54 Neb. 599 | Neb. | 1898
Of date December 16, 1891, there was executed an instrument, in form a policy of insurance on the life of John W. Drewlow, in the sum of $2,000, the beneficiaries therein named being Helen and Bichard Drewlow, the children of John W. Drewlow, and of date August 8, 1893, this action was instituted in the district court of Douglas county by the defendant in error as guardian of Helen and Bichard Drewlow, it being alleged in the petition that the policy of insurance was, of the date we have before stated, issued and delivered to the assured; that he “kept and performed all the conditions and agreements on his part to be kept and performed, and paid the consideration in said agreement mentioned at the time the same was due and payable, excepting the sum of $62.80 falling due on the 16th day of December, 1892, and said sum was on said date duly tendered ■and offered to defendant by said Drewlow.” The death of John W. Drewlow of date March 24, 1893, the furnishing to the company of proof thereof, demand of payment of the amount of the insurance, and failure and refusal by the company were pleaded. In the answer there
We deem it best to first "discuss and determine the question of the sufficiency of the evidence to sustain the verdict. It is urged that the verdict has no support in, and is contrary to, the evidence, and in this connection, also, that the trial court erred in refusing a request to direct a verdict for the company.
One F. H. Chapman was called as a witness and testified that during the winter season of 1891 he was agent or solicitor for the company at Stanton, this state, where Drewlow then lived, and that he, Chapman, employed Drewlow to assist in soliciting parties to take insurance, and further testified substantially as follows: “I took an application from him for a policy of insurance, and forwarded it to the company. I had solicited him for life insurance, and he claimed he could not afford to carry it, so I told him that I would get him a policy any way, and I did so. It was not the understanding that he was to pay for the policy. I told him it would not be necessary; -I would get him a policy without, and I did so. Drewlow spoke the German language, and I was among Germans and he was assisting me, and the question arose often why he did not carry a policy, and I thought I would fix that by getting him a policy, and I did so. The policy was not to be delivered at all. He was not to pay anything for it. He did not pay anything for it. I received the policy within a day or two after its dat&,
On cross-examination his testimony was in part as follows:
' Q. At the time you got this policy, what date was it with respect to the date of the policy?
A. Probably one day after, or the same day perhaps. Probably one day later though.
Q. After you got this policy up there did you deliver it to Mr. Drewlow?
A. We officed together. •
Q. It is a fact that the policy was turned over to him?
A. Well, yes.
Q. Now, on Christmas day you and Mr. Drewlow came down here to Omaha?
A. Yes, sir.
Q. And at the time this policy came to you, there was a receipt for the first premium that came with it?
A. Yes, sir.
Q. And when you came back down here to Omaha you brought that receipt back?
A. Yes, sir.
*606 Q. And you went in with Mr. Drewlow and had a talk with Mr. Hunter and Mr. Wigton?
A. Yes, sir.
Q. And in which you told them that Mr. Drewlow had . concluded not to take this policy?
A. No, I told them that he was not to take the policy; that he said he could not pay for it and he didn’t want to take the policy. They urged him at that time to take the policy.
Q. Didn’t they say to him — didn’t Mr. Hunter say to him at that time that he could take the policy and pay for it out of the premiums he would make from business you and he could obtain?
A. Yes, sir.
Q. And subsequently you went out?
A. Yes, sir.
Q. And when you came back Mr. Hunter told you that Mr. Drewlow had concluded to take the policy?
A. Yes, sir; he said that Drewlow had concluded to take the policy, but the facts of the case were-
Q. Now, did you mean that Hunter said the facts were?
A. No, that was mine.
Q. What else did Mr. Hunter say about that at that time?
A. There was nothing in particular.
Q. Who was Mr. Hunter?
A. Mr. Hunter was the general manager.
Q. How?
A. General manager.
Q. He was general manager of the company?
A. Yes, sir.
Q. And this conversation took place at its home office here in Omaha?
A. Yes, sir.
Q. In Christmas, 1891?
A. Yes, sir.
Q. Mr. Hunter was the man under whose supervision you were acting as agent?
*607 A. Yes, sir.
Q. Now, isn’t it a fact that after you went back to Stanton this policy was delivered to Mr. Drewlow?
A. He had possession of it all the time. He had possession of it in this way: we had our office together. Yes, sir; I gave him the policy, and when we solicited insurance he pulled his policy and showed them.
Q. He took the policy along with him when he went with you to solicit insurance?
A. Yes, sir.
Q. And had possession and control of it?
A. Yes, sir.
Q. And Mr. Drewlow assisted you in soliciting insurance during the months of February and March?
A. Well, Drewlow didn’t do very much. He worked with me for a while, and saw a good number of people, and then, when I would insure a man, he would come in for his part of the commission; and if I was allowed to say what I started to say a Avliile ago I could explain that a little.
Q. Well, go ahead and let us have the explanation.
A. Mr. Hunter told me at the time that Mr. Drewlow and Hunter and I were talking, and when Mr. Hunter made the remark that he would take the policy, of course he knew nothing of our private matters. Drew-low was not good pay, and I did not want to deliver him the policy. I had no intention of delivering him the policy without he paid for it. He never paid for it.
Q. You simply delivered him the policy and he never paid for it?
A. It had been delivered prior to that.
Q. And after that he assisted vou in soliciting insurance?
A. Yes, sir.
Mr. A. L. Wigton, secretary of the company, was present in the office at Omaha when Chapman and Drewlow were there and gave up the receipt, and testified to its being given to the cashier and destroyed, and a record
The cashier testified in the main the same as the secretary, and further as follows: “The company first learned in November, 1892, that Drewlow, or some person for him, was claiming that the policy was in force. Mr. O’Halleron came in and asked when a second premium would be due. The first premium was never paid. I keep the books of the company. 'When this policy was sent out with the receipt for the first premium, the amount of the receipt was charged to the account of Chapman; that was the usual and ordinary way of keeping an agent’s account; but it is an agent’s account — sort of a memorandum account. Whenever a policy was sent to an agent, it is charged to his account, and he is held responsible for it until the receipt is returned or the money paid.”
The witness Chapman was called for the defendant in error on rebuttal and stated as follows:
Q. Mr. Chapman you may state whether or not during the time you have been transacting business for the Union Life Insurance Company it has been customary and usual for you to settle for and collect premiums upon policies solicited by you and issued through you, as agent, in such manner and upon such terms as you saw fit.
A. The company require a certain amount of money from me on each policy. They hold" me for that. The settlement I malee with the — . The settlement with the parties I make myself. -
Q. Has it been customary and usual for you to extend ■credit to parties for the first premium, if you saw fit?
*609 A. Yes, sir; that is, on the payment of the first premium. I have arranged the payment of it.
Q. You may state whether or not you did that with respect to policies issued while you and Drewlow were acting together at Stanton.
A. Yes, sir.
One Walter Lucas was interrogated on rebuttal in regard to a conversation between Chapman and Drew-low relative to the policy, and whether he had heard it. He stated that he did, and was further asked and answered:
Q. I will ask you whether or not upon that occasion Mr. Drewlow gave a revolver to Chaphaan and said that makes us square on the premium on my life insurance, and Mr. Chapman answered, Yes, that straightens it up?
A. He did.
Q. Did you hear that conversation?
A. I did, sir.
He also said that he had been in possession of and carrying the revolver for some time prior to the conversation and Drewlow asked him, the witness, for it, saying that it was to be delivered to Chapman to finish the payment for the policy.
George E. Bryson testified that at three or four different dates during the month of January, 1892, Chapman told him, the witness, that Drewlow had paid the first premium on the life insurance policy. These were all at times when Chapman was soliciting the witness to make application for insurance.
From an inspection of all the evidence it is clear that the policy did not become operative and of effect by its delivery to Drewlow to use as a “decoy policy,” as some of the witnesses expressed it, or in the soliciting of insurance to induce persons asked to insure to believe that Drewlow was a policy-holder. Neither, if believed in all ith statements, could it be drawn from the testimony relative to the delivery of the policy, and a receipt for the fipst premium to Drewlow by Chapman immediately
It is argued that the trial court erred in admitting in evidence the insurance policy, on which the suit was predicated, when offered. The ground of the objection and basis of the argument is that at the time it had not been shown that the premium had been paid, or that there was no evidence that it had ever become operative as a contract. That the policy, in the form in which it was offered, had been signed and sent to its agent for delivery was of the facts admitted by the pleadings. This being true as to the policy in suit, it was admissible without further proof; that the first or any premium had not been paid was of the matters placed in issue by the pleadings, and the burden of its proof was on the company.
It was assigned for error that the court overruled the objection on the part of the company to the introduction of the receipt by Chapman to Drewlow for the amount of the first premium. With the view we have taken of the authority of Chapman to settle with Drewlow for this amount, this piece of evidence was entirely competent and receivable, and the same may be said of the third assignment of error, which was in relation to a portion of the testimony of the witness Lucas in which he was allowed to detail the receipt of certain property by Chapman from Drewlow as payment of the balance of the first premium.
During the argument of the cause to the jury the following was made of record: “And both parties having rested, the case was argued to the jury by counsel for each party, whereupon, during the closing argument made by H. C. Brome, Esq., in behalf of the plaintiff, the said H. C. Brome commented upon the testimony on the trial by the witnesses Walter Lucas and George E.Bryson, and argued to the jury that the testimony of said witnesses ■showed that the first premium on the policy had been
It is of the errors assigned and argued that the third paragraph of the charge to the jury was improper, in that it submitted to that body the query of whether Drewlow, during life and good health, paid the first premium to Chapman, the company’s agent. This question
It is argued that the court erred in giving in its charge to the jury the paragraphs numbered “4” and “5.” These are in the following terms:
“4. The defendant has alleged that said policy was obtained from it by fraud. Fraud is never presumed, but must be proved by a preponderance of all the evidence by the party claiming the existence thereof. If you believe from the evidence that said policy was obtained in the first instance under an agreement entered into by said Drewlow and Chapman that said policy should not be paid for and should be used by Drewlow solely for the purpose of showing it and soliciting risks for said company, and that defendant was ignorant of said facts, then' you are instructed that such conduct on the part of said Drewlow constituted a fraud sufficient to render the policy void; and said policy could thereafter be made valid only by a new delivery with the intent of defendant and deceased that it should be binding on both.
“5. You are further instructed, if you find from the evidence that said policy was delivered without requiring payment of the first premium and without any intention on the part of said Drewlow of taking and retaining said policy and paying the premiums accruing thereon, but that subsequently it was agreed between said Drewlow and the general manager of said defendant company that Drc wlow should retain said policy and should pay to said defendant the amount of the first premium thereon at a later date, then you are instructed that such transaction amounted to a valid delivery of the policy and a giving of •credit for the.first premium, and said policy took effect and became a binding contract at and from the time such arrangement was made, and for all the purposes of this •case it would be immaterial whether such first premium*616 was ever paid or not; and if you find such arrangement was made and such credit was given, plaintiff will be entitled to recover in this case.”
In the brief it was stated: “It will be observed that by these two instructions the court submitted it to the jury to determine whether or not there had been a subsequent delivery of the policy, or whether or not there had been an agreement to waive the payment of the first premium. There was not, in my judgment, a particle of evidence justifying the submission of these questions to the jury.” An examination of the evidence has convinced us that there was sufficient in the narration of what occurred between the general manager of the company and Drew-low and Chapman to warrant and to require the submission to the jury of the question of it being then agreed that Drewlow was to keep the policy and pay the premium from commissions earned in soliciting insurance, and that there was not submitted whether there was a “waiver of the payment of the first premium,” but whether, as stated by the court, “credit” or time had been given within which it should be paid. It was further argued in this connection that these two paragraphs of the instructions embodied a proposition of fact to be settled by the jury which was not of the issues presented in the pleadings. Of the allegations of the petition was the following:
“3. That on the 16th day of December, 1891, one John W. Drewlow, a resident of Stanton, Stanton county, Nebraska, entered into a certain written agreement with the defendant Union Life Insurance Company of Omaha, Nebraska, by virtue of which agreement said defendant was, for a consideration to be paid by the said John W.. Drewlow to this defendant and in accordance with certain conditions'and reservations in said agreement set forth, to pay Helen and Richard Drewlow, his children, or their executors, administrators, or assigns, upon satisfactory proof of the death of the said John W. Drew-low, after deducting therefrom all indebtedness due to-*617 the company, the Union Life Insurance Company of Omaha, Nebraska, from said John W. Drewlow the sum of two thousand dollars ($2,000).”
Of this there was a denial in the answer, and, as we have hereinbefore set forth, there were also certain affirmative statements on the subject of the delivery of the policy which were denied in the reply. Under the allegation that the agreement “was for a consideration to be paid by Drewlow,” and its denial, the matter of the contract between the manager and Drewlow was fairly within the issues, and where a credit is extended for the payment of a premium, of which payment is required to constitute the policy of force, the policy becomes operative and binding. (Miller v. Brooklyn Life Ins. Co., 12 Wall. [U. S.] 285; Boehen v. Williamsburgh City Ins. Co., 35 N. Y. 131; McAllister v. New England Mutual Life Ins. Co., 101 Mass. 558.)
At request of defendant in error the following instructions were given:
“1. You are instructed that what purports to be a copy of the application piinted and written on the back of the policy is not in evidence and should not be considered by you.
“2. You are further instructed that the printed indorsement on the back of the policy, entitled ‘notice to the policy holder,’ is no part of the policy, is not in evidence and should not be considered by you.”
It is asserted that this action was of prejudice to the right of the company, in that there was thereby withdrawn from the consideration of the jury the fact that in the application and on the back of the policy there appeared notice to the party to be insured or a stipulation to the effect that the policy could not and did not become of force until the first premium had been paid during the life and good health of such party, and that there appeared further on the back of the policy, that no agent had authority to collect the first premium unless there was in his possession a receipt for the premium signed by
No errors were assigned and presented which call for a reversal of the judgment and there must be an affirmance.
Affirmed.
