202 F. 113 | 5th Cir. | 1913
(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.
“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
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.
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, 17 Sup. Ct. 427, 41 L. Ed. 832.
The judgment of the District Court is reversed, and the cause remanded for further proceedings.