275 F. 657 | 8th Cir. | 1921
Action by Bertha Z. Bradley, as plaintiff and beneficiary, to recover upon a policy of life insurance alleged to have been issued by the New York Rife Insurance Company, defendant, on the life of her husband, James M. Bradley. At the trial of the action a verdict was directed for the defendant. Plaintiff has brought the case here for review. The facts are as follows:
On October 16, 1918, James M. Bradley, then a farmer living near the town of Ruthven, in Palo Alto county, Iowa, signed an application for a $5,000 policy of insurance on his life in defendant company. The application was solicited by one E. H. Reaser, who was a special agent of the company, and whose residence and office were in the city of Algona, in Kossuth county, Iowa. On the same day the applicant was examined by the company’s local medical examiner, and pro
“I agree as follows: (1) That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime and good health, and that, unless otherwise agreed in writing, the policy shall then relate back to and take effect as of the date of this application; (2) that any payment made by me before -delivery of the policy to, and its receipt by, me as aforesaid, shall be binding on the company only in accordance with the terms of the company’s receipt therefor on the receipt form which is attached to this application, and contains the terms of the agreement under which said payment has been made, and is the only receipt the agent is authorized to give for such payment; (3) that only the president, a vice president, a second vice president, a secretary, or the treasurer of the company can make, modify, or discharge contracts, or waive any of the company’s rights or requirements, and that none of these acts can be done by the agent taking this application.”
The application and answers made to the defendant’s local medical examiner and the medical examiner’s report were forwarded in due course to the home office of the company at New York City, N. Y., where they were received October 19, 1918. On October 23, 1918, a policy was written up as applied for and forwarded from the home office of defendant in New York City to the defendant’s branch office in the city of Des Moines, Iowa, to be handled in accordance with the defendant company’s established rules. On October 28, 1918, the defendant’s branch office at Des Moines mailed 'the policy as written up to the special agent, E. H. Reaser, at Algona, Iowa. The policy reached Algona, Iowa, sometime during the day of October 29, 1918, and from then on the special agent, E. H. Reaser, never parted with the physical possession of the policy until he returned it to the company as hereinafter stated. On October 29, 1918, defendant’s special agent, E. H. Reaser, was ill at his home at Algona, in Kossuth county, Iowa, and so thereafter continued for a period of several days. It is approxixnately 36 miles fi'om Algona, Iowa, to Ruthven, Iowa. It does not appear that after taking the application on October 16, 1918, there was ever any communication between Reaser and Bradley. On November 1, 1918, the applicant, James M. Bradley, became ill from the “flu,” and so continued ill xxntil November 4, 1918, when he died from the “flu.” Neither the company nor its special agent, E. H. Reaser, knew of the illness or death of said applicant. After the death of Bradley the special agent, Reaser, went to Ruthven with the intexitiorx of delivering the policy, in accordance with his instructions and the. company’s said rules, and upon arriving at Ruthven was informed of Bradley’s death, and he thereupon refused to and never did deliver the policy, but returned the same forthwith to the company’s branch office in Des Moines in accordance with the company’s rules, and the said branch office in turn returned the policy to defendant’s home office in New York City.
At the time of making his application James M. Bradley gave his personal promissory note, in a sum equal to the annual premium required to be paid on the kind and amount of policy applied for, to said E. H. Reaser in the latter’s personal and individual capacity, of which the defendant company had no knowledge. The secret agreement be
Section 1812 of the Iowa Code and the claimed construction of it by tlie Supreme Court of Iowa in Unterharnscheidt v. Missouri State Life Ins. Co., 160 Iowa, 223, 138 N. W. 459, 45 L. R. A. (N. S.) 743, is not applicable to this case. The section referred to relates wholly to misrepresentation by the insured in securing insurance. There is no claim of misrepresentation in this case. It is conceded that Bradley was in good health and an insurable risk when lie made application for insurance, and that he continued so up to the morning of November 1, 1918, when he became fatally ill There is no claim made that the policy was not delivered because Bradley was not in good health, but because he was dead. The following Iowa cases illustrate the purpose of the statule: Boulting v. New York Life Ins. Co. (1918) 182 Iowa, 797, 802, 166 N. W. 278; Weimer v. Association, 108 Iowa,
No insurance was effected under the facts. Rushing v. Manhattan Life Ins. Co. (1915) 224 Fed. 74, 139 C. C. A. 520; John Hancock Mutual Life Ins. Co. v. McClure (1914) 218 Fed. 597, 134 C. C. A. 355; Kennedy v. Mutual Life Ins. Co. (D. C. 1913) 205 Fed. 677; Cable v. United States Life Ins. Co. (1901) 111 Fed. 19, 49 C. C. A. 216; Equitable Life Assurance Society v. McElroy (1897) 83 Fed. 631, 28 C. C. A. 365; Piedmont & Arlington Life Ins. Co. v. Ewing (1875) 92 U. S. 377, 23 L. Ed. 610; Paine v. Pacific Mutual Life Ins. Co. (1892) 51 Fed. 689, 2 C. C. A. 459; Misselhorn v. Mutual Reserve Fund Life Ass’n (C. C. 1887) 30 Fed. 545; Kohen v. Mutual Reserve Fund Life Ass’n (C. C. 1886) 28 Fed. 705; McKenzie v. N. W. Mutual Life Ins. Co. (Ga. 1921) 105 S. E. 720; 1 Joyce, Ins. (2d Ed.) §§ 97a, 98, and cases there collected; 25 Cyc. pp. 718, 719.
The other assignments of error have been considered and found to be without merit.
Judgment affirmed.