97 Ark. 229 | Ark. | 1911
(after stating the facts). Did the court err in directing a verdict for the defendant? In deciding this question it is necessary to determine whether there was a delivery of the policy; for if it was not delivered there was no contract of insurance, and plaintiff can not recover.
It is very well settled that where nothing remains to be done by the insurer, the mailing of the policy, duly executed, to the insured constitutes a delivery. Mutual Reserve Fund Life Association v. Farmer, 65 Ark. 581; Armstrong v. Mutual Life Insurance Co., 96 N. W. 954, 121 Iowa 302; Kilborn v. Prudential Ins. Co., 99 Minn. 176; Triple Link Mut. Indemnity Ass’n. v. Williams, 121 Ala. 138, 77 Am. St. Rep. 34, 26. So. 19.
In the latter case a special plea was interposed by the insurance company that the contract of insurance should not take effect until the'first assessment and admission fee was paid, and the policy was delivered during the life and continuance in good health of the insured. The plaintiff replied to this plea, and in discussing the sufficiency of the replication the court said:
“The policy recites that Williams (the insured) resided at that time at Bessemer, Alabama, and the policy was set out in the complaint. It was not necessary for this replication to reiterate his residence at that place, even conceding that there need have been any comment on that subject, which is by no means clear, since it may well be that the mailing of the policy to the place where the officers of the company supposed him to reside, as is evidenced by the recital, would as effectually evidence their intention to deliver it, though they may be mistaken in point of fact, as mailing it to his true address.”
Applying this rule to the case at bar, we think the delivery or nondelivery of the policy was a jury question. The evidence for the plaintiff shows that the defendant company received and accepted the first annual premium, issued the policy, and sent it to its local agent at Searcy to be delivered to the insured. That the agent in good faith mailed the policy to the insured at Vilonia, which he believed to be the postoffice at which he received his mail. It is true that the policy afterwards came into the physical control of the agent because he had mailed it to the wrong postoffice; but we hold that where the agent in compliance with the directions of the insurer and in good faith places the policy, duly executed, in the postoffice with the postage prepaid, addressed to the insured, so that he would receive it at the address given in due course of mail while in good health, such act constitutes a delivery and completes the contract of insurance. This is so because there is in such case an intention on the part of the insurer to put the policy beyond the control of the insurance company, and the insured must acquiesce in this intention.
Nor can it be said as a matter of law under the evidence that the insured refused to receive the policy, or directed that it should not be delivered to Dr. Hassell for him.
One of the conditions imposed by the terms of. the policy was that the insured should be in good health at the date of the payment of the first annual premium'. It is manifest that the insurance company had the right to impose this condition.
On this point the company introduced Dr. Hassell, who testified that Dupriest sent him word by his brother not to receive the policy for him because he had found out since the application was made that he was not entitled to the insurance for the reason that he was not in good health at that time. It will be noted that the application of Dupriest, his examination by Dr. Hassell, and the payment of the first annual premium was all done on the same day. Dr. Hassell furthér stated that Dupriest subsequently admitted to him that he was glad that he had not received the policy for him. It cannot be said, however, that this testimony is uncontradicted.
Dr. Hassell was the medical examiner of the insurance company, and to that extent was interested in the result of this lawsuit.
There appears in the testimony a letter from Dupriest to the company, written subsequently to the time of the occurrence of the matters testified to by Dr. Hassell, in which he states that he did not know that the policy had been issued, and was not to blame in the matter. It is evident that if he told Dr. Hassell that he was glad he had not received the policy for him he knew it had been issued, and, of course, the contrary would be true, that is, if he did not know that the policy had been issued, he could not have told Dr. Hassell that he was glad he had not received it for him. Lorch also testified that Dupriest rode into Searcy, a distance of 28 or 30 miles, when he made his application for insurance and was examined; that he appeared to be stout and well at the time.
Hence we conclude that there was testimony from which the jury might have inferred that Dupriest was in good health when he made the application for insurance and paid the first annual premium, ¡and that he did not direct that the policy should not be received by Dr. Hassell for him.
Because the court erred in directing a verdict for the defendant the judgment will be reversed and the cause remanded for a new trial.