Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
This suit was brought by the plaintiff, a resident of New York, against the AEtna Life Insurance Company, a Connecticut corporation, doing business in New York, to recover as the beneficiary named in the policy, the principal sum of a policy of life insurance for $5,000 dated September 9, 1929, and issued by the defendant on the life of her husband, Samuel Fauer.
For the purposes of this action, though for such purposes only, the parties have agreed as to all essential facts. They are as follows:
When the policy was issued to Samuel Fauer, who was a resident of New York, it was written on the basis of the yearly payment of premiums. The first such premium was paid on October 21, 1929. The next premium was due September 9, 1930, but a grace provision of thirty-one days prevented a lapse for nonpayment of premium until October 10, 1930. No notice as to the September 9, 1930, premium was sent the insured. On October 8, 1930, the insured and the defendant agreed, in accordance with the terms of a written instrument they then executed, to change the method of premium payment from an annual to a monthly basis. The insured thereafter paid each monthly premium up to and including that for the month of April, 1931. The defendant sent him a written notice more than fifteen days and less than forty-five days before the May 9, 1931, premium was due, but neither that nor any subsequent premiums were paid.
On February 9, 1931, the insured became totally and permanently disabled. No notice was sent to the defendant until after the insured died. His death occurred October 27, 1931, and before he had attained age 60. On November 7, 1931, attorneys in New York representing the plaintiff wrote a letter to the defendant in Hartford, Conn., which follows:
"AEtna Life Insurance Company, Hartford, Connecticut
"Gentlemen: Would you kindly let us know by return mail the status of the above numbered policy. We enclose proof of death of Samuel Fauer who has died after a lingering attack of cancer which lasted about a year, we are informed.
"Please inform us immediately whether we are entitled to anything.