156 Ga. 372 | Ga. | 1923
(After stating the foregoing facts.)
The decision in this case depends upon the question whether, there was such a delivery of -a-policy of insurance, ..during the-lifetime of 'the applicant for the policy, as transformed .the applicant into an insured: The law notes such a wide difference between-, these two relations that the distinction between an applicant -for a policy and the holder of a policy is ofttimes all important.. - -
Leo B. Phillips applied to the insurance company for a policy' of $2000 on his life. In his-application he stipulated "that this, policy is not to take effect unless I am alive and in good health at the time of its delivery to me.” At -the time of issuing the policy the company put the following condition in it: "This policy "is, not to. take effect unless the insured is alive and in'good health at-; the time of its delivery, nor then unless the first premium has been. paid.” It appears from the1 evidence that the first premium had • been r paid, and consequently no question arises upon that pha'seof the ca?e. -There-was introduced in evidence a,receipt.for Leon B. Phillips to sign; but it is not necessary to-consider this evidence-, further that as a circumstance illustrating the intention of the in- , surer, even if it be relevant for that purpose. The-proposed contract .of insurance. consisted of the application and'the' policy;, and as both of these papers as signed by each of'the parties con- ; tained the.same stipulation.,• we shall first consider-this portion pf ’ the contract. It is well settled, of -course, that contracts of in- . surance as.prepared.and proposed by insurers are to be construed,., most, strongly; against 'the, insurer. Arnold v. Empire Mutual Annuity & Life Insurance Co., 3 Ga. App. 685 (60 S. E. 470). For:., this reason we. are of the .opinion that, the words, "at-the time; of
The evidence shows that there was in this case no actual delivery to Leo B. Phillips during his lifetime; but it is insisted by the defendant in error that the payment of the first annual premium, acceptance and approval of the application, the preparation and issuance of the policy, and the mailing of the policy to the agent at Valdosta for transmission to the insured completed the contract of insurance, and that accordingly the policy was in force at the time of the death of Leo B. Phillips. The defendant in error contends that although the policy did not actually reach the hands of Leo B. Phillips prior to the time of his death, such delivery was not necessary as a condition precedent to the consummation of the contract. We agree to the proposition that actual delivery of a policy of insurance is not essential to the validity of a contract of life insurance, unless expressly made so by the terms of the contract. New York Life Insurance Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134); Devine v. Federal Life Insurance Co., 250 Ill. 203 (95 N. E. 174). It is not to be doubted that constructive delivery of a policy of insurance is sufficient unless the contract otherwise provides. But even conceding that this policy of insurance be construed most strongly against the insurer, and considering that the word “ me,” liberally construed in behalf of the applicant, would include delivery to any agency acting in behalf of the applicant to whom the policy might have been delivered, it would have to be shown that there was a delivery by the insurer of the policy to some one acting for the applicant, before there could be said to be a delivery “to me.”
We agree with the contention of the defendant in error that the stipulation does not' necessarily require an actual delivery; but even if we indulged the utmost strictness of construction against
It appears from the agreed statement of facts that the applicant for the policy was accidentally killed on the morning of May 21, and the policy of insurance was not received by the agent at Valdosta until the morning of May 22, though the mail which contained the policy reached Valdosta some time in the night of May 21. From this it appears that the policy of insurance could not have been delivered to the applicant either while in good health or during his lifetime. Nor could it have been delivered to any agent for the applicant before his death, unless the agent of the company was also the agent of the applicant, clothed by him with authority to accept and acknowledge receipt of such policy. There is no evidence that the agent of the company occupied any fiduciary relation towards the applicant; and in fact it would not have been legal for him to have occupied such a position of dual agency without the consent of the insurance company. The law properly follows the Gospel. “No servant can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.” Luke, 16th chapter, 13th verse. Following this rule, which is based upon the experience of humanity and expressed by Him who spake as never man spake, the same doctrine has been adhered to by this court. See Ramspeck v. Pattillo, 104 Ga. 772 (30 S. E. 962, 42 L. R. A. 197, 69
Counsel for defendant in error rely upon the cases of Stevenson v. Allison, 165 Ala. 238 (51 So. 622, 138 Am. St. R. 26), Francis v. Mutual Life Insurance Co., 55 Oregon, 280 (106 Pac. 323), Thompson v. Michigan Mutual Life Insurance Co., 56 Ind. App. 502 (105 N. E. 780), Unterharmscheidt v. Missouri State Life Insurance Co., 160 Iowa, 223 (138 N. W. 459, 45 L. R. A. (N. S.) 743), and Kilborn v. Prudential Insurance Co., 99 Minn. 176 (108 N. W. 861), to support the proposition that “The mailing, with postage prepaid, of the policy here involved to the company’s agent at Valdosta, Georgia, was a delivery of such policy to the agent; and where such mailing to its agent was for transmission to the insured, the delivery to such agent was tantamount to a delivery to the insured.” The eases all differ as to their facts from the case at bar, and, as we have already ruled, the question of ■the intention of the insurer to deliver a contract of insurance is to
The Thompson case, supra, merely decides the principle to which we have just adverted, that the delivery would have been good if the local agent had received the policy while the applicant was alive and in good health. In the Unterharmscheidt case, supra, the policy was mailed and received at the agent’s office for delivery not later than July 20, prior to the date of the beginning of the sickness (July 23) from which the insured died. Instead of the company’s agent being at his office he was absent when the policy was received, and did not return until August 7, nearly two .weeks after the insured had died. The delay in delivery was altogether chargeable to the insurer, because there was time in which the policy could have been delivered to the applicant while he was in good health. The Kilborn case, cited supra, has no bearing whatever on the case before us, where the question sub judiee is as to a stipulation requiring the validity of the insurance to depend upon whether the delivery of .the policy.is made during the,life and good health of the applicant. In this case it is conceded that the
While' it is stated in the agreed statement of facts that the policy in this case was forwarded to W. J. Scheider for transmission to Leo B. Phillips, and therefore it may be immaterial that both Schneider and Creel were agents of the company, the undisputed fact remains that Scheider did not receive the policy until after the death of Phillips, the applicant. It cannot be presumed that the insurer intended (when it mailed the policy at Indianapolis) for Scheider to deliver the policy even if Phillips were dead; and unless this be true, to impute to the insurer an absolute intention to deliver the policy merely because the policy was mailed before Phillips died would be altogether unreasonable.
We think the Court of Appeals erred in misconceiving the facts in the case and the practical results necessarily flowing therefrom, and that the judgment of that court should be reversed.
Judgment reversed.