LIFE INSURANCE.

Jurisdiction--Waiver--Accounting-Tontine Policy.-The plaintiff, a resident of New York, took out in New York a policy of life insurance called a "tontine policy" in the defendant company, a corporation incorporated under the laws of New York, but also having an office and an agent to accept service of process in Massachusetts. By the terms of the policy the plaintiff, at the end of the tontine period, having performed his part of the contract, was to receive a certain sum, together with accumulations accruing to that class of policy-holders from interest and dividends. At the end of the tontine period the plaintiff, being dissatisfied with the amount awarded him by the defendant, brought a bill in equity in Massachusetts for an account of the amount due him upon his policy. To this bill the defendant filed a general answer, not objecting to the jurisdiction of the court. Held, that the defendant must be held to have waived any objection to the jurisdiction of the court, and that, although the defendant's books were in New York, and it would be a matter of inconvenience for it to account to the plaintiff in Massachusetts, the latter was a creditor, and not a member, of the defendant corporation, and was entitled to an account.

Pierce v. Equitable Life Assur. Soc. U. S. (Mass. S. J. C.), 12 Northeastern, Reporter (Sept. 9-30, 1887), p. 858; 4 New England Reporter (Oct. 11, 1887), p. 876.

Statute-Alabama Code 1876, Secs. 2733-2734-Proceeds of Policy Rights of Creditors.-A life policy taken out by a father when insolvent is not protected against the claims of creditors under the wife's policy law (Code 1876, secs. 2733-2734) of Alabama.

Measure of Creditors' Interest.-That in the event of the father's death the measure of the creditors' interest is not the amount of premiums paid, but the amount of the policy.

Fearn, Ex'trix, et al. v. Ward, Adm'r (Ala. S. C.), 16 Insurance Law Journal (Nov., 1887), p. 935.

Assignment to Creditor--Wager Contract-Rights of Administrator to Proceeds of Policy.--It is conceded that the policy of $3,000 on the life of W. was taken out and immediately assigned to B. for the purpose of securing a debt of $100 due by the former to the latter, and subsequently one-half was assigned by B. to C. Upon the death of W. the money due under the policy was paid to B. and C. Held, While there is no accurate rule by which it may be determined from the proportion between a creditor's life insurance policy and the amount of the debt, whether the contract is a wager or not, it may be safely said that, when the life of a debtor who owes but $100' is insured by his creditor for $3,000, the transaction is within the prohibition against wagering policies. Held, also, in such a case the court should declare, as

a matter of law, that no more can be recovered by the creditor than is sufficient to reimburse him his debt, the premiums he has paid, and in

terest.

Cooper v. Weaver, Adm'r (Pa. S. C.), 44 Legal Intelligencer (Oct. 28, 1887), p. 421.

Place of Contract.-A policy of insurance issued by a New York company to a citizen of Missouri, upon an application made in Missouri, and forwarded to the company in New York, where it is accepted, the policy drawn and signed, and returned to Missouri to be delivered to the insured, by the terms of which policy the premiums are to be paid to the company in New York, and the sum insured, when due, to be payable at the office in New York, is subject to the Missouri statutes governing policies of life insurance delivered in that state.

Statute-Rev. St. Mo., Secs. 5983-5985-Temporary Insurance-Policy-Forfeiture.-Section 5983 of Missouri statutes provides that no policy-of insurance on life hereafter issued by a company authorized to do business in this state shall, after the payment of two full annual premiums, be forfeited or become void by reason of non-payment of premiums, and also provides for temporary insurance. Section 5985 provides that, upon the death of the insured during the term of temporary insurance, as provided in section 5983, and where no condition of the policy is violated except non-payment of premiums, the company shall be liable for the full amount insured, as if there had been no default in payment. Held, That a provision in a policy which required the payment of three full annual premiums before the insured was entitled to temporary insurance is void.

Wall v. Equitable Life Assur. Soc. (U. S. C. C.), 32 Federal Reporter (Nov. 8, 1887), p. 273.

Parties Beneficiary Joining Executor in Action.-In an action against an insurance company, brought by a beneficiary whose only claim in the policy was for collateral security of an amount due to him from the deceased policy-holder, and where the legatee under the will of deceased had been impleaded, on the ground that she claimed the insurance by virtue of the will, and where it appeared that the estate was being probated in Dakota: Held, That the controversy between the parties could not be determined without making the executor of the estate a party thereto.

Practice-Stay of Proceedings-Necessary Parties-Unreasonable Delay. Where the trial court orders that all proceedings in the action be stayed until a necessary party to the action is brought in, but does not limit the time therefor, the remedy in case of unreasonable delay is to apply to the trial court, which in that respect is vested with discretionary powers, for a modification or vacation of such order.

Shove v. Shove, impleaded, etc. (Wis. S. C.), 34 Northwestern Reporter (Nov. 5, 1887), p. 392.

Insolvent Company-Death Claim-Action-Jurisdiction.-The defendant, a mutual insurance company of Connecticut, but licensed to do business in Missouri, having become insolvent, the insurance commissioner began proceedings in the Supreme Court of Errors of Connecticut to annul its charter and wind up its affairs. Holders of running policies in Missouri commenced suits by attachment in the courts of that state to recover the reserve value of their policies, upon the theory that the insolvency of the company worked a breach of the contract of insurance, and entitled them to sue for the present value thereof; but it was decided (Frey v. Ins. Co., 31 Fed. Rep. 197--9 ROUGH NOTES, 354) that they were barred by and must be remitted to the prior proceedings in Connecticut. Held, That the principle of the above case applied to an action in Missouri by the holder of a death claim.

Weingartner et al. v. Charter Oak Life Ins. Co. (U. S. C. C.), 32 Federal Reporter (Nov. 15, 1887), p. 314.

Statute-Applicable to Policy Issued Before Took Effect.-Chapter 341, Laws of 1876, prohibiting the forfeiture of policies unless thirty days' notice is previously served, applies to policies issued before, but which have been renewed after the passage of said act.

Wyman, Adm'r, v. Phœnix Mut. Life Ins. Co. (N. Y. S. C.), 27 New York Weekly Digest (Nov. 18, 1887), p. 206.

Assignment-By Husband Direct to Wife.-R. P. B. effected two policies on his life-one payable to his wife and children, and the second to his executors, administrators or assigns. Prior to his death he indorsed the second policy as follows: "I hereby hand over to my wife all the interest in this policy for the benefit of herself and children." Plaintiff sued on the policies for the benefit of herself and children. Held, That she was entitled to recover on the first policy but not on the second.

Bliss v. Etna Life Ins. Co. (Nova Scotia S. C.), 7 Canadian Law Times (Nov., 1887), p. 409.

Policy Payment to Person Producing Policy—Right of Person Named as Beneficiary.-The policy in suit was under the system known as "industrial insurance." S. was named as beneficiary. The policy provided, "the production by the company of this policy, and a receipt of the sum assured, signed by any person furnishing proof satisfactory to the company that he or she is the beneficiary, or an executor or administrator, husband or wife, or relative by blood, or connection by marriage, of the assured, shall be conclusive evidence that such sum his been paid, and received by the person or persons lawfully entitled to the same, and that all claims or demands upon said company under this policy have been fully satisfied." The policy had never been in the Possession of S., and it does not appear that he ever knew of its existence. Held, that payment to the daughter of the insured, who produced the

policy and receipt-book, and her receipt, constituted a complete defense to the company against any claim of the beneficiary named in the application.

State (Metropolitan Life Ins. Co., prosecutor), v. Shaffer (N. J. S. C.), 11 Atlantic Reporter (Dec. 7, 1887), p. 154.

Contract Parol Agreement to Vary Terms.-A written contract of insurance must be taken to contain all the essential elements of the contract, and a verbal agreement, made at or before the time of the written contract, is inadmissible to vary its terms.

National Mut. Ben. Assoc'n v. Hickman et al. (Ky. C. A.), 5 Southwestern Reporter (Dec. 5, 1887), p. 565.

Interpleader-Practice-Court and Jury.—In an action on a life insurance policy there were two claimants for the money, and an order of interpleader was made, and the company paid the money into court. Held, that the action was of an equitable nature, and triable by the court, and that the court was not bound by the finding of the jury on specific questions submitted to them, but might disregard it and find the contrary.

Clark v. Mosher (N. Y. C. A.), 27 New York Weekly Digest (Dec. 2, 1887), p. 241.

Prompt Payment of Premium-Waiver-Jury.-The provision of the policy requiring a prompt payment of the periodical payments is a condition precedent, but such prompt payment may be waived by the company, and in such case the contract remains in full force, and whether there has been a waiver is a question for the jury.

Baker v. New York State Mut. Ben. Association (N. Y. S. C.), 27 New York Weekly Digest (Oct. 14, 1887), p. 91.

Waiver of Prompt Payment of Premium.- When the policy provides that payment of premiums should be made on a given day, or days, and that in default of such payment at the time specified the policy should be void, but the company issuing the policy afterward pursues a practice of accepting premiums after the time of payment specified in the policy, without insisting on the forfeiture, then such practice of receiving premiums, overdue, operates as a waiver of the right of forfeiture.

Same. A receipt of an insurance company for an overdue premium contained the following condition : "It being understood that the receipt by this company of payment after the date due is only on condition that the member is alive and in good health at the date of such receipt." Held, that such receipt, even though it be for an assessment paid after it was due, does not tend to show a waiver by the company of its right of forfeiture for non-payment of dues after maturity, except in the event that the insured is alive and in good health when payment is tendered.

Proofs of Death-Waiver.-Plaintiff was under no obligation to make out formal proofs of death of the insured after the company had denied all liability under the policy.

Measure of Damage. In estimating damages, interest may be computed on the face of the policy from the time it was payable.

Unsell v. Hartford L. & A. Ins. Co. (U. S. C. C.), 32 Federal Reporter (Nov. 29, 1887), p. 443.

Jurisdiction-Foreign Company.-A foreign insurance company claimed as a defense on a policy that there was no allegation or proof that the company was doing business in the state, and that the policy was made payable outside the state, and consequently the statutes of the state did not apply to it. The application for the policy, and the policy itself, and the declaration, showed that the company was doing business in the state, and did nothing to oust the jurisdiction of the court. Held, that it was sufficiently shown that the company was doing business in the state, and subject to its laws.

Demand of Payment.-A verdict in favor of the beneficiary was set aside, one ground being that there was no evidence of a demand for payment. After proofs of death, and the policy became due, plaintiff's agent repeatedly, and in various ways, made demands upon the company for payment of the policy, and finally sent a person to the principal office of the company, who made a demand there for payment, and at that time the company admitted the receipt of former demands upon it by plaintiff's agent. The law does not prescribe any particular form of demand. Held, that the court erred in setting aside the verdict on that ground.

Damages for Bad Faith-Evidence-Jury.-The evidence and the defenses pleaded by defendant showed that defendant had put off the payment of the policy on the pretext of wanting to investigate the matter, but that defendant made no effort to investigate, or to ascertain facts to sustain a defense to the policy. After the commencement of the suit defendant offered to settle by paying the face of the policy. Held, that from the facts recited, and the circumstances, the jury might properly have inferred "bad faith."

Hull v. Alabama Gold Life Ins. Co. (Ga. S. C.), 3 Southeastern Reporter (Dec. 20, 1887), p. 903.

Fraud-Instructions-Error-Directing Jury to Find for Defendant. In a suit by a daughter to recover money paid upon a policy taken upon the life of her father, where no examination had been made of the insured previous to the issuing of the policy, it appeared that the policy had been taken up by an agent of the company, and the agent had stated that the policy would be returned, or the insurance money refunded. The company alleged fraud in the procurement of the policy, but could not prove it on the trial. The court below instructed the jury