116 N.Y.S. 404 | N.Y. App. Div. | 1909
Lead Opinion
The defendant is a foreign life insurance company, organized under the laws of the State of Massachusetts, doing business in the
Thereupon the plaintiff brought the presént action in equity to restrain the defendant from prosecuting its action in the Commonwealth of Massachusetts, and obtained a temporary injunction to that effect, from which the defendant appeals.
The defendant does not challenge the power of this court to restrain the defendant from prosecuting its action in Massachusetts, and properly so, for it is not open to challenge.
The defendant, although a foreign corporation, is engaged in business in this State by permission of the Insurance Department, and, so far as any litigation is concerned, is, therefore, to be deemed a citizen of this State. If the plaintiff was also a citizen of this State at the time she brought her action, there can be no question that a court of equity of this State has the power to enjoin the parties from prosecuting actions in other jurisdictions concerning the same subject-matter. (Edgell v. Clarke, 19 App. Div. 199; Locomobile Co. v. American Bridge Co., 80 id. 44.)
The plaintiff followed the proper practice in bringing an independent action for the purpose of restraining the defendant instead of moving in the action already brought. (Belasco Co. v. Klaw, 98 App. Div. 74.) The defendant insists, however, although it did not plead it as an affirmative defense by its answer, that the plaintiff was not at the time of the bringing of her action a resident of the State of Hew York but was a resident of the State of Massachusetts. It must be conceded that her husband became a resident of the State of Hew York prior to liis death in 1907. Although she began an action for divorce in Massachusetts in 1906 no decree appears to have been granted and if her husband’s residence in this State did not operate to make her a resident, the proofs in the rec
The plaintiff being a resident of the State and it being proper to consider the defendant as also a resident, in view of its doing business here under permission of the Insurance Department, the facts would seem to present a case eminently proper for the intervention ota court of equity to restrain the defendant from prosecuting its action in Massachusetts to annul the policy. The defendant set up as an answer 'in the action on the policy in this State the precise defense which it pleads as a cause of action in the Massachusetts court, and in addition avers that under the Insurance Law of the State of New York it cannot transfer the action on the policy to the .Federal courts because if it should do so it would lose its right to do business in this State, and that it is necessary to swear the attending physicians of the insured respecting the incurable chronic disease from which it claims he suffered prior to and when the policy was issued, and that such physicians cannot testify in the State of New York but can testify in the State of Massachusetts. Whatever may be the wisdom of the State of New York in prohibiting physicians from disclosing what they learn while treating a patient it is and has long been the law that they shall not make such disclosures without consent of the patient or his representatives. Whether the law be wise or unwise its citizens are entitled to the benefit of
But there is another reason why .the defendant should be restrained from prosecuting its action in Massachusetts. The policy is set forth in the record, and in addition to the clause above quoted it contains the following: “ Incontestability. This company insures only preferred risks, and the examination of the insured hereunder being satisfactory, this policy is incontestable exdept for suicide, whether sane or insane, committed within one year from the date thereof.” A copy of this policy is attached and made a part of the bill in equity filed in the Massachusetts court. The insured did not commit suicide within one year, and in view of this provision of the poli,cv it is quite apparent the bill does not state facts sufficient to constitute a cause of action, and hence the action in Massachusetts must be deemed to have been brought in bad faith. The clause first quoted with respect to the insured being in good health upon delivery of the policy and payment of the first premium has no application to such chronic diseases as the insured may have had at the time of his application and medical examination. The defendant had made an examination concerning the insured which it declared in writing to be satisfactory to itself, and because it was satisfactory it agreed that it would not contest payment of the
The defendant so far as appears has not even the excuse of holding a waiver by the insured permitting any physician who may have attended him to testify as to what he learned concerning his ailments such as is found in many applications for policies of life insurance. The policy having been issued in Massachusetts to a resident of that State, such a waiver might give some color to the claim that questions concerning it should be tried in a forum where physicians were not prohibited from so testifying. But there was no occasion for defendant obtaining a waiver for no inquiry respecting any disease which the insured had at the time of his examination or had had prior thereto was material, because defendant had made such inquiry to its satisfaction and stipulated that no further contest concerning such diseases should be made, and that upon death, except by suicide within one year, it would pay the amount agreed.
Laug-hlin and Scott, JJ., concurred; Ingraham and Clarke, JJ., dissented.
See Code Civ. Proc. §§ 834, 836; Ins. Law (Laws of 1893, chap. 690), § 30.— [Rep.
Dissenting Opinion
In the year 1904 Everett B. Webster was a resident of the State of Massachusetts and resided there with the plaintiff, his wife. In that year he applied for and obtained from the defendant, an insurance company organized and existing under the laws of Massachusetts, a policy of life insurance by which the defendant agreed to pay the amount thereof “ upon receipt at the Home Office of the Company in the City of Boston, of satisfactory proofs of the death of Everett B. Webster of Boston, State of Massachusetts (the insured hereunder), to Anna C. M. Webster, wife, or, in the event of he> prior decease, to the insured’s executors, administrators or assigns, deducting therefrom any indebtedness then existing against the policy.” The premiums upon this policy were due and payable at the home office of the company in the city of Boston. It gave to the insured the right during his life to substitute another beneficiary, and also provided that the surrender and loan values as well as the paid up and intended insurance were based upon section 76 of chapter 118 of the Revised Statutes
The complaint alleges that the said Everett B. Webster fully performed all the conditions of the said policy on his part which included the payment of premiums at the home office of the company in Boston, Mass.; that the insured died on the 29th of November, 1907; and that on the 2d day of January, 1908, the plaintiff by her attorney and agent duly delivered at the home office of the defendant in the city of Boston satisfactory proofs of the death of the said Webster. In the proofs of death presented by the plaintiff to the defendant at its home office in the State bf Massachusetts she describes herself as residing at No. 36 Sagamore street, Lynn, Mass., which statement was duly verified by oath before a notary public on the 13th of December, 1907. Both parties continued to reside in Massachusetts until the year 1906, when the insured seems to have abandoned his wife, he coming to New
We have here a Massachusetts contract, made in Massachusetts, between citizens of Massachusetts, to be performed in Massachusetts, based upon and subject to the laws of the State of Massachusetts, and which clearly contemplated that the laws of that State should control in determining the rights of the parties under it. The defendant in this action has appealed to the courts of that State to determine its rights and obligations under that contract and the plaintiff, by acquiring what seems to me a very doubtful residence in the State of New York after her right under the contract had accrued, claims the right to enjoin this Massachusetts corporation from applying to the courts of the State of Massachusetts for the determination of its rights and obligations under this Massachusetts contract which was to be performed by it in that State. Stress is laid by Mr. Justice Houghton in his opinion upon the fact that this defendant has acquired the right to do business in this State and thus must be construed to be a New York corporation, but I know of no principle that would sustain such a contention. - As between this plaintiff and the defendant in relation to the contract in question neither of the parties to this controversy has acquired any right or subjected itself or herself to any disability because of the
I think, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction denied, with ten dollars costs.
Clarke, J., concurred.
Order affirmed, with ten dollars costs and disbursements.
Sie, See Revised Laws.— [Rep.