5 Colo. App. 140 | Colo. Ct. App. | 1894
delivered the opinion of the court.
Newcomb, as the administrator of the decedent, Nail, brought this action against the Provident Trust Society to recover three thousand dollars on a policy alleged to have been issued by the company during Nail’s lifetime. The company was apparently a mutual one, and in its organization provided for the collection of fees and assessments, both prior to the issuance of the policy and during its life. Nail died before the policy was actually issued. This is an important consideration, and necessitates an examination of all the matters preceding the delivery of the policy. The application was originally taken by one Jackson, who lived at Durango, and solicited insurance for the defendant company through an arrangement with Aldrich, the company’s agent in Denver. Jackson was not the company’s representative, and only had power to solicit the insurance and remit the premiums to the state agent, through whom communication was had with the main office in New York. The application was signed in June, 1891, when Jackson received from Nail eight dollars and a half on account of his membership fee and the first quarterly premium charged for that amount of insurance on that class of risk. Some question possibly might be made concerning the receipt of the money but for the fact that the application itself provided that the company should not be liable for any injury or death happening prior to the receipt and acceptance of the application and membership fee by the secretary in New York, and that the society should not be responsible for assessments paid to anybody except certain specified officers, or to an agent delivering a receipt signed by the president of the company. It was
This statement very clearly demonstrates the correctness of the judgment. The existence of a contract, entered into
The insured stated in his application that the company should in no wise be responsible for accidents or injuries which might accrue prior to the receipt of the premium by the company in New York, unless possibly tbe company would be responsible in case the assessment was paid to one issuing a receipt signed by its president. There is no question concerning the extent and the character of the exception, nor are we called upon to interpret it or determine its scope, since Nail was given no receipt thus signed. He was then by the terms of his application entitled to no insurance from the company until after the payment of the premium. It is very plain that neither the company nor its agents received the premium or membership fee before Nail was killed. Under these circumstances, it cannot be said that a valid contract had been entered into between the parties which obligated the company to respond in this suit after Nail’s
Some other errors are suggested by the appellant, but it is needless to consider them, since on the whole case it is clear that the appellant was not entitled to recover in the suit.
The judgment of the court below was right, and it will accordingly be affirmed.
Affirmed.