44 Ind. App. 180 | Ind. Ct. App. | 1908
Appellees recovered judgment against appellant for $1,000, upon a policy of insurance on the life of Lulu Thompson, which policy was made payable to them.
The complaint is in one paragraph, and alleges that, with the exception of Charles Thompson, the appellees are infants, said Charles acting as next friend; that appellant on March — , 1900, issued its policy of insurance upon the life of Lulu Thompson in the sum of $1,000, payable to appellees, her children; that the premium was paid thereon, the policy delivered, and that the insured died April 21, 1900; that notice of death was given to appellant, and a request made for blanks for proofs of death, but the liability was denied; that appellees had performed all the conditions required by them to be performed, as had also the decedent in her lifetime; that the payment had been demanded and refused; that appellant had possession of the policy, and appellees were therefore unable to make the same a part of the complaint.
The action of the court in overruling appellant’s motion for a new trial is the only error discussed.
The insufficiency of the 'evidence, the correctness of the verdict, the refusal of the court to give certain instructions requested, the giving of certain instructions on its own mo
The validity of the policy depends upon two conditions: (1) "Whether the first premium was paid to any agent of appellant authorized to receive it; (2) whether, at the time it was delivered to appellant’s agent at Evansville, the insured was in good health.
The policy contained the following provision:
“This policy shall not take effect unless the first premium is paid in cash, or note for extension of time for such payment is accepted by the company at its home office at Detroit, Michigan, nor unless the insured is in good health at the time of its delivery to him.”
In the application this condition is thus set out:
“ It is hereby agreed that the policy shall not take effect unless the first premium is paid in cash to the company or its authorized agent, or a note for extension of time for such payment is accepted by the company at its home office in Detroit; nor unless the insured is in good health at the time of its delivery.”
It appears from the evidence that one Veateh, the local agent of the Washington Life Insurance Company, at Evansville, Indiana, had written an application for Lulu Thompson to said company, which application had been rejected. Thereupon Veateh notified the husband of said Lulu Thompson that said application had been rejected, and told him that he could procure insurance in another company as good as the Washington Life Insurance Company, but that the premium would be a little more, and Thompson said: “Go ahead and get her in any good company.” There-is evidence (contradicted) to show that Thompson had paid the premium on the application in the Washington Life Insurance Company, and, at the time of making the application in the appellant company, he paid to Veateh the additional amount necessary to make the premium in that company. The money so paid to Veateh was, at the request of said Thompson, repaid to him after the death of his wife — a part of it being
The evidence shows that at the time the policy was received by Tate at Evansville, on April 14, 1900, Lulu Thomp
Where the application contains a recital that the contract shall be completed only by delivery of the policy (McCully’s Admr. v. Phoenix, etc., Ins. Co. [1881], 18 W. Va. 782), or that the policy shall not be in force until its delivery to the applicant (Kohen v. Mutual, etc., Life Assn. [1886], 28 Fed. 705), the contract will not become binding on the company until the policy is delivered (McMaster v. New York Life Ins. Co. [1899], 99 Fed. 856, 40 C. C. A. 119; Union Cent. Life Ins. Co. v. Pauly [1893], 8 Ind. App. 85). The rule just discussed is especially applicable where the policy provides that it shall not take effect unless it is delivered while the applicant is in good health. Ray v. Security, etc., Ins. Co. (1900), 126 N. C. 166; Paine v. Pacific Mut. Life Ins. Co. (1892), 51 Fed. 689, 2 C. C. A. 459; Metropolitan Life Ins. Co. v. Howle (1903), 68 Ohio St. 614, 621, 622, 68 N. E. 4; Roblee v. Masonic Life Assn. (1902), 77 N. Y. Supp. 1098; Volker v. Metropolitan Life Ins. Co. (1893), 21 N. Y. Supp. 456; Misselhorn v. Mutual, etc., Life Assn. (1888), 30 Mo. App. 589.
The policy was returned to the company by Tate, Veatch having had nothing to do with the matter after delivering the application to him. The reason given by Tate for its return was that Mrs. Thompson was in bad health, and that the first premium had not been paid. To have delivered the policy to the applicant upon its receipt, neither of these two conditions having been complied with, would have been in violation of the terms of the contract and against the rules of the company.
Other alleged errors we do not deem necessary to pass upon.
The verdict is not sustained by the evidence. Judgment reversed, with instructions to sustain appellant’s motion for a new trial.