278 Pa. 255 | Pa. | 1923
Opinion by
W. N. Wickersham was a life insurance agent representing the State Mutual Life Insurance Company and had placed a, policy in that company on the life of James Magee, who was desirous of procuring additional insurance, and on Wickersham’s representation that he could obtain it in other companies, authorized him to do so. Wickersham opened negotiations with Dickey, general agent of the defendant company, and as a result the policy in suit for $50,000 was issued.
To be enabled to share in the premium to be paid, Wickersham signed an application to become an agent for the defendant company and was so appointed by Dickey. Owing to delay in forwarding his application and appointment to the state insurance department, he did not receive his license to act as such until after Magee’s death. It was arranged between Dickey and Wickersham that the latter should receive either 50% or 70% of the first premium depending upon circumstances not necessary to detail. Magee, after signing the application for the insurance, on August 14, 1919, left his home on a trip to the Pacific Coast. The policy is dated September 11th.
On receipt of the policy from the company, Dickey turned it over to Wickersham as their agent, accompanied by the statement to him in writing, so Dickey testified, that it was handed to him for delivery and collection and that it must not be delivered unless the insured was in good health. Wickersham denies that he received such instructions and that he was the agent of defendant, but asserts he was the representative of Ma-gee and received the policy in his behalf; he admits, however, that when Dickey handed it to him, the former said, “There you are, get the check.” Wickersham had not heard anything from Magee from the time the latter left home on August 14th, except as to the probable date of his return. He said that after receiving the policy, he put it in his, Wickersham’s, desk and left it there await
The company, having been called on for payment of the policy, refused to honor the demand on the grounds that the first premium had not been paid and the policy had not been delivered, whereupon this suit was brought by Magee’s administrator, based on the allegations that the payment of the premium had been waived by the company, and the policy had been unconditionally delivered to Wickersham as agent for Magee. On the trial of the issue, the jury disagreed, and, upon motion of the defendant, it having submitted a point for binding instructions at the close of the testimony, the learned president judge of the court below, under warrant of the Act of April 20,1911, P. L. 70, entered judgment for defendant, on the ground that a waiver of payment of the first premium, was in violation of the Act of July 12, 1913, P. L. 745. Prom this judgment plaintiff appeals.
In his application for the policy, made part of the contract of insurance, Magee had stipulated, “The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance in good health.”
The first premium not having been paid, plaintiff could not set up a claim to recovery on the basis of a delivery of the policy and an allegation that payment had been waived by the company. Appellant produces to us no evidence of a waiver unless it is embodied in what took place between Dickey and Wickersham when the latter received the policy. Wickersham testified to nothing said
It is not necessary now to decide whether an insurance company can waive the requirement that the first premium shall be paid, in view of the declared policy of the State (evidenced by the Act of June 1, 1911, P. L. 581) that it must be paid in order to make the policy effective. That act provides, page 591, section 25, “Nor shall any such policy, except policies of industrial insurance, where the premiums are payable monthly or oftener, be issued or delivered unless it contains in substance the following provision: ‘First. — A provision that all premiums shall be payable in advance, either at the home office of the company or to an agent of the company, upon delivery of a receipt signed by one or more of the officers of the company, who shall be named in the policy.’” In any event, it is only in those cases where there has been an unconditional delivery of the policy that it becomes effective without payment of the first premium. “Where the contract is otherwise complete, an unconditional due-
Our own rule does not go as far as the textbook authority just quoted. In Marland v. Royal Ins. Co., 71 Pa. 393, it was held that by giving the policy and receipt to an insurance broker, the company gave him no authority to deliver them without payment of the premium., What was said in that case, page 396, is most applicable to the one confronting us: “It [the policy] was delivered to him [the broker] to be handed over if the premium was paid. The company did not charge him with the premium or keep any account with him. Thus, by their own showing, the company in handing over the receipt and policy, gave Thompson no authority to deliver it to them [the applicants for insurance] without payment of the premium. The policy, by its own terms declared that ‘No insurance proposed to this company is to be considered in force until the premium and duty are actually paid......’ Having no authority to deliver without payment of the premium, it is obvious Thompson’s willingness to do so, or to give credit, can create no contract with his principals......What was testified, therefore, about the company’s having accepted the risk, and having delivered the receipt and policy to Thompson, as the broker and mutual agent of the parties, creates no contract.”
The conclusion forces itself upon our minds that in receiving the policy charged with the duty of obtaining the premium, Wickersham was regarded by Dickey as the agent of the company and he had the right to so regard him, because Wickersham had signed the application to be an agent and had been appointed by Dickey, notwithstanding the fact that the formal license from the insurance department had not been issued to him. To hold otherwise, would necessitate the conclusion that
While the Act of June 1, 1911, P. L. 581, was repealed by that of May 17, 1921, P. L. 682, the latter reestablished the provisions with which we have been dealing in section 410, and although the Act of July 12,1913, P. L. 745, was in part repealed by the same Act of 1921, it makes no substantial change in the law; this later legislation does not apply in the present case.
The receipt of the policy by Wickersham was for the purpose of delivering it to Magee, if he paid the premium, and was in good health — payment not having been made, there was no contract of insurance entered into between the parties.
The judgment is affirmed.