104 Ga. 67 | Ga. | 1898
This was a suit upon a policy of lifetinsurance. The case was submitted to the court without a jury, upon an agreed statement of facts, the substance of which was as follows: On November 20, 1895, H. C. Babcock made application to-J. D. Thomas, local agent at Dalton, Ga., of the defendant company, for insurance of $5,000. On the same day Babcock paid the agent the first year’s premium on said policy, to wit $174, and at the same time said local agent gave to said Babcock a receipt to the effect that this sum of $174 should be held for Babcock on the condition, “ that if the officers at the home office of the New York Life Insurance Company approve an application made by him this day for an insurance of five thousand dollars, and a policy is issued and delivered to him while living and in good health, said sum shall be applied in payment of the first annual premium on said insurance, provided on or before such delivery he shall first pay any balance of said premium.” And, “that unless his application is approved, and a policy is issued and delivered to him while living and in good health, and until such first annual premium is paid in full, the New York Life Insurance Company incurs no liability except for the return of said sum on surrender of this receipt.” The receipt further stipulated, “ That no agent has power in behalf of said company to make any contract of insurance or to bind said company by making any promise or making or receiving any representation or information.” The application made at the same time the receipt was given was at once forwarded by the agent to the home office of the company in New York. It was provided in the application, “That the company
The above policy was mailed to the local agent of the company at Dalton, Ga. It reached Dalton and was delivered to the agent, Thomas, by the postmaster about 2 p. m. on November 30, 1895. Thomas made no effort to deliver the policy to the applicant Babcock, whose office was about three minutes walk from the post-office, but carried it home with him, his home being about one mile from the post-office. The policy remained in this agent’s possession until about nine o’clock of the morning of December 2, 1895, at which time one Sherry McAuley, whom the agent knew to be an intimate friend of Babcock, called and asked for said policy, stating that he was authorized to receive it. The agent asked if Babcock was sick, and McAuley replied that he was not. After hesitating, the agent delivered the policy to McAuley. After McAuley had received the policy, he then informed Thomas that Babcock was dead; that he was found dead on the afternoon of the day before in his office with a pistol wound in his breast. This was the first knowledge the agent had of Babcock’s death; and he at once demanded the return of the policy, but McAuley re
After argument had upon the foregoing evidence, the court rendered a judgment for the plaintiff against the defendant for the principal sum sued for, $5,000, besides interest and costs of suit. To this judgment defendant excepted upon the following-grounds : (1) Because the court erred in holding the contract between the parties was consummated without the delivery of the policy, the parties having contracted, as defendant contends, that actual delivery of the policy should be made during life of applicant. (2) Because the court erred in holding there was a delivery of the policy under the contract. (3) Because the court erred in disregarding the conditional receipt as being a part of the contract, said receipt declaring the policy must be delivered during the lifetime of the applicant. (4) Because the court erred in holding the applicant had paid his first premium, the conditional receipt showing, as defendant contends, that there was really no payment, and that there was no intention upon the part of the applicant to pay, or defendant to receive, said money as a premium.
The fundamental question to be determined in the legal construction of all contracts is, what was the real intention of the parties? Where one party makes a proposition to purchase a thing which is unconditionally accepted by the other, the contract of purchase becomes complete. There is no reason why the same rule should not be applied when a written application is made for an insurance policy. So long as the application is not acted upon by the insurance companjr, of course no contract has been consummated; and if the applicant should die before the acceptance of his application, the company has incurred no
We do not mean to say, however, that the insurer and the insured can not by their contract make an actual delivery of the policy essential to its validity. We see no reason why an insurance company can not stipulate in its agreement to insure that its risk shall not begin until some definite time in the future, or until some specified act has been done. It is insisted in this case by the plaintiff in error, that the receipt given by the local agent to the' applicant when the first annual premium was paid constitutes a part of the contract of insurance, and that by virtue of the terms of this receipt it was expressly agreed between the parties that the insurance company should incur no liability until its policy had been actually delivered to the applicant. We think it very questionable whether the provision in this receipt in reference to a delivery of the policy forms any part of the contract sued on in this case. It was evidently given to protect the company against any liability in the event the application made to it should be rejected. The agent who gave the receipt had no authority to make any contract of in
The sole defense of the plaintiff in error is based upon the contention that, under its contract, it was to incur no liability until there had been a delivery of the policy to the applicant. Assuming that this condition constitutes a part of the agreement between the parties, it then becomes a material question as to whether or not such delivery was effected before the death of the insured. This is also a question of intention, and must be determined from the facts and circumstances in this case. As a general rule, whenever one parts with the custody and control of anything with the intention at the time that it shall pass into the possession of another, its delivery to such other person has, in contemplation of law, become complete. The mere manual possession of the thing intended to be delivered is a matter of little consequence. Such possession may exist without any legal delivery, and it may not exist when a legal
Upon a careful examination of the authorities cited for the plaintiff in error, as well as others bearing upon the subject, we find nothing in conflict with the above views. In the case of Kohen v. Mutual Reserve Fund Life Ass’n, 28 Fed. Rep. 705, decided by Brewer, J., of the circuit court of Missouri, it was held: “ Where the application for insurance provides that the policy shall not be in force until it is delivered to the applicant, the contract of insurance will not become binding upon the company until delivered.” It will be seen from the facts-in that case, that before the application was finally passed upon by the company in New York, it had received news of the death of the applicant. The company in consequence prepared no certificate of membership, and issued no policy to the applicant. The question as to what would have constituted delivery had the policy issued did not arise in that case. In Misselhorn v. Mutual Reserve Fund Life Ass’n, 30 Fed. Rep. 545, decided by the same court, it was held: “Where an application for life-insurance, and the policy issued thereon, both-provided that the policy should not be in force until ‘signed by the officers of the association, and delivered to the applicant/' and the policy was made out after the applicant’s death, and, in ignorance thereof, delivered at the place where he had resided, held, that it was void.” The plaintiff sought to hold the company liable in that case on account of delay in passing upon the application. The company defended on the ground that the proposition which the applicant made was for-the policy to become operative when the instrument was executed and delivered, and the instrument being executed in ignorance of a material fact, the company was held not liable. The question of what would have constituted delivery had the applicant been in life when the policy issued was not discussed. In the case of McCully’s adm’r v. Phœnix M. L. Ins. Co., 18 W. Va. 782 (3), it is ruled: “A condition, that the contract shall not take effect except upon the delivery of the policy, must be per
The above authorities we have selected are among the strongest relied upon by the plaintiff in error; and we merely call attention to them to show that they decide no principle in conflict with our ruling in this case. On the other hand, the principle upon which the third headnote is founded is abundantly sustained by authority, as well as reason. In Newark Mach. Co. v. Kenton Ins. Co., 35 N. E. Rep. 1060, it was held': “When the terms of an executed policy have been unconditionally accepted by the insured, and it has thereafter been treated as in force by the parties, its delivery will be regarded as complete, though it remain in the hands of the insurer’s agent.”
Judgment affirmed.