61 Ala. 163 | Ala. | 1878
The errors assigned are numerous,, relating to questions of pleading, rulings of the court below on the admission of evidence, and in giving and refusing instructions to the jury. It is not necessary to consider them separately, for in view of the evidence, there is a radical error in many of these rulings, and the appellee who was plaintiff has no right of recovery in any aspect of the case.
In the absence of statutory prohibition a contract of insurance may be made by parol, or there may be a parol agreement to insure which a court of equity will enforce. — M. M. D. & M. Ins. Co. 13. McMillan, 31 Ala. 711; Relief Fire Ins. Co. v. Shaw, 4 Otto, 574; Bliss on Life Ins. 183, § 138; May on Ins. 13, § 14. "Whether by parol, or in writing, as in all other contracts, the mutual assent of the parties to all the elements and terms of the contract, is esential to its existence. If the parties have not agreed on the subject of insurance, the limit and duration of the risk, the perils insured against, or the hazards insured, the rate of premium, and the amount to be paid in the event of a loss, or upon any other element or term which may be peculiar to the particular contract, whatever may have been the negotiations or propositions passing between them, these have not reached the form and obligation of an existing contract.
The contract of insurance may like other contracts be effected through an agent, and the existence of a contract complete in itself, often depends on the authority with which the agent is clothed. Whatever may have been the authority of the agent with whom the negotiations in the present case were conducted, he claimed to exercise, and exercised no other power, than to receive the application of the deceased, for a policy of insurance on his life, the percentage of the premium, and fees for a policy, and note for the remainder of the premium, to be forwarded to his principal, the appellant. If he had any-other authority than to receive the ap~
The application for insurance, was no more than a proposition from the deceased, to the appellant, to enter into a contract of insurance. It has not in it a word proceeding from the appellant. It was the act of, and proceeded from the deceased alone, and it remained his act, a mere proposition for a contract, until the appellant assented to it, and agreed to accept the risk on the terms stated. — Hieman v. Phœnix Mut. Ins. Co. 17 Minn. 173; Schwartz v. Germania Life Ins. Co. 18 Minn. 448; Wallingford v. Home Mut. Fire Ins. Co. 36 Mo. 46; Ins. Co. v. Young, 22 Wall. 83; Cotton States Life Ins. Co. v. Scurry, 50 Geo. 48.
The receipt given by the agent to the deceased, at the time of receiving the application, indicates the real character of the transaction. Neither party then contemplated a contract complete in itself, or supposed there was more than a proposition for a contract. It is stated in express terms in this instrument, that the deceased has made an application for a policy of insurance on his life, for five thousand dollars, the payment of a certain part of the first annual premium, interest and policy fees, in cash, and the execution of the note of the deceased for the remainder of the premium. It is further stated, the deceased was to be considered insured from the date of the receipt, if said application shall be approved and accepted by said company, in which case a policy shall be issued to him and this receipt surrendered; but if said application should be rejected, then the amount named, and the note given shall be returned to said George Blakely, and this receipt shall become null and void.
The receipt discloses, as we have said, the true character of the transaction, a proposal for a contract to an agent, the agent reserving to his principal, from abundant caution, the absolute and unqualified right of acceptance or rejection. If the proposition was accepted, a policy, the highest and best evidence of the contract, was to follow the acceptance. The policy was to have relation to the date of the receipt, if the proposal was accepted, and this is the only element of contract, so far as the appellant is concerned, to be found in the transaction, and that depends upon the acceptance of the proposition. If it is not accepted, the receipt by its own
The fact is undisputed, that appellant did not accept, but rejected the application. It is however insisted the rejection came too late — that the appellant was bound to accept or reject the application within a reasonable time, and if rejected, notify the deceased thereof, returning the money advanced by him, and his note. The delay of the appellant then, would take the place of the assent which is the essential ingredient of a contract. We are not aware of any authority for the proposition, that mere delay — mere inaction, can amount to an acceptance of a proposal to en.ter into a contract. The opposite, is the true doctrine, that if no answer is given to a proposition for a contract, within a reasonable time, the proposition is regarded as withdrawn. The principle is stated in Hallock v. Conn. Ins. Co. 41 Conn. 268: “ A contract arises when an overt act is done, intended to signify an acceptance of a proposition, whether such overt act comes to the knowledge of the proposer or not, and unless a proposition is withdrawn, it is considered as pending until accepted or rejected, provided the answer is given in a reasonable time.”
If the appellant was dilatory in acting on the proposal, the deceased could have quickened its diligence, by demanding prompt, action; or, if not assenting to the delay, he could have retracted his proposal, and reclaimed the money he had advanced and his note. He had no right, without an inquiry as to the cause, without any action on his part, to rely on the supineness of the appellant, no greater than his own, as an acceptance of the proposal. — Ins. Co. v. Johnson, 23 Penn. St. 72; Bentley v. Columbia Ins. Co. 17 N. Y. 421; Flanders on Insurance, 108.
It is also insisted, that the rejection of the application was without cause, and that though the proposition was subject to the approval of the appellant, yet the necessary implication is, that the approval would be given unless good cause existed for withholding it. There are authorities, holding, that if an agent is authorized to make contracts of insurance, and he makes a contract subject to the approval of the principal, that the principal can not without sufficient cause withhold his approval. — Flanders on Insurance, 10 7-8, citing Ins. Co. v. Webster, 6 Wall. 192; Palm v. Medina Ins. Co. 20 Ohio, 529; Lightboy v. N. Am. Ins. Co. 23 Wend. 18; Parkins v. Wash. Ins. Co. 4 Cowen, 645. A marked and
In view of all the facts the jury should have been instructed, that the appellant had not entered into any contract of insurance, or any agreement to insure the life of deceased; that the transaction, until the proposal of the deceased was rejected, was merely preparatory to, or initiatory of a contract, and was terminated absolutely by the rejection by the appellant of the proposal, imposing no duty or obligation on the appellant, other, than on demand, to return the money paid to its agent, and the note of the deceased. — Real Estate Ins. Co. v. Roessle, 1 Gray, 336.
The rulings of the Circuit Court, were inconsistent with these views, and the judgment is reversed and the cause remanded.