Seely v. Insurance Co. , 72 N.H. 49 ( 1903 )

1. The plaintiff's right of action accrued not earlier than March 18, 1894, and suit was brought within six years thereafter. The declaration contained in the writ consisted of the common counts. While the ad damnum was stated, the specific sum sought to be recovered was omitted. The court permitted the plaintiff, without objection, to amend her declaration by adding new counts. The declaration, as first drawn, sufficiently stated a cause of action by which to amend. The cause of action was not changed by the amendment, and no reason appears why the suit was not seasonably brought.

2. The uncontradicted evidence of the plaintiff was, that after the assured's death the defendants were notified thereof and requested to send blank proofs of death; that they replied that "no proofs were needed — that the policy had lapsed for non-payment of premiums"; and in response to a second notification, they replied that they "had decided not to allow . . . claim for insurance." This evidence, if believed, would establish a distinct denial of liability and a refusal to pay, on the ground that the policy had lapsed, and would constitute a waiver of the condition requiring proof of death. Such a denial would be equivalent to a declaration by the defendants that they would not pay the insurance, though proof of death were furnished. Under such circumstances, to require the proof would be an idle formality, the observance of which the law does not deem necessary. Knickerbocker Life Ins. Co. v. Pendleton, 112 U.S. 696; 2 May Ins. (4th ed.), s. 469, and cases cited. It would seem, however, that the question whether the evidence establishes a denial of liability should be submitted to the jury. Perry v. Insurance Co., 67 N.H. 291, 296; Farmers' etc. Ins. Co. v. Moyer, 97 Pa. 84, 441.

3. The policy was issued in the state of New York, and the contract is governed by the laws of that state so far as they relate to its nature, validity, and interpretation. It is there held that proof of payment of the premium is not essential to the maintenance of an action upon a life insurance policy, even though it contains a provision that a failure to pay the premium when due shall render the policy void; that it is only when there is evidence of non-payment of premium, coupled with proof that the notice required by statute (Laws of New York, 1892, c. 690, s. 92) has been duly mailed to the assured, that a cause of action can be defeated; that a policy is valid until duly forfeited, and cannot be forfeited until the statutory notice has been given and the thirty days therein specified has elapsed without payment of the premium. Fischer v. Insurance Co.,167 N. Y. 178, 182, 183. It was therefore incumbent upon the defendants to establish these facts by competent proof, to entitle them to a verdict.

4. The statute in force when this policy was issued reads as follows: "No life insurance corporation doing business in this state shall declare forfeited, or lapsed, any policy hereafter issued or renewed, and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited, or lapsed, by reason of non-payment when due of any premium, interest, or installment, or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest, installment, or portion thereof, due on such policy, the place where it should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last known post-office address, postage paid by the corporation, or by an officer thereof, or person appointed by it to collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable. The notice shall also state that unless such premium, interest, installment, or portion thereof, then due, shall be paid to the corporation, or to a duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereon will become forfeited and void except as to the right to a surrender value or paid-up policy as in this chapter provided. If the payment demanded by such notice shall be made within the time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited or declared forfeited, or lapsed, until the expiration of thirty days after the mailing of such notice. The affidavit of any officer, clerk, or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy, shall be presumptive evidence that such notice has been duly given."

The plaintiff's exception presents the question whether the affidavit was admissible in evidence.

If the affidavit fully complied with the provisions of the statute, and would be competent evidence, in a suit brought in New York upon the contract, to prove that the required notice was duly mailed to the assured, it would not follow that it would be admissible for a like purpose in a suit brought in this state, if the statutory provision making the affidavit presumptive evidence of notice prescribes a rule of evidence, and is not a matter attaching to the rights of the parties under the contract; for if it relates to the procedure for enforcing the contract, it would have no extra-territorial effect. While it is the general rule that the law of the place where the contract is made governs the rights of the parties, it is also a general rule that the law of the place where the action is brought "controls the admission of evidence and prescribes the modes of proof by which the terms of the contract are made known to the court, as well as the form of the action by which it is enforced." Hoadley v. Transportation Co.115 Mass. 304; Baxter Nat'l Bank v. Talbot, 154 Mass. 213; Emery v. Burbank,163 Mass. 326; Miller v. Brenham, 68 N.Y. 83, 87, 88; Pritchard v. Norton,106 U.S. 124, 134; Yates v. Thompson, 3 C. F. 544, 586, 587; Don v. Lippmann, 5 C. F. 1, 14, 16; Bain v. Railway, 3 H. L. Cas. 1, 19; Sto. Conf. Laws, s. 634 a. But counsel have not argued this question, and, as the case may be disposed of upon other grounds, it is not decided.

An analysis of the statute shows that the notice therein required should state (1) the amount of the premium due on the policy, (2) the place where it should be paid, (3) the person to whom payable, and (4) that unless the premium then due shall be paid to the company or its agent authorized to collect the same, by or before the day it falls due, the policy and all payments thereon will become forfeited and void, except as to a right to a surrender value or paid-up policy. The statute also requires that the notice shall be duly addressed and mailed to the party insured, postage prepaid, at least fifteen and not more than forty-five days prior to the day when the same is payable, and makes the affidavit of the agent authorized to mail the notice, that the statutory notice has been duly addressed and mailed, presumptive evidence that the notice has been duly given.

Did the affidavit offered in evidence comply with the statute, and show that the defendants had duly addressed and mailed the statutory notice? It affirms that a notice was duly addressed and mailed, postage prepaid, to the assured, at least thirty and not more than forty-five days before the premium became due; that it stated when the premium would become due, and that unless it was paid the policy and all payments thereon would become forfeited and void. The pages of the register preceding the jurat, and which are a part of the affidavit, show the number of the policy, the date when the premium became due, the name of the assured, his post-office address, and the date of mailing; but failed to show that the notice stated the four requirements above enumerated. The affidavit therefore did not answer the requirements of the statute, and was incompetent testimony.

A statute conferring such privileges is to be strictly construed. It is in derogation of the common-law rules of evidence, and confers upon the company the privilege of making evidence for itself. Lord Brougham, in an opinion delivered in the house of lords construing a statute conferring similar privileges, said: "It is most important that everything should be done which the statute . . . requires to be done, and for this reason. A great privilege is bestowed by the act upon the company, neither more nor less than that of making evidence for itself. The books of the company are made evidence for the company, and, unless rebutted by counter-evidence, will be sufficient to warrant a verdict in each case. It must be admitted that this is a very great privilege, and an exception to the ordinary rules of evidence. By those rules, and the rules of common sense and justice, what a man writes is evidence against him, but not evidence in his favor; but here the proposition is reversed. . . . This is a great privilege, and in order to justify the exercise of it, the conditions on which it is given, namely, the provisions of the statute as to the making of these entries, must be strictly complied with; and I hold that it is much safer to consider each of those provisions as a condition precedent, as a provision imperative, and not merely directory, on account of the great importance of the privilege itself, and on account of its being an exception to all ordinary rules of evidence." Bain v. Railway, supra, 22.

And this court, in passing upon a similar question, said: "Such evidence is admissible only by virtue of the exception which this statute has created to the general rules of the common law; and statutes in derogation of the common law are to be strictly construed. . . . Whoever, therefore, would avail himself of the provisions of the statute in question, must show a full compliance with its terms." Wendell v. Abbott, 43 N.H. 68, 73.

The affidavit not being admissible, the defendants' motion for a verdict was properly denied.

This result renders it unnecessary to consider whether the evidence introduced at the trial entitled the plaintiff to go to the jury upon the question of payment. At a subsequent trial the question may not be raised; and if raised, the evidence offered may not be the same. That question will be seasonably considered when it is known what the evidence is.

Defendants' exception overruled.

WALKER, J., did not sit: the others concurred.