No. 21855 | Miss. | Mar 15, 1921
Lead Opinion
delivered the opinion of the court.
This is an appeal from a judgment awarding the appellee a recovery on two insurance policies on the life of her deceased husband. The facts are that on March 6, 1906, Shoemake applied 'in writing to Edwards, a soliciting agent for the appellant, for two policies of insurance for one thousand dollars each, payable to the appellee, his wife. This application among other things, provides:
“The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in goo'd health, and unless also the policy shall*505 have been delivered to and received by me during my continuance in good health.”
Edwards forwarded the application to the appellant’s agent at Meridian, under whom he was working, who forwarded it to the appellant. On March 12th the'policies were issued by the appellant and mailed to its agent at Meridian, accompanied by a letter reading as follows:
“Referring to application No. 745, R. V. Shoemake, delivery of policy [ies] herewith is subject to referee’s requirements, and statement signed by applicant that he does not do any .rafting or driving logs.”
Paragraph 40, under the caption “Delivery of New Policies,” of a book of “Rules, Regulations, and Instructions,” issued by the appellant to its agents for their government in the transaction of its business, is as follows:
“Not to be delivered. — A policy must not be delivered, nor the initial premium accepted, unless the applicant is in good health and his occupation as stated in application remains unchanged. This rule applies, regardless of the fact that the premium may have been previously collected. In any case of change in the applicant’s health or occupation, the policy must be returned at once to the manager with a statement of facts, that.he may ascertain from the company whether the policy should or should not be delivered, and, if delivered, upon what conditions.”
On receipt of the policies the appellant’s Meridian agent forwarded them to Edwards at Laurel, Miss. Shoemake, who was an employee of the Warsaw Southern Lumber Company, told Edwards, when he applied for the policies, that if he was not at the lumber company’s camp, which was near Laurel, when the policies were ready for delivery, to leave them with Clayborn Bush, the lumber company’s paymaster. Edwards gave the policies to Bush for delivery to Shoemake on payment of the first premium. Bush held' the policies for several weeks, at the expiration of which time, Shoemake having failed to call for them, he returned the policies to Edwards. On March 31st or April 1st,, Shoemake became ill with a throat trouble which the ap
One of the assignments'of error brings, under review the refusal of the court below to direct a verdict for the appellant. The ground on which this ruling is sought to be upheld by the appellee is that, the policies having been issued and forwarded to Edwards for delivery, the contract of insurance was consummated and the policies became effective when the premium to be paid thereon was tendered by Holster to Edwards. In the absence of an agreement to the contrary, the acceptance of an application for insurance, when communicated to the insured, consummates the contract without an actual delivery of the policy. Insurance Co. v. Herron, 56 Miss. 643" court="Miss." date_filed="1879-04-15" href="https://app.midpage.ai/document/alabama-gold-life-insurance-v-herron-7985227?utm_source=webapp" opinion_id="7985227">56 Miss. 643. But in the case at bar the appellant’s acceptance of the application for insurance was not communicated to' Shoemake, and, in addition, the application expressly provides that the policies should not become effective unless and until delivered to and received by Shoemake while in good health. Consequently,
The contention of the appellee is that the delivery of the policies by the appellant to its agent with instructions to deliver them to Shoemake is in law a delivery to Shoemake, subject only to the payment by him of the premium thereon. It has been held, and we will assume for the sake of rhe argument, that the delivery of a policy by an insurer to its agent, with unconditional instructions to deliver it to the insured, is.in effect a delivery to the insured; but this rule can afford the appellee no relief, for, leaving out of view the effect of Shoemake’s illness would have had on the policies, had they been actually delivered to Holster by Edwards, and leaving out of view, also, the appellant’s special instructions to its agent that the delivery of the policies “is subject to the referee’s requirements,” etc., the agent’s general instructions were not to deliver policies “unless the applicant is in good health, and ... in any case of change in the applicant’s health or occupation, the policy [ies] must be returned at once to the manager, with a statement of facts, that he may ascertain from the ■company Avhether the policy [ies] should or should not be delivered, and, if delivered, upon what conditions.”
■ Assuming that the only information given to Edwards by Holster relative to Shoemake’s illness was that Shoe-make was ill with tonsilitis, nevertheless the fact is that Shoemake had then undergone a surgical operation upon his throat, and his condition was such as to require continued medical treatment. Whether this condition of Shoe-make was correctly reported to Edwards or not is not material, for, had he inquired further, he would have ascertained Shoemake’s actual condition, which was such as to make it the duty of Edwards, under his general instructions from the appellant, to return the policies to the appellant’s “manager, with a statement of facts, that he may ascertain from the company whether the policy [ies] should or should not be delivered, and, if delivered, upon what conditions.”
Reversed, and judgment here for appellaiit.
Reversed.
Dissenting Opinion
(dissenting). I am unable to bring myself to agree with the majority opinion that there should have been a directed verdict, and judgment for the appellant in the trial court. The application of the insured was; accepted by the appellant, and policies issued in accordance therewith, for delivery to the insured upon the following conditions (quoting from the application) :
“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.” ,
There is this provision in the policies: “This policy and the application therefor, copy of which is indorsed herein or attached hereto, constitute the entire contract between the parties hereto.”
Under this stipulation in the policies and in the application therefor, any rules, regulations, or conditions are eliminated from consideration; and this is true as to any correspondence between the appellant and its agent in forwarding the policies for delivery. In order to complete the contract, it was only necessary for the insured to pay the first premium while in good health. It is conceded that the first premium was. tendered by the brother-in-law of the insured as his agent; but the court holds that because of the fact that the insured was suffering with an attack of tonsilitis, the agent of appellant had the right to refuse to deliver the policies.'
The question is whether or not, at the time the tender was made by the agent of the insured, he was in good health, in the meaning of that term as used in the policies
“Slight troubles, temporary and light illness, infrequent and light attacks of illness, not of such a character as to produce bodily infirmity or serious impairment or derangement of vital organs, do not disprove the warranty of good health. In other words, the term ‘good health,’ when used in a policy of life insurance, means that the applicant has no grave, important, or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system. Barnes v. Fidelity Mut. Life Ass’n, 43 A. 341" court="Pa." date_filed="1899-05-23" href="https://app.midpage.ai/document/barnes-v-fidelity-mutual-life-assn-6245369?utm_source=webapp" opinion_id="6245369">43 Atl. 341, 342, 191 Pa. 618, 45 L. R. A. 264 (citing 3 Joyce, Ins., section 2004); Goucher v. Northwestern Traveling Men’s Ass’n (U. S.), 20 Fed 596, 598; Provident Sav. Life Assur. Soc. of New York v. Boyer (Ky.), 67 S. W. 827, 828; Hann v. National Union, 56 S.W. 834" court="Tenn." date_filed="1900-03-07" href="https://app.midpage.ai/document/peterson-v-state-8299566?utm_source=webapp" opinion_id="8299566">56 S. W. 834, 836, 97 Mich. 513" court="Mich." date_filed="1893-11-17" href="https://app.midpage.ai/document/hahn-v-national-union-7936662?utm_source=webapp" opinion_id="7936662">97 Mich. 513, 37 Am. St. Rep. 365; McDermott v. Modern Woodmen of America, 71 S.W. 833" court="Mo. Ct. App." date_filed="1903-01-20" href="https://app.midpage.ai/document/mcdermott-v-modern-woodmen-of-america-8263172?utm_source=webapp" opinion_id="8263172">71 S. W. 833, 837, 97 Mo. App. 636.
“The term ‘good health’ in a life insurance policy is comparative; and an assured is in good health unless affected with a substantial attack of illness threatening his life, or with a malady which has some bearing on the general health. It does not mean in perfect health; nor would it depend upon ailments slight, and not serious, in their natural consequences. Manhattan Life Ins. Co. v. Carder (U. S.), 82 F. 986" court="4th Cir." date_filed="1897-11-10" href="https://app.midpage.ai/document/manhattan-life-ins-co-of-new-york-v-carder-8859713?utm_source=webapp" opinion_id="8859713">82 Fed. 986, 989, 27 C. C. A. 344; Galbraith’s Adm’r. v. Arlington Mut. Life Ins. Co., etc., 75 Ky. (12 Bush), 29, 39; Mason’s Benefit Society v. Winthrop, 85 Ill.
At tbe time tbe brother-in-law of tbe insured tendered tbe premium and demanded the policies of the agent of appellant, the insured bad an attack of tonsilitis and was in a hospital, and on that day, or tbe day before, bis tonsils bad been lanced, and six days thereafter he died, supposedly from an infection. Dr. Lomax testified that tonsilitis was not a serious ailment — in fact, not any more serious than an aching tooth with pus at tbe root of it — but might become serious from tbe entering of some infection. If, in tbe meaning of tbe application and tbe policies, tbe insured was in good health when this tender was made, that completed tbe contract, and be was entitled to tbe policies, notwithstanding be died six days afterwards. Under tbe evidence in this case it seems plain that the question whether be was in good health, or not, when tbe tender was made, was a question for tbe jury, and not tbe court.