56 Ind. App. 418 | Ind. Ct. App. | 1914
Appellee as beneficiary under two separate policies of insurance issued by appellant on the life of its decedent, Hugh O. Holmes, hereinafter referred to as the insured, brought this action to recover the amount of the insurance specified therein. One policy bears date of January 2, 1905, and is for $162, the other bears date of April 29, 1907, and is for $153. The pleadings are numerous and lengthy, and, as the only error assigned and relied on for reversal is that of the ruling on the motion for a new trial, their contents are not necessary to an intelligent understanding or disposition of the questions presented by the appeal. The facts controlling such questions disclosed by the pleadings and admitted by the parties as a part of the evidence in the case are in substance as follows: Appellant is a corporation authorized to transact business as an insurance company in the State of Indiana, and has had an agency in the city of Indianapolis continuously since the execution of the policies herein sued on, which agency during all of said time has been in charge of Theodore Deming, superintendent. The premium on each of the policies sued on was payable weekly at the rate of fifteen cents a week on each policy. On March 22, 1909, the insured u was fourteen weeks in arrears in the payment of his premiums on each of the policies, and by reason thereof each policy by its provisions had lapsed. Each policy contained the following provision:
“If this policy is lapsed for nonpayment of premium, it will be revived within one year from the date to which premiums have been duly paid upon payment of all arrears, provided evidence of the insurability of the insured satisfactory to the company be furnished.”
On March 22, 1909, the insured at the instance of C. H. Keppel, appellant’s local agent at Indianapolis, made two written applications for the revival of the policies, viz., a
“I hereby declare myself, who was formerly insured under the above numbered policy, to be in as good a state of health as when said policy was issued, and that, having allowed it to become lapsed, I wish to renew it, upon the understanding that it will not be in force (although I now pay the arrears) until the company shall have consented to revive the same. In order to pay the arrears necessary to reinstate the above numbered policy I further declare I signed a premium note form for 2 dollars and 10 cents, to the terms of which form I hereby agree.”
There appeared on the application the following directions to the appellant’s agent taking such application:
“The agent must not enter the premiums in policy holder’s receipt book until official schedule is received. If the application is rejected, the Premium Note Form must be immediately returned to applicant and the revival receipt taken up.”
Insured also signed and delivered with the applications two premium note forms, viz., a separate note covering the arrears on each policy. Each of which notes contained the following provisions:
“The undersigned acknowledges * # * that the arrears of premiums on said policy amount to two dollars and ten cents and agrees that in event of the revival by the company of said policy, this form shall become a premium note for the above amount in payment of said arrears. First. — That the said amount ■ shall bear simple interest at the rate of four per cent, per annum from the date of such revival. * * * ”
Such premium note forms and the policies of insurance were delivered together with the applications for revival to appellant’s agent. Appellant had as its local medical examiner at Indianapolis, Dr. Fosler, who by direction of appellant examined the insured and after making such examination filled out and signed the blank form for medical examiner’s report on the back of one of the applications
“Medical Examiner’s Report. To be filled in by a regularly appointed medical examiner when the amount applied for together with policies previously issued and now in force, is $250 or more. 1. What do you believe to be the age next birthday? 42. 2. Race (white or colored) ? White. 3. Height and weight (if over 15 years of age) ? 5 ft 8 in. 145 lbs. 4. Does the applicant appear to be in good health? Yes. 5. Is there any physical defect or infirmity? No. 6. Has the applicant ever been rejected by this or any other company ? No. 7. Has either parent or a brother or sister died of consumption? No. 8. Have you reason to suspect intemperate habits, or if female, immoral life? No. 9. Has applicant within the past five years had any serious illness or injury; spitting blood, habitual cough, etc. ? If yes, give date and particulars below. No. 10. Is the heart diseased? No. 11. Are the lungs diseased? No. 12. Do- you detect disease of any kind? No. 13. Have you personally examined the applicant ? Yes. 14. When? Day 26. Month 3. Year 1909. 15. Is the life, in your opinion, a first-class, fair average or poor risk? First-class. * * * I certify that the above answers are true * * * D. W. Fosler, M. D., Medical Examiner. ’ ’
Each of these examinations in answer to Q. 14 contained therein bears as its date March 26, 1909, but this date is not admitted by appellee to be correct, but it contends that such examination was made on or about March 22, 1909. The agent’s certificate attached to such applications also shows that he personally saw the applicant; that he was in a good state of health, and that he advised the company to revive the policy. Dr. Fosler got the renewal applications, the two policies to be renewed and the two premium note forms from appellant’s office here in Indianapolis and after making and signing the medical .examiner’s report on the
"A lien of $2.10 bearing simple interest at the rate of four per cent, per annum, exists against these policies, subject to the terms of the premium note form, dated 4-5-09. John F. Dryden, President.”
These words were afterwards, and after the death of the insured, erased. On March 27, 1909, at 9:21 a. m. the insured died from injuries received that day from a fall from a scaffold. This suit was filed October 18, 1909, and on February 21, 1910, the appellant returned to appellee by mail the premium note forms, before referred to, accompanied by a letter signed by Larz A. "Whitcomb as attorney for the appellant, which letter reads as follows:
"Gentlemen: I beg leave to hand you herewith the following papers: 1. Premium Note Form — Industrial, dated March 22, 1909, and executed by Hugh O. Holmes on account of Policy No. 19,961,969 for $2.10. 2. Premium Note Form — Industrial, dated March 22, 1909, and executed by Hugh O. Holmes on account of policy No. 23,113,701, for $2.10. These instruments accompanied an application for revival of said policies made by said Hugh O. Holmes to the Prudential Insurance Company of America, and as provided therein, were to become effective as premium notes in event of the revival by the company of said policies. Said policies were never revived by the company for the reason that Mr. Holmes was accidently killed prior to the time that said applications for revival were received by the company, and while these obligations never became effective for the reason that said policies were not revived, yet I beg leave to return them to you herewith. Please acknowledge receipt thereof. Yours very truly.”
The appellee received the premium note forms and letter
The policy first written contained the following provision:
“7th. Alterations and Waivers. — No person except the president, one of the vice-presidents, the secretary, the assistant secretary or the actuary of the company can alter this contract, or waive any condition, privilege or provision thereof.”
The second policy contained the following provision:
“7th. Modification, etc. — No condition, provision or privilege of this policy can be waived or modified in any case, except by an endorsement hereon signed by the president, one of the vice-presidents, the secretary, the actuary or the associate actuary. No agent has power in behalf of the company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or making or receiving any representation or information.”
Appellant’s home office is at Newark, New Jersey, where its president, all vice presidents, secretaries, and assistant secretaries, actuaries, assistant actuaries and chief medical director are located. Dr. D. W. Fosler, the local examiner who examined the insured when he made his application for revival of his policies, and C. H. Keppel, appellant’s local agent to whom the applications were delivered, each resided in and had their offices in the city of Indianapolis at the time the applications were taken and examination made.
In addition to these admitted facts witnesses testified to substantially the following facts: Sadie Holmes, the widow of the insured testified that Mr. Keppel came to their house with the papers and said to her husband that “he would
The case of Reserve Loan Life Ins. Co. v. Hockett, supra, was a case where the policy of insurance contained a provision that it should not take effect unless the insured was in good health at the time of the delivery of the policy. The application contained a similar provision and bore date of April 5, 1900. The application was forwarded to the home office where it was approved April 9, 1900. The policy which bore date April 5, was then forwarded to the insured who had died on April 8, 1900. The court very properly held that, under the provision of the policy and application, before referred to, the death of the insured made the pro
So with all the cases cited by appellant, they either apply to cases where insurance was applied for in the first instance or to eases where some condition of the revival application was unperformed at the time of the death of the insured, or where the condition of revival provided for the approval of the application for revival during the life of the insured or where some valid reason for refusal to revive existed at the time the revival application was delivered to the agent of the company who had authority to prepare and receive such- application and the necessary papers and unpaid premiums connected therewith. Such eases are very different
The appellant recognizes and treats the signing and delivery of the papers and proof necessary to a revival of such insurance to its local agent authorized to receive them, as a prima facie revival of the policy. This is evidenced by the instructions or directions on the application hereinbefore set out, the second clause of which contemplates that such local agent shall give to the insured a revival receipt and directs that if the application be “rejected” the premium note form must be immediately returned to the applicant and the receipt taken up. In considering a question similar to that here presented the supreme court of Wisconsin in the case of Leonard v. Prudential Ins. Co. (1906), 128 Wis. 348, 107 N. W. 646, 116 Am. St. 50, said: “So the relations between the parties to the insurance contract when the assured made his application to revive the same were not, by any means, the same as those between an applicant for a policy in the first instance, and'the company applied to, as appellant’s counsel contend. In the latter the application could be rejected at the pleasure of the company; the attitude of the applicant being that of one offering to take from another that which such other is not under any legal obligation to deliver. In the ease in hand the attitude of applicant was that of one demanding a right which, upon the conditions precedent in the contract to its ripening into a complete obligation, it was not within the power of appellant to successfully withhold.”
We think the facts of this case bring it within the rules announced in the two eases from which we have just quoted. The appellant through its agent, who had the authority and necessary blanks to' take and receive renewal applications and prepare the required proof connected therewith, solicited the insured to make such application. At his instance, and through him, the insured signed and delivered to appellant all the papers and proof required of him for such purpose, and, before his death, had done all that his contract required that he should do to entitle him to such renewal and all that appellant demanded of him for such purpose. The agreement of the parties shows that such applications were made, and that they, together with the policies and premium note forms were delivered to appellant’s agent on March 22, 1909. The examiner’s report would indicate that the examination was not made until March 26, but this fact is not admitted by appellee. However, in view of the conclusion we have reached on the other branch of the case this phase of the evidence is not of controlling importance. There is no evidence showing
We find no reversible error in the record and the judgment below is affirmed.
Note. — Reported in 105 N. E. 505. As to whether discontinuance of cause of forfeiture revives policy, see 80 Am. St. 305. On the question of the judicial control of discretion as to reinstatement of insured, see 40 L. R. A. (N. S.) 148. See, also, under (1, 2) 25 Cyc. 847; (3) 38 Cyc. 1711; (4) 25 Cyc. 951; (5, 6, 7) 25 Cyc. 956; (8) 25 Cyc. 931; (9) 17 Cyc. 209.