Rossiter v. Ætna Life Insurance

91 Wis. 121 | Wis. | 1895

PiNNey, J.

The written policy that the defendant issued on the life of G. W. Rossiter, and forwarded to its agent for ■delivery, was never in fact delivered, and did not become a binding contract between the parties. The only ground upon which the plaintiff’s recovery can be sustained is that the defendant had entered into a valid executory agreement with Rossiter, during his lifetime, to insure his life for 110,00o1 for the plaintiff’s benefit. The evidence bearing on this question has been fully stated, and it is very brief and does not ■admit of misapprehension. Putting the facts together in the order in which they occurred, it is evident that the negotiations for the issue of a policy of insurance to Bossiter began about the middle or latter part of August, 1889, and probably at or about the time the latter made his written application, which was dated back to August 10th so he could be insured as being of the age of twenty-nine years. This application was for a written policy, and in it Bossiter agreed that “ the insurance hereby proposed shall not be binding on said company until the amount of premium, as stated therein, shall be received by said company or an agent thereof, during the lifetime of myself, and a receipt given therefor, signed by the president or secretary of the company.” Whether this application was delivered contemporaneous with, or prior to, or subsequent to, the conversation between G-. W. Bossiter and the agent, testified to by E. Bos-siter, is not material. If the conversation was first in order of time, or contemporaneous with the delivery of the application, the written document must be taken as the true expression of the state of the negotiation and the relative position and rights of the parties. If the conversation occurred subsequently, the evidence of the witness was not sufficient to go to the jury as independent evidence of a parol contract for insurance, or as evidence of any material modification of the existing stipulation, except in respect to the manner in which the first half of the first instalment of premium was to be paid; and in respect to that the witness •simply says that “ it was to be taken out by Mr. Barker,” the agent. lie testified there was nothing said about the ■other half that he could remember, and that he could not remember what his brother said about it, only in that way. The matter appears to have remained in this condition until September 5th, when the defendant’s agent Barker notified Eossiter, by letter of that date, that be had his policy for $10,000, and would be with him Saturday. The matter continued in this situation until September 14th, clearly on the basis of the written application, and evidently with the expectation that the transaction would be concluded by the delivery of a written policy upon the° basis of the written application, save that there is evidence that the first half of the first premium was “ to be taken out by Mr. Barker,” and up to this time there is no evidence whatever of any other agreement, or tending to show any contract for insurance on the life of Eossiter which was to be binding upon the company until the entire first premium should be paid, and in Eossiter’s lifetime, as stipulated in the written application.

If the case had stopped here, it would have been too clear for question, and it only remains to consider the effect of the receipt (“form 78”) dated August 28, 1889,’but which was left with the night clerk of the hotel Eossiter was keeping on the 14th of September, about 7 o’clock in the evening,— two days before he died. Barker, the defendant’s agent, as the plaintiff’s evidence shows, had received the written policy to deliver, and was at G. W. Eossiter’s hotel with the intention — presumably, at least — of closing the transaction, and delivering the policy accordingly; but he was unable to find Eossiter or get his attention to this business. The night clerk, Thomas, testified that an envelope containing the receipt was handed to him by Barker, with instructions to give it to Eossiter; that Barker said “ that he had looked around the house and could not find him, and that he had to go away on the train.” The night clerk put the paper in the cash box. E. Eossiter testified that Barker told him that evening: “I have left a receipt with your night clerk for your brother’s insurance. Your brother has been pretty busy all day, and I did not care to bother him. If anything should happen to him, his insurance will hold good from this time as well as though he had the policy. I will either bring the policy up or send it up by Mr. Gilman later on,”— and that he told him to tell his brother what he had said, and that he did so. This is the substance of what transpired. In the first place, it is material to observe that this evidence shows that Barker and G. W. Rossiter either did not meet that day, or that nothing transpired between them on the subject of insurance. Certainly, there is not the slightest evidence of any new contract made that day between the parties, or of any modification of the existing arrangement. There is no evidence from which a jury could be allowed to infer that there had been any meeting of the minds of the parties .on any new proposition or contract. What the effect would have been if the agent had met Rossiter and made to him -the statements testified-to'by these, witnesses, and he had received from him the receipt and had assented to its terms, ,we have no occasion to consider. ■ Although E. Rossiter testifies that he told his brother what the agent said, there is .no pi’oof that G. W. Rossiter ever spoke va single word in reply, or ever saw the receipt, or that the night clerk or any one ever gave it to him. For these reasons the receipt is not available as evidence of any contract for insurance, and affords no proof of any alteration of the previously existing arrangement, as disclosed by the testimony. There was clearly no evidence of any completed or binding contract of or for insurance between the parties at the time of G. W. Rossiter’s death, to take the case to the jury; and the circuit court erred in not. directing a verdict, as requested, for the defendant.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.