Morgan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 87 This is an appeal taken by defendant from a judgment rendered by the superior court of the city and county of San Francisco in favor of the plaintiffs and against the defendant, upon a policy of life insurance issued by defendant to Elizabeth A. Morgan upon the life of her husband, Orson A. Morgan. To properly discuss the questions of law involved in this case a somewhat extended statement of the facts will be necessary. They are as follows: On March 26, 1866, the appellant insurance company in the state of New York issued to Elizabeth A. Morgan, mother of respondents, a policy of insurance on the life of her husband, Orson A. Morgan, father of respondents. By the terms of said policy appellant agreed to pay $5,000 to Elizabeth A. Morgan, or assigns, or in case she should die before Orson A. Morgan then to the children of said Orson A. Morgan. Being unable to pay the premium due on March 26, 1871, Mr. and Mrs. Morgan on or about that date requested one Dayton S. Morgan, since deceased, to pay the same, in order to keep and preserve said…

This is an appeal taken by defendant from a judgment rendered by the superior court of the city and county of San Francisco in favor of the plaintiffs and against the defendant, upon a policy of life insurance issued by defendant to Elizabeth A. Morgan upon the life of her husband, Orson A. Morgan.

To properly discuss the questions of law involved in this case a somewhat extended statement of the facts will be necessary. They are as follows:

At the time of the death of Orson A. Morgan the sums advanced by Dayton S. Morgan and his personal representatives in payment of said premiums, together with interest thereon, largely exceeded the face of said policy.

When the policy of insurance was executed and delivered, and at the time of the assignment thereof, Elizabeth A. Morgan and Orson A. Morgan were residents of the state of New York. Dayton S. Morgan at all the times mentioned herein resided in the said state of New York, and the policy of. insurance since its delivery has always been in that state in the possession of Dayton S. Morgan and his personal representatives.

At the time of the death of the assured all his children before mentioned were and ever since have been…

In their petition for a rehearing of this cause the respondents confine themselves to a criticism of the doctrine asserted by the court of appeals of New York in the case of Morgan v. Mutual etc. Ins. Co., 189 N. Y. 451 , [ 82 N. E. 438 ], wherein it was held that they were brought within the jurisdiction of the courts of that state by constructive service of summons. If it be conceded that their argument on this point is destructive of the doctrine assailed, it does not follow that the judgment of the district court of appeal is erroneous, for it does not rest alone upon the estoppel pleaded in the supplemental answer—it is fully sustained by the allegations (stipulated to be true) of the third defense set up in the original answer. It was upon these identical facts that the courts of New York correctly held that the appellant must pay the amount due on the policy to the representatives of those who, as assignees, had kept it alive by payment of the premiums, amounting with interest to more than the sum insured. Whether the New York decisions sustaining their jurisdiction were correct or not, it is clear that as to the merits of the controversy the final decision there was…