
    Addison D. O’Neill, Ex’r, App’lt, v. The Massachusetts Benefit Association, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Insurance (Life)—Place of contract.
    Where the application for a policy of life insurance is made in this state and the policy is received from the agent here, the place of contract is in this state and our courts have jurisdiction of an action thereon, although the policy states that it was signed and delivered in Boston.
    3. Same—Proofs of death—Limitation.
    Claimants under a policy of insurance are not required to perform impossible conditions. They are bound to use diligent efforts to comply with the stipulated conditions, but if prevented from doing so without fault or negligence on their part they are not precluded from recovering in a contested case.
    
      Appeal from, judgment entered on verdict of a jury directed in favor of the defendant, and from order denying motion for new trial on the minutes.
    • W. H. Hamilton, for app’lt; J. K. Hayward, for resp’t.
   Yan Brunt, P. J.

This action was brought to recover upon a policy of life insurance or certificate of membership issued by the defendant to the plaintiff’s testatrix.

The defendant is a Massachusetts corporation organized for the purpose of carrying on the business of life insurance and having' an office and place of business at the city of - New York, having: complied with the laws of this state in respect to foreign life insurance companies.

In June, 1887, one Agnes L Jones, a resident of this state, made an application in writing to the agent of the defendant at. the company’s office in New York city for a certificate of. membership. Upon this ■ application the defendant issued certain policies or certificates.

Some time prior to her death, which occurred on the 8th of July, 1889, an application was made by one O’Neil on behalf of the assured for a change in-one of these policies to the agent of the company at the company’s office in New York city, the loss to be made payable to her executors instead of her husband. The new policy was made out and dated in Boston, sent by mail to the agent here and by him mailed apparently to the assured and received after her death by her husband. Mrs. Jones left a will which was offered for probate in July, 1889, before the surrogate of New York county, and her husband filed objections to such probate. Thereupon a contest was had which resulted in a decision in August, 1890, and a decree for probate was entered on the 16th of September, 1890. Soon after the death of Mrs, Jones the plaintiff’s attorneys gave information to the defendant of her death, the fact of their being retained as attorneys by the-executors, the offering of the will for probate, their inability to find the policy among the papers, and their expectation of finding it in the possession of the husband, and asking that blanks be furnished for making out proofs of claim. Blanks were forwarded, and in July, 1889, they were sent to' the attending physician, Dr. Fowler, at Albany, N. Y., to fill out and return, which-he failed to do. 0

In the meantime a temporary administrator had been appointed, and proofs were sent to the defendant accompanied by affidavits showing the efforts made to get a certificate from Dr. Fowler, his refusal to furnish the same, and his assigning as a reason therefor the non-payment of his bill for attending Mrs. Jones. In answer the company "through its assistant treasurer replied: “ Your favor of the 4th is at hand. Inasmuch as the proof papers you sent us-are not in such form that we can act upon them, and you state that a decision of the fact in controversy is expected shortly, I will defer considering claim as presented until I hear from you again.”

Upon the termination of the contest over the will, the company were notified and were requested to make payment; and in reply stated that only partial proofs had been filed, and that the certificate of the physician was absent, and enclosing two blanks for such certificate to be filled up, the letter reserving all rights which had been acquired, and informing the attorneys of a clause in the policy to the effect that no claim could be maintained in law.after the expiration of one year from the date of the death of the member. To this letter the attorneys replied that the policy had not come into their hands, and they were surprised to hear that there was such a clause in the policy. The plaintiff not being able to get a certificate from Dr. Fowler, commenced this action by theservice of a summons upon the superintendent of insurance. The defendant appeared and moved to have the case transferred to the circuit court of the United States, but was unsuccessful. Upon the trial the plaintiff proved substantially the foregoing facts.

At the end of the plaintiff’s case, the defendant’s counsel moved to dismiss the complaint, upon the ground that the court lacked jurisdiction, because it appeared that the plaintiff resides in New Jersey, and the defendant resides in Massachusetts, and the cause of action arose in Massachusetts; and also upon the ground that the cause of action had not matured. This motion was granted, and the complaint dismissed; and from the judgment thereupon ■entered this appeal is taken.

It is to be noticed that the case shows that the complaint was dismissed, and that the postea to the judgment-roll recites that a verdict for the defendant was directed. In the absence of the clerk’s minutes it seems to be impossible to tell which is right By what authority the clerk entered the judgment in question in the absence of the minutes of the trial we are unable to imagine.

Thedefense claimed, of want of jurisdiction, seems to be one of -the most unconscionable that any corporation has heretofore had the temerity to assert. The defendant, a foreign corporation, by the courtesy of the laws of this state, comes into this state and does its business here upon the condition that it subjects itself to the laws of this state, and upon the condition that process may be served in this state which shall be binding upon it, and having done every particle of the business in connection with the claim in this state, when called upon to pay, asserts that, it being .a foreign corporation, the courts of this state have no jurisdiction as the contract was delivered in Boston.

The application for the policy in question was made here; the policy was received here from the agent of the corporation here, and all the business was done within this state.

But it is claimed that because the testatum clause of the policy says that it was signed and delivered in Boston, that, therefore, the contract was made in Boston. We hardly think that the courts of this state will permit a foreign corporation doing business in this state to escape payment of its just obligations under so frivolous a plea.

A very considerable space in the argument of the questions presented upon this appeal is devoted to the one year limitation con-tamed in this policy. It does not seem necessary to discuss this proposition, because no such point was made upon the trial. It is; true the defense was set up in the answer, but it was not one of the grounds upon which the complaint was dismissed, the grounds, being want of jurisdiction and that the cause of action had not-matured, which latter claim was founded upon the failure to present the physician’s certificate.

It does not seem necessary to discuss the proposition that when,, thi’ough no fault upon his part, a party having a claim against, another is unable to present the particular kind of proof which the contract between them calls for, that the failure may be excused. As for example, in actions upon building contracts, it has become familiar law that although the contract requires the presentation of an architect’s certificate in order to entitle the builder to payment, yet if the certificate is unjustly withheld by the architect a recovery may be had without its production. So= in the case at bar, although the contract requires the production of the doctor’s certificate, yet if he unjustly refuses to give such evidence and proper effort is made to obtain the same, we see no-reason why the same reason should not apply and the party be excused from its production.

Some point is made in regard to the failure to produce the certificate of Dr. White. But Dr. White was not the physician who attended the deceased in her last illness, and Dr. Fowler was; and it appears that application was made to Dr. Fowler for his-certificate and he refused to give the same, assigning as a reason the non-payment of his bill.

The claimants under a policy of insurance are not required to-perform impossible conditions. They are bound to use diligent, efforts to comply with the stipulated conditions, but if prevented from doing so without fault or negligence on their part, they are not thereby precluded from recovering in a contested case.

Applying this principle to the case at bar it is evident that Dr. Fowler refused to give this certificate unjustly and improperly. The defendant was acquainted with all the facts find there is no-intimation or proof that the certificate was not procured, by the-plaintiff because of fear of what would be the nature of its* contents.

We think under all the facts the plaintiff made out a prima fade case and the motion to dismiss should have been denied.

The judgment should be reversed and a new trial ordered, with, costs to appellant to abide the event.

O’Brien and Lawrence, JJ., concur  