92 Iowa 593 | Iowa | 1894
The plaintiff is the administratrix of the estate of L. A. Stevens, deceased. L. A. Stevens, in his lifetime, had a policy for two thousand dollars in the defendant company, which was, by its terms, payable to one H. Moyer, and bearing date October 24, 1891. A. Gk Edwards was the general agent of the defendant company. Edwards made a written agreement with one N. E. Sherwood, whereby Sherwood was to engage in the service and employ of Edwards as agent in the state of Nebraska “to procure applications for insurance; to collect, so far as practicable, when authorized so to do, all premiums payable on account of such insurance; and to deliver, upon such collections, the policies and renewal receipts sent by the party of the second part for that purpose.” The application for the policy in suit was obtained on the immediate solicitation of. Moyer, and sent by Moyer to Sherwood at Detroit, Michigan, and was by Sherwood sent to the office of the company, and the policy made out and returned through Sherwood to Moyer, and received by him on the twenty-eighth day of October, 1891, at Omaha, Nebraska; and the assured, L. A. Stevens, died at Ottumwa, Iowa, on the same day. A ground of defense to the action on the policy is that when Stevens died the policy had not been delivered and the premium paid, as required by the terms of the application and policy. Because of a clause in the policy, plaintiff concedes that “the company is not liable unless there was a delivery of the policy and a payment of the premium within the lifetime of the
After verdict the defendant moved for judgment in its favor on the special findings, which the court overruled, and the ruling is assigned as error. It would seem from the finding and concessions by appellee that the motion should have been sustained. Appellee, however, insists that the condition of the record is such that the jury could have found both a delivery of the policy and a payment of the premium. Some additional facts are important in this connection. Sherwood, as agent under his contract with Edwards, had resided at Omaha, Nebraska, but before the application in question was taken he had moved to Detroit. Moyer was in Sherwood’s office at Omaha, and it is contended by appellee that when the application was taken he was still doing the work of Sherwood’s office, and was an agent for the company. It is then urged that Stevens, in giving his application, had no part or concern in the arrangement by which the premium was to be paid by the indorsement on the note, but that his understanding was that he borrowed the money of Moyer to pay the premium, and hence that, with the money in Moyer’s hands, there was a payment. Then, upon the question of the delivery of the policy, it is urged that because of the agreement between N. E. Sherwood and Moyer, by which the premium was to be paid by the application on the note, and the money was loaned by Moyer to Stevens, and held by Moyer as a fund for the payment of the premium, when the company approved the application and sent the policy to N. E. Sherwood it was a delivery of the policy. Neither of these positions can be sustained, and, unless both can be, the motion for judgment should not have been overruled. As to the payment, it seems.to us that it is hardly a doubtful question. Appellee con
II. It is also very apparent that there was not a delivery of the policy before Stevens’ death. It is true that it came into the hands .of Sherwood, and was
The undisputed facts and the special findings by the jury are such that the defendant was entitled to a judgment, and the motion for that purpose should have been sustained. Reversed.