New York County NyArchives Court.....Bristol, John Vs. Equitable Life Assurance Society Of U S 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

JOHN I. D. BRISTOL, Appellant, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE 
UNITED STATES, Respondent.

Suggestion of a new system of soliciting life insurance — when it does not 
possess any property rights protected by law.

An action was brought to obtain an accounting from the defendant and a recovery 
of a suitable sum of money to compensate the plaintiff for indicating to the 
defendant, through its president, a new system of soliciting life insurance 
which, after a confidential disclosure thereof to the president of the 
defendant, the complaint alleged had been adopted by the defendant. The details 
of the new scheme or system of transacting the business of soliciting life 
insurance was contained in a letter, annexed to the complaint as an exhibit, 
which was addressed to the president of the defendant. After stating at some 
length the success of the plaintiff's new system in other States and with other 
companies, the letter stated, in substance, that underlying the whole system was 
a common-sense plan of advertising by calling the attention of large insurers to 
the company and the policies issued by it, and inducing business men to insure 
largely even when naturally opposed to life insurance; that many agents had 
tried to work the plaintiff's method from reading letters or circulars, but that 
very few of such attempts were successful; and also added, that if "the 
Equitable would adopt this system, and the writer with it," he thought a marked 
increase of business, would inevitably follow. 

It did not appear that the plaintiff had copyrighted the above idea and confined 
it to a definite and certain combination of words or phrases which might be 
printed and publicly declared to be his own system of business, nor that he had 
patented or registered the mode of introducing the matter of life insurance to 
the public.

Upon an appeal from a judgment sustaining a demurrer to the plaintiff's 
complaint: 

Held, that the ideas disclosed by the complaint, and the letter attached thereto 
as an exhibit, did not possess any property rights which were susceptible of 
protection under our system of law.

Appeal from a judgment dismissing the complaint herein, entered in the office of 
the clerk of the city and county of New York on April 9, 1888, upon an order 
made at the New York Special Term sustaining a demurrer interposed to the 
complaint, on the ground that the same did not state facts sufficient to 
constitute a cause of action.

Raphael J. Moses, Jr., for the appellant. 

C. B. Alexander and E. L. Richards for the respondent. 

Macomber, J.:

The complaint is filed to obtain an accounting from the defendant and a recovery 
of a suitable sum of money to compensate the plaintiff for communicating to the 
defendant, through its president, a new system of soliciting life insurance, 
which, after a confidential disclosure thereof to the president of the 
defendant, was alleged in the complaint to have been adopted by the defendant. 
The details of the new scheme or system of transacting the business of 
soliciting life insurance is said, by the complaint, to be contained in Exhibit 
A, which is annexed thereto, and, consequently, for a thorough examination of 
the case, that document requires close inspection.

This exhibit consists of a letter (dictated) bearing date February 4, 1885, 
addressed to the president of the defendant. After stating, at some length, the 
success of the plaintiff's new system in other States and with other companies, 
it says:

"Underlying the whole system of work is a common-sense plan of advertising 
(without which nothing really succeeds in this country), calling the attention 
of large insurants to the company and the policies issued by it, and inducing 
business men to insure largely, even when naturally opposed to life insurance. 
Of course, this system takes some money, but this can be partially taken from 
the ordinary advertising expenses — newspaper advertising and tons of printed 
matter, much of which is really useless. Capital and intelligence is the basis 
of every large application. The commercial agency reports, etc., are the guides 
to these men. A letter worded just right and not too long, mailed from the right 
place, from a party having just the right title, and written on a letter-head 
arranged in just the proper way, is the greatest advertisement a company can 
possibly have, if carefully followed up. They do not attract the attention of 
rival agents, interest just the proper party, and a thousand dollars expended in 
this way will secure many times the amount of business that any other method of 
advertising possibly can, especially as it is only the preliminary work for an 
agent's call." 

* * * "Propositions follow under this method: An agent calls, is received by a 
gentleman like a gentleman, and a very large application is frequently written 
on the first interview. The insurant becomes a friend of the company and of the 
agent. The ratio of losses on such business is small, and untaken policies a 
rarity, from the reason that the applicant has not been 'bored' into taking what 
he does not want, but has been carefully worked so as to desire what he has 
received; a dignity is thus given to the business that no other method gives, 
and men of dignity and character can follow it with pleasure and satisfaction. 
Many agents have tried to work my methods from seeing letters or circulars, but 
very few such attempts have been successful. From a thousand letters for dates 
of birth, for instance, they have received less than three or four per cent of 
replies, and many of these have been 'jokes,' but when I have carefully 
instructed the agents how to use a series of letter blanks for responses, etc., 
a very different result immediately manifests itself. I inclose, as proof of 
this, a couple of letters from the Cleveland general agent of this company. A 
stronger commendation of my methods of work could not be well given; you will 
notice from the spelling of these letters that the agent is not highly educated, 
which is still stronger proof that agents can successfully work these plans 
after being taught." * * * "When the applicant is not secured on the first 
interview or attempt, and had been given up for the time, another opportunity 
comes with every year on 'change of age.' This takes another complete system of 
work, and the results have been in every way favorable; a very large proportion 
of the business at my general agency being now secured in this way. Sometimes a 
circular to fit peculiarities of the business is necessary. 

I have written a great many, and inclose one of which over a million and a half 
have been printed. They have been extensively used by many of your general 
agents. If the Equitable would adopt this system, and the writer with it, I 
think a marked increase of business would inevitably follow. It would be 
necessary that I should be some sort of an officer of your company on a salaried 
position, with, perhaps, a percentage on the work secured under my schemes. 
Perhaps that $75,000 per year you mention could be realized. Would not care to 
take a general agency, as I have a very nice business under way now. You can 
think this all over, and when you see me return the inclosed letter and tell me 
what your insurance intuitions indicate. I am to call for the photo of Dr. 
Bristol, you know, and that will give you an opportunity to do this. In the 
meantime I need hardly to say that this letter must be considered of the most 
confidential nature.

" Very respectfully yours.
" JOHN I. D. BRISTOL."

It does not appear that the plaintiff has copyrighted the above idea and 
confined it to a definite and certain combination of words and phrases which 
might be printed and publicly declared to be his own system of business, nor 
does it appear that he has patented or registered the mode of introducing the 
matter of life insurance to the public. He stands, therefore, solely upon the 
proposition that he is the possessor of an idea which, when combined with skill 
in any soliciting agent, with or without a disposition on the part of the 
persons solicited to be insured, is of great value to the party to whom it may 
be divulged.

The learned counsel for the plaintiff takes this view of the case, for he says 
in his brief "We possess as absolute a right over our thoughts as we have over 
the brain cells whose rhythm gives to the sensational impulses the thought form, 
and whether we use the thought form to mold words with our mouth or bricks with 
our hands, the product is equally our property." If this proposition were 
perfectly sound, there would be no occasion for the existence of either 
copyright or patent-right law, which is designed to secure not the ideas but the 
products of ideas of inventive genius, and that, too, for only a limited period.

It is difficult to conceive how a claim to a mere idea or scheme, unconnected 
with particular physical devices for carrying out that idea, can be made the 
subject-matter of property. So long as the originator of the naked idea, 
whether, germinating under the laws of metaphysics, it be regarded as Platonic 
or Cartesian in its make-up, keeps it to himself, it is his exclusive property, 
but it ceases to be his own when he permits it to pass from him. As the 
ingenious counsel for the defendant say, it is like commercial paper, it passes 
by delivery. Ideas of this sort in their relation to property may be likened to 
the interest which a person may obtain in bees and birds, and fish in running 
streams, which are conspicuous instances of feroe naturoe. If the claimant keeps 
them on his own premises, they become his qualified property, and absolutely his 
so long as they do not escape. But if he permits them to go he cannot follow 
them. It is not necessary to cite authorities under this head because the 
principle is elementary.

It is evident, however, that it was not to the defendant alone that the 
plaintiff made a disclosure of his ideas, for he says: "Many agents have tried 
to work my methods from seeing letters or circulars, but very few such attempts 
have been successful." It seems, therefore, that it is not the use of the plan 
adopted, but the successful use of it, upon which the plaintiff relies for a 
cause of action. If the defendant, in adopting this system, had taken its author 
with it, as the plaintiff proposed, then his scheme of exploiting life insurance 
would have assumed a tangible form, and, in the absence of an agreement fixing 
the value thereof, he would be entitled to such compensation as his services 
were actually worth; but that indispensable part of the scheme or system was not 
adopted by the defendant, and hence no cause of action has accrued to the 
plaintiff.

On the whole, we do not think that the ideas disclosed by the complaint and the 
exhibit thereto possess any property rights which are susceptible of protection 
under our system of law. And yet, though it is clear that we have no statute or 
common law which prohibits the plaintiff from "inducing business men to insure 
largely, even when oppossed to life insurance," if considerations of public 
policy are to be regarded, the plaintiff, while violating no law, would render 
himself open to the criticism of the Augustan poet — Invitum qui servat, idem 
facit occidenti. 

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurred. 

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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