Osborne v. Home Life Insurance

VAN DYKE, J. This action is upon a life insurance policy for five thousand dollars, issued by the defendant, a Hew York company, in Hew York, October 4, 1888, insuring the life of the husband of the plaintiff, Elihu C. Osborne, for five thousand dollars, made payable to the plaintiff. The policy called for the payment of an annual premium of one hundred and seventy-four dollars and seventy cents. On issuing the policy this sum was paid, and the first and second annual payments of the same amount were made. The complaint sets out the policy and also incorporates the nonforfeiture law of the state of Hew York, and alleges that the defendant never served upon the said Elihu C. Osborne, the insured, the notice required by said law, and also alleges the death of the insured January 21, 1895, and that subsequent thereto the defendant company expressly disclaimed and denied any'and all liability under and by virtue of said policy, arising from the death of said Elihu C. Osborne, on the ground that the third annual premium called for by said policy had not been paid. The answer does not deny that notice was not given, [612]in pursuance of said law, to the insured, nor does it allege that notice was given to the plaintiff, the beneficiary, or at all. Findings and judgment wenf for the plaintiff in the court below for the sum specified in the policy, less the unpaid premiums and interest thereon.

It is contended on the part of the appellant that the plaintiff, and not the deceased, was the person whose life was assured, and that the notice required by the Few York law should have been served upon her, she being the party for whose benefit the insurance was made. The language of the law in reference to the notice is: “Shall be duly addressed and mailed to the person whose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company.” The language of the policy in this case is, “does assure the life of Elihu C. Osborne,” and therefore he was the “person whose life is assured.” The law might have been enacted as claimed by the appellant so as to require notice to the beneficiary, but it clearly does not—but to the person whose life is assured. The la,w in question has been construed and applied repeatedly by the highest court in the state of Few York adversely to the contention of the appellant. Appellant, however, is not satisfied with these decisions, but seems to rely upon the dissenting opinions of the supreme court in an earlier case than those hereafter referred to, claiming that such dissenting opinions are based on better reasons and sounder law. This court, however, will prefer to follow the decisions of the highest court, particularly in the construction of the statutes of its own state, and not the dissenting opinions of the lower court. In Baxter v. Brooklyn Life Ins. Co., 119 N. Y. 450, the court, in construing the statute in question (Laws 1876, as amended in 1877), say: “The statute above referred to (Laws 1877, c. 321) declares that no life insurance company doing business in this state shall have power to declare forfeited or lapsed any policy thereafter issued by reason of nonpayment of premium, unless, after it becomes due, a notice stating the amount of such premium, 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 assured, at his last known postoffice address, postage paid by the company, and further stating that, unless the premium then due shall be paid to the