Whitcomb v. Phoenix Mut. Life Ins.

29 F. Cas. 964, 11 Chi. Leg. News 408, 8 Ins. L.J. 624, 1879 U.S. App. LEXIS 2260

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: July 3, 1879
• Status: Published

Opinion

LOWELL, District Judge.

The brief for the plaintiff is prepared with great ability and learning, and I have examined it with care; but many of the points taken in it are concluded by the exhaustive and binding judgment of Mr. Justice Clifford, given in this court, October 7, 1878, in Desmazes v. Mutual Benefit Life Ins. Co. LCase No. 3,821], which will save me from elaborating those points. In so far as this case differs from that in its facts, some observations will be necessary. It is plain that Bartlett, the agent of the company, called in the agreed statement a general agent, is such, in the sense of the statutes ot Massachusetts, as the context of the agreed facts show, which name has nothing to do with his power to bind the company by contract, but only his extensive power and obligation to represent the company in securing the enforcement of the contract when the time comes to enforce it. His only functions appear to have been to forward applications, and if they were accepted, to countersign and deliver the policy, and receive the first premium, and if the company chose to send him receipts for the subsequently accruing annual premiums he was to countersign and deliver them when he received the payment of the premiums. From the fact that he countersigned receipts as well as policies, it is evident, I think, that the signature was chiefly intended to facilitate the proof of the fact that the premium had been paid, and paid to him, and thereby to lessen the risk of misapprehension in any accounting between the assured and the company; and more especially between the agent and the company. It does not appear that he had any power to alter the contract in the slightest particular, nor to refuse to countersign or deliver either policy or receipts, if the several premiums were tendered him in due time; and I can conceive of no purpose in the countersigning, over and above the delivery, except for the preservation of written evidence, as I have pointed out.

The question argued is, whether this was a Massachusetts contract. No doubt the loss, if there should be one, was to be settled according to the laws of Connecticut, though the action might arise in Massachusetts by virtue of the statute above referred to. The dividend which the insured received in part payment of his first annual premium was made, I suppose, in conformity to the law of Connecticut, and the assured was a member of the company, with all the benefits of those laws. The premium was payable at Hartford, unless the company chose to appoint an agent to receive it in Massachusetts, and if they made such an appointment they could revoke it at pleasure, though after the appointment had been made known to the assured, they could not claim a forfeiture for his failure to pay at Hartford, if he was ready to pay to the agent here, unless they had reasonably notified him of the change. Insurance Co. v. Davis, 95 U. S. 425; Insurance Co. v. Eggleston, 96 U. S. 572. Mr. Justice Clifford decided that such a contract was to be governed by the law of Connecticut, in that case of New Jersey. The only differences of fact are, that in the agreed facts of that case, the agent was not called a general agent, but it is plain that he was such under the law of Massachusetts. The other, and at first sight more striking, difference is, that the policy was sent by mail to the agent, and was by him delivered, but not countersigned. Upon reflection I do not esteem this difference to be material. The contract in that case took effect by delivery in Massachusetts, and in this by being countersigned and delivered in the same state; the mere fact of the countersigning for the purposes and under the circumstances already referred to, has no more effect upon the contract itself than the delivery alone. Two cases have been cited in which it was held that this fact stamped a local character upon the contract, and I should feel much hesitation in differing from those very able judges who made those decisions, were I not aided and instructed by the Case of Desmazes. But those decisions were placed upon reasoning which would apply equally to delivery by an agent within the state, and that point has been concluded by the decision of this court. That there can be no just distinction drawn between a delivery and countersigning and delivery, I cannot for a moment doubt; one is as much a fnere ministerial act as the other, and both are intended to effect substantially the purpose of getting the policy into the proper hands and securing the due and prior payment of the first premium, to which is simply superadded, by the signature of the agent, written evidence of his act and of his responsibility.

The statute of 1ST2 is perhaps broad enough to cover this case or any other in which a citizen or resident of Massachusetts contracts with any other citizen or corporation of this state, whether the contract is made here or elsewhere, and any contract in which an agent here of a foreign insurer, takes any part whatever; but if the contract was a Connecticut contract, I understand Mr. Justice Clifford to say, and I decide, that the law of Massachusetts of 1872 does not enter into and make a part of it, as matter of contract, and that the prohibiting words of the law forbidding the parties to make such a contract as they have made in this case, cannot have effect upon the contract as a legislative command or forced construction. Whether the legislature of Massachusetts might not revoke the permission for foreign companies to have agents here unless they conformed to the statute, is quite a different question.

After opportunity has been given to the plaintiffs to accept the rulings of law, judgment is to be entered for the defendants.