Owen v. New York Life Ins.

18 F. Cas. 922, 1 Hughes 322

• Court: U.S. Circuit Court for the District of Eastern Virginia
• Decided: May 15, 1877
• Status: Published

Opinion

HUGHES, District Judge.

The case is before the court, first, on a motion to remand the cause to the circuit court of Richmond, wnence it was removed into this; and, second, on the demurrer of defendants to the declaration, or rather, to the second and third counts of the declaration, plaintiff’s counsel admitting the first count to be defective in view of the decision of the supreme court of the United States, in the case of New York Life Ins. Co. v. Statham, 93 U. S. 24.

1st. As to the motion to remand, plaintiff’s counsel cite the recent decision of the supreme court of appeals of Virginia, in Continental Ins. Co. v. Kasey, from Roanoke county, 27 Grat. 216. In that case, the motion to remove from the state to the United States court was made after a final trial, and the motion was properly denied. Such is not the case here. It is not pretended that the removal was made after trial, or final hearing, in the court of Richmond. True, the court of appeals go on in the opinion to argue and express the conclusion that a foreign company which complies with the requirements of the laws of Yirginia imposed upon foreign companies, by depositing with her treasurer a certain amount of securities in guarantee of their policies, keeping an agent in the state empowered to acknowledge service of process, etc., etc., thereoy becomes a resident company, and loses its right as a non-resident to remove a suit to the United States court. But the very facts of having such an agent, and depositing bonds of guarantee, etc., etc., such as the law of the state requires of “foreign” companies, are badges and demonstrations of non-residence; and it is difficult to see how the very proofs of a “foreign” company’s non-residence prescribed and accepted as such by law. can be construed as constituting residents. At all events, the United States courts could not delegate to a state court, even of the highest resort and authority, as ill this ease, the determination of such questions of residence and citizenship as involve the right of suing in the United States courts; and a decision even of the supreme court of appeals of Virginia on this subject cannot be accepted as binding by this court. The motion to remove is therefore denied.

2d. As to the demurrer to the declaration; the averments of the three several counts of the declaration, so far as these are material to the questions raised by the demurrer, are substantially the same, though varying somewhat in detail. It is useless to particularize the distinction between these averments; because they all alike contain the common averment that war between the United States and the Confederate States existed, and was flagrant on the 23d of April, 1861, and continued so after the 23d of April, 1862. The fact may be, that the war did not exist in a legal point of view until the 27th of April, 1861; but we are concluded by the averments of the declaration and each count of it, in this respect. The fact is asserted by the declaration, and conceded by the demurrer, that flagrant war existed on the 23d of April, 1861. This fact being assumed, there was not only a non-payment of the premium on that day, but such non-payment was obligatory in consequence of the existence of war. It would have been contrary to the public duty of the plaintiff to malee the payment. It was decided by the supreme court of the United States in the case of New York Life Ins. Co. v. Statham [supra], that where the non-payment of a premium is caused by the intervention of war making it unlawful for the plaintiff and defendant to hold intercourse with each other, the defendant may take advantage of the non-payment so occasioned, and insist upon it as a forfeiture of the policy of insurance, where the policy made any non-payment the condition of forfeiture. That decision carries two propositions, viz.: First, that where nonpayment of a premium is made by the policy a condition of forfeiture, that provision is binding, and the company may insist upon the forfeiture; and second, that when the nonpayment occurs during flagrant war, making all intercourse between plaintiff and defendant unlawful, the non-payment is absolute; and, whether it would be excusable or not if happening under other circumstances, must be treated as a fixed fact, consequent upon the existence of war, of which the defendant may take advantage. Inasmuch, therefore, as the declaration in each count admits the non-payment of the premium due on 23d of April, 1S61, and on 23d April, 1862, and alleges the existence of war on both these dates, which is equivalent to alleging the illegality and nullity of the payments even if they were made, the demurrer must be sustained as against each of the three several counts. But inasmuch as the supreme court, in its decision which has been cited, held that the assured was entitled to the equitable value of the policy arising from the premiums which were actually paid, the order of the court sustaining the demurrer shall be without prejudice to the right of the plaintiff to file an amended declaration, claiming the equitable value of the policy arising from the premiums paid on the 23d April, in 1859 and 1860. I will also hear after notice a motion for leave to amend the second count of the declaration by striking out .the averment of the existence of war on the 23d April, 1861.