53 Pa. Super. 526 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff brought this action to recover the amount which he had paid in advance, as the first annual premium, on a policy of insurance upon his life issued by the defendant company, upon his application for the same dated October 29, 1909. The ground upon which the plaintiff based his alleged right to recover was that one Billmier, acting as agent for the company, had at the time the application was made agreed that the amount of the annual premium paid would be returned in thirty days, unless the defendant within that time loaned the plaintiff the sum of $40,000 upon a mortgage of his real estate, and that defendant having failed to advance the said sum of money the plaintiff was entitled to have
The application of this plaintiff for insurance upon his life, dated October 29, 1909, clearly indicated that it was the intention of the plaintiff that the policy should issue forthwith. That paper contained these material statements, “I hereby agree to be examined forthwith by an authorized medical examiner of the company, and to accept the policy when issued”; and “I hereby agree that all representations and agreements made by or with the company or the agent taking this application are reduced to writing herein and made a part of this application and the policy issued hereunder.” The plaintiff upon the same day paid to Billmier, the agent, the sum of $343.85, the amount of the first annual premium on the policy. Billmier forwarded this written application to the general office of the defendant company at Philadelphia. The plaintiff testified that he was examined by the medical examiner of the defendant company in the office of Billmier, at Pittsburg, the same day upon which he signed the application. There was no reference in the application to any agreement with Billmier which made the issue or acceptance of the policy conditional upon the grant of a real estate loan, or which called for the return of the premium by the company unless such a loan was made. In so far then as the matter of life insurance was concerned, the application showed only that the transaction was the usual one, contemplating the payment of the premium for the first year, and the immediate issue of the policy. The facts thus presented to the defendant company by the written application of this plaintiff, the plaintiff having paid his premium to Billmier, who was concededly authorized to receive it, and having submitted himself to and been approved by the medical examiner of the .company, clearly indicated that the plaintiff was entitled to have his policy at once, and the company accordingly,
There is no doubt that, at the time plaintiff paid the insurance premium, he received from Billmier a receipt in the following form, viz.:
“Pittsburgh, Oct. 28th, 1909.
“Mortgage for $35,000.
“ Received of Frederick M. Mechling,
“Three hundred forty-three 85-100th dollars, on account premium of $5000.00 fife insurance in Phila. Life Insurance Co. to be returned in 30 days if mortgage is not accepted by Phila, Life Ins. Co.
“ Geo. G. Billmier,
“ Geni. Agt,”
When Billmier, in December, 1909, settled with the defendant company for this premium, retaining the major part as his commission and paying to the company the small balance, the acceptance of that sum by the company, without knowledge of the collateral contract into
If the covenant made by Billmier, upon which the plaintiff relies, may be considered as a part of the contract of insurance, then, not being specified in either the application or the policy, it constituted an inducement to insurance, within the meaning of the Act of May 3, 1909, P. L. 405, and involved such a violation of the provisions of that statute that it must be held invalid. The plaintiff expressly averred in his statement that, “Defendant, through its said general agent, agreed to this proposition and induced plaintiff to make application for a life insurance policy in the said sum and in accordance with the application and defendant’s rules, to pay it the sum of $343.85, the amount of the premium payable in advance for the first year.” The testiinony of the plaintiff was in entire harmony with this averment of his statement, and this action is an attempt to enforce a contract, which was an inducement to insurance, in violation of the statute. The plaintiff also averred in his statement that: “Defendant, although it accepted the application of plaintiff for life insurance and issued a policy of insurance thereon and although it received full notice from plaintiff of the contract entered into as aforesaid, has wholly failed to comply with the terms of the contract under which it was agreed either to advance the money upon the mortgage, or, if unwilling to do this, to cancel the policy of insurance and return the premium within thirty days.” The plaintiff’s testimony is in entire harmony
The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of the defendant non obstante veredicto.