56 Ind. App. 502 | Ind. Ct. App. | 1914
Suit upon a life insurance policy alleged to have been issued on the life of Lulu Thompson, deceased. This is the second appeal of the case. Michigan Mut. Life
The complaint alleges full performance of the conditions of the insurance contract on the part of the insured, and of appellants, her children, who were named as beneficiaries. Issues were joined by a general denial. At the close of the appellants’ evidence the court sustained appellee’s motion for a peremptory instruction directing a verdict in its favor. A verdict was returned in accordance with such instruction and the action of the court in so instructing the jury is assigned as cause for a new trial. The motion was overruled and this action of the court is the error assigned and relied on for reversal.
The certificate of the judge shows that the appellants presented their bill of exceptions on December 21, 1911, and prayed that the same be signed, sealed and made a part of the record. On January 5, 1912, the judge made another certificate which is also attached to the bill and shows that “the bill of exceptions heretofore taken under advisement” had been examined by him and he certifies that the same is true and correct; that it contains all the evidence given in said cause and all objections and rulings thereon “and
The principal facts of the case are stated in the former opinion and will not be repeated here except where necessary to a decision of the questions presented by this appeal. Both the application and the policy provide that the contract shall not take effect unless the first premium is paid and the insured is in good health at the time of the delivery of the policy.
In the former opinion it is said: “The validity of the policy depends upon two conditions: (1) Whether the first premium was paid to any agent of appellant authorized to receive it; (2) whether, at the time it was delivered to appellant’s agent at Evansville, the insured was in good health.” On the facts of the case as presented on the former appeal, this court held that one Yeatch, who procured the application for the insurance, was the agent of the insured, but said: “Had the appellant received the money, or had knowledge of its payment and acted upon the application, under the authorities cited by appellees, it would have made Yeatch its agent by ratification.” The court also held that “Whether, upon a given state of facts, a person
On the facts of the case as now presented, appellants contend that there is evidence which warrants the finding or inference (1) that Tate was a general agent with authority to employ subagents; (2) that payment of the premium was made to Veatch who was an authorized agent of appellee to receive the same by virtue of his arrangement with Tate; (3) that by acting on the application secured by Veatch the Company made him its agent and can not deny his authority in this transaction; (4) that the insured was in good health when the policy reached the office of Tate, the agent of the company, at Evansville.
On the question of the delivery of the policy the former opinion in this ease on page 185 holds that: “The receipt by an agent from his insurance company of a policy to be unconditionally delivered by him to the applicant is, in law, tantamount to a delivery to the insured, though the agent never surrenders possession of the policy, and though its delivery to the applicant is by contract made essential •to its validity. Neff v. Metropolitan Life Ins. Co. (1906), 39 Ind. App. 250, [73 N. E. 1041] and cases cited; Yonge v. Equitable, etc., Society (1887), 30 Fed. 902; 1 May, Insurance (4th ed.) §60.” The only conditions in reference to the delivery of the policy are those shown in the former opinion and contained in the policy itself, viz., that the first premium he paid in cash and that the insured he in good health when the policy is delivered. There is evidence tend
For the error of the court in directing a verdict for appellee the judgment is reversed with instructions to sustain appellant’s motion for a new trial.
Note. — Reported in 105 N. E. 780. As to agency to make sales, and whether it includes authority to receive payments, see 47 Am. Rep. 519. As to the conclusiveness of prior decisions on subsequent appeals, see 34 L. R. A. 321. As to the effect of stipulation in application or policy of life insurance that it shall not become binding unless delivered to assured while in good health, see 17 L. R. A. (N. S.) 1144; 43 L. R. A. (N. S.) 725. See, also, under (1, 2) 3 Cyc. 108; (3, 4) 3 Cyc. 395; (5) 22 Cyc. 1429; (6) 31 Cyc. 1251; (7) 3 Cyc. 399; (8) 31 Cyc. 1205; (9) 22 Cyc. 1433; (10) 22 Cyc. 1431; (11) 25 Cyc. 947; (12) 38 Cyc. 1532; (13) 25 Cyc. 722.