180 N.W. 69 | S.D. | 1920
Action to recover on policy of life insurance. From findings and judgment in favor of plaintiff, defendant appeals.
Respondent is the ¡beneficiary under the policy sued on, and is the mother of John Al House, an unmarried young man, who is named in the said policy as the insured. On the 24th day of January, 191.9, John A. House was solicited by agents of appellant to make written application for life insurance, and on that date signed, executed, and delivered to said agents written application, which, among other things, contained the following stipulations :
N'o statements, representations or information made or given by or to- the person soliciting or taking- this application for a policy, or to any other person, shall, be binding on the company or in any manner affect its rights, unless such statements, representations or information be reduced to-writing and contained in this application; and that under no circumstances shall the insurance hereby applied for be in force until payment in cash, for the first premium while the applicant is in good health and a delivery of the policy to the applicant in person during his lifetime and while in good health.
On the 26th day of January the said applicant was examined by the local medical examiner of appellant. On January 29th the said application, report of medical examiner, and $74.60 in money for the first premium, were delivered to appellant as its home office in the city of Omaha, where, on January 30th, the same were referred to the medical committee of appellant. Thereafter, said, application was sent to and passed through the various departments of appellant’s home office, where on the 14th day of February, 1919, the said application was approved and said policy in fact executed by the proper officers of appellant, but which policy was then antedated and made to bear date of January 30, 1919, and was then mailed addressed to said John A. House at Sioux Falls, S. D., and was received by respondent on February ifith. On the 6th day of February said applicant was taken with .influenza, from which he died on February 13th. On February 18th appellant was advised of the death of applicant, and on the 23d of April offered to return the premium.
The president of appellant testified that all policies of appel
In consideration of the application for this policy, which is made a part of this contract, and of an advance premium of $74.60, to be actually paid in cash on or before the delivery thereof for one year’s insurance from the date of this contract, and for the advance reserve required theron, and upon the condition of the further payment in advance of a like amount on or before the 30th day of the month of January in each succeeding year during the continuance of this policy, or until twenty years’ premiums shall have been paid, hereby insures the life of John Albert 'House of Sioux Falls, S. D., in the sum of twenty-five hundred dollars.
“The execution of' a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.”
We are of the view that the testimony of the witness Newell is clearly within the rule established by this statute.
“When the decedent, in his application, made a proposal to become insured, he stated that a certain cash installment had been paid to make the insurance binding upon the company from the date of the delivery of the policy; and he agreed that the policy issued on the application should not take effect unless the premium was paid, nor unless the policy was delivered to him- while he was in good health. Upon compliance with these conditions precedent, the contract of insurance was to take effect. The first was complied with — the premium paid. The second — as indispensable to the taking effect of the policy as the first — was never complied with, and never could be complied with, because the life of the applicant sought to be insured had ended before the policy was written and issued. It is not a question of the proper construction to be given a doubtful or ambiguous provision of a policy. The parties had the right to contract out of their negotiations any uncertainty that might arise as to when the risk should attach' and the insurance become binding upon the company. This they did. While negotiations for insurance were commenced when the application was signed and the premium-paid on April 5th, yet no contract was then made, nor was*447 it the purpose to contract afterwards in any manner other than by a policy issued by the comjpany and delivered to the applicant. The contract was not made, in any event, before April 9th, and at that time one party to the contract was dead, and the subject-matter of the contract, the life regarding which the contract was made, did not exist. The death of Hockett on April 8th rendered the making of the proposed contract of insurance impossible. The fact that the policies, when issued on April 9th, were dated back as of the date of the application, April 5th, is not controlling. No contract of insurance was made prior to April 8th, and after that date no contract could be made that would be effective from any date.”
The judgment and order appealed from are reversed, and the cause remanded.