Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-05-24
A LIFE INSURANCE CASE
Supreme Court Decides Interesting
Life Insurance Suit Appealed
from Barnes County.
Policy Delivered, But Payment Re.
fused Because Insured was Not
In Good Health.
Decision Sends the Suit Back to the
District Court For New Trial
of Issues.

An interesting decision has been
rendered by the supreme court in the
case of May V. Thompson VS.. the TRAY
elers Insurance Company, appealed
from the district court of Barnes
county. The facts in the case show
that on the 23d day Of August, 1900,
the plaintiffs husband, Horace S.
Thompson, made an application for a
policy of life insurance in the defend
ant company for the sum of $4,000.
On the 18th day of September, follow
ing, the policy vas issued to said Hor-
ace S. Thompson pursuant to such APP
plication and sent to the local agent
of the company at Valley City, N. D.,
and received by said agent on Septem-
Der 18th. On the 18th day of Sep
TENDER, the policy was delivered to- one
Tracy for said Thompson. upon pay
ment by him on that day, through said
Tracy, of the premium amounting to
the sum of sos 81. The policy was
1lduS pay dUlC u 'ClC p1oiIIAIA III tnS
event of the death of said Thompson.
He died on September 2Sth, 1900.
Proofs of death were made on October
Is, 1900. Payment of the policy was
refused by the company and suit fol-
lowed. The company refused to pay
on the ground that the insured was
not in good health when the first prem
ium was paid. g..
In the lower court the plaintiff was
given Judgment. The supreme court
in an opinion written by Judge Nor
gan. sends the case back for a new
trial in the following syllabus:
A life insurance policy contained the
following provision: This policy
shall not take effect unless the first
premium is actually paid while the in
sured is in good health" The policy
was issued on September 4. 1900, upon
an application dated August 23d. The
policy was delivered to a third party
on September 18th, for delivery to the
insured at the request of the insured.
| On September 2Sth the insured died
from a sickness claimed to have existed
before September 18th. The premium
paid on September 18TH to the agent
was received at the main Office on Oc-
tober 18th. The company had no no
tice until about October 18th, and after
insured's death, Of any change in in
sured's health since he made his ap-
plication for insurance. Held, that
the company is entitled to interpose
such defense without a tender or pay
ment back of the premium. +;
Held, further, that receipt and re-
tention of premiums with knowledge
of forfeiture of policy or of defense
against an action on the same is ordi-
narily a waiver of such forfeiture or
defense. ~.
Held, also, that the rule in equity
actions to cancel or annul contracts
that the party moving must return
everything of value received pursuant
to the contract. is not applicable to the
facts of this case.
On the trial an answer was allowed
to the following question duly objected
to-: ibid the defendant corporation
/ s. " or any one TO,
them pay back to you the $50 .24?'
Held, prejudicial error for which I
t new trial will be granted.
Appeal from the district court o