and then turned the application back to the insured for his certificate, which was thereupon given by him. All this was done in Florida, as appears without conflict from the record. The application consisted of two parts: (1) A request for insurance; and (2) the furnishing of the information necessary to enable the company to pass upon the request. The request in this case was made in Alabama, but the other essential part of the application was completed in Florida. The application first became effective when both essentials were completed. One was as necessary as the other. The evidence shows that the application first became effective when delivered completed by the assured to Hogue at Pine Barren, Fla., after the examiners’ report and applicant’s certificate had been attached to it. The delivery at Floma-ton was tentative, and not final, and in no proper sense can it be said, in view of the undisputed facts in the record, that the application was there taken.

The transmission of the application through the Mobile agent of the defendant to its home office becomes immaterial in view of the admitted fact that Hogue received the application for the company from the insured in Florida. The parties also contemplated that the policies should be delivered to the insured at his home in Florida, and this was afterwards done through the defendant’s agent at Jacksonville, Fla. We think the court erred in submitting to the jury the determination of the place of the taking, of the application.

We cannot say that the verdict of the jury for the defendants in error was not based on the incontestability of the policies, due to the conceded fact that two premiums had been paid on them by the. insured, and a finding that the application was taken in Alabama, and that the Alabama statute ruled the case.

We need not consider whether it was competent for the Alabama, Legislature to control by its enactment the construction of a New York or Florida contract against its express terms, when the contract was sought to be enforced in the federal court of a jurisdiction other than that of the state of Alabama, merely because a preliminary step to the making of a contract occurred in that state. Allgeyer v. Louisiana, 165 U.S. 578" court="SCOTUS" date_filed="1897-03-01" href="https://app.midpage.ai/document/allgeyer-v-louisiana-94631?utm_source=webapp" opinion_id="94631">165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832" court="SCOTUS" date_filed="1897-03-01" href="https://app.midpage.ai/document/allgeyer-v-louisiana-94631?utm_source=webapp" opinion_id="94631">41 L. Ed. 832.

The judgment of the District Court is reversed, and the cause remanded for further proceedings.