20 S.D. 103 | S.D. | 1905
This was an action by the plaintiff to recover of the defendant the sum of $1,000 due her upon an alleged contract of insurance. Verdict and judgment being in favor of the defendant, the plaintiff has appealed.
It is disclosed by the record that on the 28th day of January,, 1903, the plaintiff’s husband made a written application to W. B. Fuller, the then soliciting agent of the defendant at Sioux Falls, for a policy of insurance for the said amount upon the 20-year payment plan. The application contained a clause which reads as follows : “This application, made to the Mutual Life Insurance Company of New York, is the basis and part of a proposed contract for insurance, subject to the charter of the company and the laws of the state of New York. I hereby agree that all the following statements and answers, and all those that I make to the company’s medical examiner, in continuation of this application, are by me warranted to be true, and are offered to the company as a consideration of the contract, which I hereby agree to accept, and which shall'
The plaintiff and appellant seeks a reversal of the judgment upon the ground that the court erred in overruling plaintiffs objections to certain testimony given on the part of the defendant and in sustaining defendant’s motion to direct a verdict in favor .of the defendant, and in denying plaintiffs motion for a new trial. On the trial the respondent offered in evidence Exhibit D, being the receipt for $5 dated January 28th, a copy of which has been heretofore set forth, signed by said Fuller. On cross-examination.the witness Fuller was asked the following question: “Is this [Exhibit D] the binding receipt referred to in this application?” To which he answered: “This is the receipt.I gave to Bowen.” “Is this what' is known as a binding receipt?” The appellant objected to this question as incompetent and not cross-examination, and not a matter that can be explained. The instruments, the contracts, are all in writing, and the interpretation is for the court. If any ambiguity exists, it is for the jury. This objection was overruled and exception taken.- The witness answered: “This is not the receipt that we consider a binding receipt." “I show you Exhibit 1 and ask you to explain that instrument.” Same objection and ruling. “This paper I have is not an • executed paper. It is a blank that was used — what we term a binding receipt. It was used in cases where the frill premium was paid. This receipt- was used in case the premium was paid when the application was signed.” It will be observed in the statement of facts that Fuller, at the end of the applicant’s application, made the following statement: “I have issued binding receipt No.-on account of this policy contract. W. B. Fuller, Soliciting Agent.” Exhibit 1 referred to, and which he designates as a 'blank binding receipt, reads as follows: “The Mutual Fife Insurance Co. of New York. $-. No. 108,675. -, 189 —. Received from -, of -, -.— .dollars in cash, being an amount equivalent to the first-: — • annual premium on a proposed insurance for $ — --on the life of-of--, for which an application is this clay made to the Mu
The appellant objected to the admission in evidence of this exhibit, as irrelevant to any of the issues in the case and incompetent, and cannot be received to vary or change any of the terms of the contract. The appellant insists that the application of Bowe'n, with the statement added thereto, made by Fuller, that he had issued a binding receipt on account of the policy, could not be varied or contradicted by oral evidence, and that the fact that the company had another form of receipt which they might have issued, but which it seems was not used in this case, was not material, and that it was not competent for the witness to contradict his own written statement that he had issued a binding receipt on account of the company. It is a well-settled rule that parol contemporaneous evidence is inadmissiblfe to contradict or vary the terms of a valid written instrument. This rule is embodied in our Code in the following terms: “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stip
But, assuming that the court erred in the admission of the evidence above referred to, a further question is presented, and that is, did the rulings of the court in the admission of this evidence constitute reversible error? We are inclined to take the view that it did not, for the reason that, disregarding the objectionable evidence, a proper construction of the contract entered into between the parties shows that the court was clearly right in directing a verdict in favor of the defendant. The application and statement of the as-
The contention of the appellant that the soliciting agent, Fuller, held the policy as the agent of Bowen is clearly untenable, as is also the contention that the receipt of the first payment of premium contained in the policy is acknowledged, and therefore conclusive upon the company. No such construction can reasonably be given to the application, receipt, or policy. Of course, a life insurance company, in making out its policies, fills up all blanks, and, if the premium has not been actually paid in advance forwards the policy to its agent, to be delivered by him to the insured upon the payment of the premium, and until the premium is paid the policy is held by the agent as the agent of the company anti not the agent of the insured. Heiman v. Phœnix Mut. Life Ins. Co., 17 Minn. 153; Marland v. Insurance Co., 71 Pa. 393; Union Cent. Rife Ins. Co. v. Pauly, 8 Ind. App. 85, 35 N. E. 190; Markey v. Mut. Ben. Life Ins. Co., 118 Mass. 178; Lee v. Guardian Life Ins. Co., 15 Fed. Cas. 158; Hoyt v. Mutual Benefit Life Ins. Co., 98 Mass. 539; Myers v. Liverpool & London & Globe Ins. Co., 121 Mass. 338; Dinning v. Phœnix Ins. Co., 68 Ill. 414; Mut. Life Ins. Co. of New York v. Sinclair, 71 S. W. 853; Mutual Life Ins. Co. of New York v. Lucas, 79 S. W. 279.
The instruments will not bear the construction contended for by the appellant that it was the intention or the understanding of the parties that a policy of insurance should be issued binding upon the company upon the payment of the deposit of $5. As shown by the receipt signed by Fuller, it was simply intended to secure the company against the expenses, of a.medical examiner, in case the assured neglected or failed to make the policy and pay the balance of the premium stipulated therein. It is clearly apparent from the
It seems to be the general rule that where a written application for a policy of life insurance, duly signed by the applicant, provides that the application is to become a part of the contract of insurance applied for, and that the contract is not to take effect until the first premium is paid, and that the policy issued thereunder should be accepted subject to the conditions and agreements therein contained, a policy will not take effect until the premium is paid and the policy issued. The applicant must be presumed, in the absence of fraud, to have read the application and the receipt issued by the agent, and have been thereby advised that the policy could not issue or take effect until the first premium is paid thereon in full. He in effect covenants directly with the company that the policy is not binding until the first premium is paid in full, and he is chargeable with the notice, contained in the receipt given him, that the agent, whether general or local, could not without express authority waive such payment and deliver a valid policy. Russel v. Prudential Ins. Co. of America, 176 N. Y. 178, 68 N. E. 252; McClave v. Mut. Reserve Fund Life Ass’n, 55 N. J. Law, 187, 26 Atl. 78; Equitable Life Assurance Society of U. S. v. McElroy, 49 U. S. App. 548, 83 Fed. 631, 28 C. C. A. 365; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335; Mutual Reserve Fund Life Ass’n v. Simmons, 107 Fed. 418, 46 C. C. A. 393; Ray v. Security Trust & Life Ins. Co. 35 S. E. 246; Anders v. Life Insurance Clearing Co., 62 Neb. 585, 87 N. W. 331; Bluegrass Ins. Co. v. Cobb, 109 Ky. 339, 58 S. W. 981; Manhattan
The case of Russel v. Prudential Ins. Co. of America, supra, decided by the Court of Appeals of New York in 1903, was very analogous to the case at bar. In the statement of facts in that case it appears that in December, 1899, the plaintiff made a written application for the policy in suit, the material portions of which are quite similar to the application made by the assured in the case at bar, and in J¡he application it is provided and agreed that the policy therein applied for shall be accepted subject to the conditions and agreements therein contained, and such policy shall not take effect until the same shall be issued and delivered by the company and the first premium paid thereon' in full. The assured in that case had died before the first premium was paid, although the policy was delivered. The receipt for the first premium was signefd by the general agent and delivered to the insured, and by him handed to the subagent, who was to hold it until the payment was actually made. At the close of the evidence the defendant moved the trial court to instruct a verdict in favor of the defendant. This was denied by the trial court, who said, in denying the motion: “The one question I am going to submit to the jury is this: Whether on January 6, 1900, Mr. Tennant, at the .time he delivered the policy to Mr. Russel, agreed that the time for payment of the premium should be extended, as is claimed by plaintiff, and that the policy could in the meantime remain in force. That is the only question I am going to submit to the jury. If they find in favor of the plaintiff upon that state of facts, the verdict will be for plaintiff. If they find for de
It will be noticed that by the statement of facts and b3r the rulings of the trial court and by the decision of the Court of Appeals that that case was much stronger in favor of the plaintiff than the case at bar, as the policy in that case had been actually delivered and a receipt for the premium actuall)' executed by the general agent of the company; and it is not affirmatively shown that the assured was notified, otherwise than by the stipulations in the policy, that no agent of the company, other than the president or secretary, was authorized to change or alter any of the terms of the application or policy, as was done in the case at bar, by the receipt issued by Fuller to the assured. We are of the opinion, therefore, that the court was clearly right in directing a verdict in favor of the defendant, upon the evidence as introduced by the plaintiff, without regard to the erroneous rulings of the court in the admission of evidence on cross-examination and the admission of the so-called blank binding receipt. Under this view of the case the errors committed by the* court were immaterial, and did not constitute reversible error.
The judgment of the circuit court, and order denying a new trial, are affirmed.