180 Iowa 572 | Iowa | 1917
On the back of the application is a statement, “First payment, with application, $4.00,” and appellant concedes in argument that, “On the back cover of the application there is a statement to the effect that the first premium must accompany the application;” but argues that, because of the position of this statement on the application, it would not bind the applicant. 'The evidence of the defendant’s officers, testifying as witnesses, is that it was the universal rule of the company that the money must accompany the application. At one place in his testimony, O’Connell says he thinks that he sent the application and
Deceased was injured by a fall from a hayrack on Monday, July 13th. The .time of day is not shown, but it was before 4 o’clock in the afternoon; he was taken to the hospital at or before 4 o’clock. The undisputed evidence is that, in the ordinary course, it would take from 2 to 4 days for an application to be sent' from Tama to Des Moines and for a return of the policy; that the average would be 3 days, but that this would depend somewhat upon the number of applications being received by the company; and that they were taken up in the,order of their receipt. Testimony also shows that, during the month of January, 1914, defendant received about 3,000 applications, and in July, 1914, 6,000, and that the increase was so great that the company could not break in help sufficient to take care of the increase in business.
The defendant’s motion to direct a verdict was upon several grounds, and, if it was good upon any ground, it would work an affirmance. We think the motion was good on the ground that, under the undisputed evidence;
Appellant relies upon the case of Duffie v. Bankers’ Life Assn., 160 Iowa 19, where it is held, substantially, that, where the applicant has done all he could, or was required to do, it should be held that there is reasonable probability that the policy Avould have been issued, but for the delay and negligence of the company or its agents. Appellant says, too, that, under the doctrine of that case, the question as to wether there Avas unreasonable delay Avas for the jury. That was the holding in that case, where the delay was about 30 days. But Avhere, as in the instant case, the circumstances Avere such and the time so short, as- shown by the undisputed eAddenee; it becomes, as we haA’e said, a matter of laAv.
“After taking the application, I did not report to the company until it Avas sent in; did not ask company anything relative to it before sending it in; remitted the money for Harding’s application to the company Avhen I gave the receipt. He (Harding) told me he Avould pay me the next Saturday night after this application, and I gave him the receipt Avlien he paid. That Avas Saturday, and it Avent in Monday, if I remember right. I)o not remember date I gave receipt to Mr. Harding; I think it Avas Saturday, because he said he would be in Saturday, and it seems to me it Avas Saturday evening, 9 or 10 o’clock. Yes, it was Saturday eAening previous to when he Avas hurt. I could not tell you if he was hurt the Monday after he paid me. If July 4th Avas on Saturday and July 11th on Saturday, I would not say Avhich date he paid, because I did not keep any track of it. If the receipt shows July 11th, it must be the date he paid me the money. If the receipt shows July 11th, I sent the application in the Monday following, which Avas the 13th, I think.”
Redirect examination:
“It was the 4th day of July he paid me, or the evening before, but he agreed to pay it Saturday night.”
Appellant concedes that the receipt given by O’Connell for the premium, is dated July 11th. We think that, under the record, a finding that deceased paid this premium prior to Saturday evening, July 11, 1914, would not ■sustain a verdict of the jury had they so found. It should he said further that the application sIioavs that applicant was a farmer, and one of the questions therein is as to Avhether his total income was at least $600 annually, and he answered, “No.” The evidence of the defendant’s offi
We think that the testimony of O’Connell itself, taken altogether, shows that it was on the 11th; but the defendant introduced in evidence a letter from O’Connell, which, we think, has a tendency to show that he did not enclose the post-office order for $4 with the application, and that it had not then been paid. There is some other testimony bearing on this question, and, as said, the receipt shows that it-was paid on the 11th of July. In addition to this,
It is our conclusion that the judgment of the district court was right, and it is, therefore, — Affirmed.