Robinson v. St. Louis Mut. Life Ins.

20 F. Cas. 1045

• Court: U.S. Circuit Court for the District of Missouri
• Decided: July 1, 1878
• Status: Published

Opinion

DILLON, Circuit Judge.

We are of the opinion that, assuming the plaintiff to be right in his contention that this was a waiver of the right to forfeit this policy, it is a defence available by replication in a law action, without any question. We enforce the same principle here every day in reference to these policies, where something happens after the execution of the policy which is set up as an estoppel by the company. The company has waived the right to insist upon this forfeiture. In a case reported (Geib v. International Ins. Co. [Case No. 5,298]) we considered this question very fully. There the loss had happened on a fire policy, and the company, before any action was brought by the assured, filed a bill in equity to cancel the policy on the ground of fraud. Now, the purpose of the company was — knowing or apprehending, without question, that a suit would be brought against it — to transfer the litigation from the law to the chancery forum; in other words, if I may be allowed to use the expression, by a “flank movement” to avoid the jury, and draw into a court of chancery all the litigation of the country in policies of insurance — marine, fire, and life. Justice Miller sat at the time, and agreed in the opinion that I delivered in that case. I was very much gratified to see that in two cases .referred to me by the bar and reported in the Chancery Appeal Reports of Great Britain, two years after that decision, our views coincided with that of the courts over there. We have no doubt whatever that if this company did waive a right by this circular — the right to insist upon the forfeiture —the plaintiff can avail himself of it in a court of law. Bill dismissed.