160 Iowa 223 | Iowa | 1912
The policy in suit is alleged to have been issued by the defendant upon the life of plaintiff’s husband, who, it is claimed, died while the insurance so provided was still in force and effect. The defenses relied upon as stated in appellant’s brief are: (1) That the premium on said policy was never paid, and therefore the contract of insurance never became of any binding force or effect; and (2) that there was never any sufficient delivery of the policy. The testimony in the ease is quite brief and to a considerable extent undisputed. Of the facts admitted or of which there is some support in the record, the following are most material: On June 17, 1910, Louis Unterharnscheidt, residing at Sioux City, Iowa, made and delivered to W. C. Kinzer, resident agent for the defendant at that place, an application for insurance in that company to the amount of $1,000, which application was soon thereafter forwarded to the defendant at its home office. It was also accompanied by a physician’s report of the medical examination of the applicant showing him then to be in good health. This application, as executed by the applicant, shows his agreement to pay a yearly premium of $68.63 in semiannual installments. Among the questions answered in the application was the following: “(15) Has the premium for the first policy year been paid in advance? A. No; (a) cash $5; (b) note or notes $30.70 due July 17, 1910.” Certain agreements were also embodied in the application, among which was the following: “(7) That the in
The application was approved by the company. A policy such as was contemplated in the application was issued July 8, 1910, and registered on the following day in the insurance department of the state of Missouri. It was then mailed to the agent, Kinzer, for delivery to the insured. Accompanying this policy1 was a letter or form -of instructions to the agent
Nor is the jury’s finding in this respect conclusively negatived by the answer found in the application to the question whether the premium had been paid in advance. On the face of it the answer is somewhat ambiguous but not inexplicable. Following the printed question is the word “No,’’ immediately followed by the words, “(a) Cash $5; (b) notes $30.70,” etc. This statement, taken as a whole, may fairly be considered as a somewhat awkward statement or representation tQ the company that the payment had not been made wholly in cash but partly in cash and partly in notes as there indicated. The company was in no way deceived or misled by the statement for it received the notes and retained them.
It is true that appellant disputes some of the statements here recited, and especially the date given for the inception of the fatal illness of the insured, but we think the record does not bear out their contention. There was no medical or expert testimony whatever as to the nature of the illness or of its origin or duration. The wife expresses the opinion or conclusion that he died of pneumonia or typhoid pnehmonia. She says he was not feeling well for several days after about July 16, 1910.' According to her story, however, he- first manifested illness requiring attention on the 23 d day of that month, or at any rate not earlier than the 21st. It is a further material consideration that the insurahce which the company undertook to provide was to be treated as term insurance for the first year, and to be thereafter continued as endowment insurance maturing in twenty years, and, as will be seen by the provisión hereinbefore quoted from the application, the company reserved the right to fix the date “on which the first policy year shall end.” Acting upon this application, defendant made its policy to bear date July 8, 1910, and provided for premiums in semiannual installments computed from the same date. The endowment-period was also fixed or designated as terminating on the corresponding day of the month of the year of maturity.
We come, then, to the inquiry whether, under such a record, a finding that the policy was delivered to the insured in his lifetime can be sustained. As already noted, delivery does not always mean change of manual possession. This rule has been frequently applied in eases like the one now
The controlling question, then, on the subject of delivery is not who has the actual possession but who has the right of possession. Applying these principles to the facts before us, we think the delivery of the policy in question to the applicant had, in contemplation of law, been effected before his death. When his application was accepted at the home office in New York, and a policy issued thereon was placed in the mails for the sole purpose of ultimately reaching his hands, the company parted with its possession and control of the paper. The intention to deliver was complete. The premium money which it had held up to that time upon a conditional trust then became its absolute property. It would have been guilty of no breach of trust in appropriating the fund to its own use. For this privilege thus acquired there must have been a corresponding benefit accruing to the original owner of the fund, and what he acquired in lieu of his money was an insurance upon his life and a right to the policy which evidenced a consummation of the contract. If the delivery was not complete when the policy was mailed, it certainly became so when it reached the hands of the local agent during the lifetime of the applicant and while he was in good health. Construing the act of*233 the company in transmitting the policy to the agent in the light of the contract, it necessarily follows, in the absence of proof to the contrary, that the agent received the policy charged with no other duty except to hand it unconditionally. to the applicant. If this be true, the possession of the agent was the possession of the applicant, and while in the hands of the agent it was simply held by him on deposit or in trust for its real owner. This owner had a right to demand possession of it. Upon refusal he could have recovered it in an action of trover. Conceding this right, we do not see how death can rob the beneficiary of her rights under the contract.
In May on Insurance (3d Ed.) section 55, the author says that, while the act of the company in sending a policy to its agent to be given to the insured upon payment of the premium does not amount to a delivery until such payment is made, yet, where the applicant has done everything that is required of him under his contract, the policy is held merely as a deposit for his benefit. It is said on behalf of Appellant that the policy was not sent to the agent in this case to be delivered unconditionally, but to be delivered only upon condition of payment of the premium and the good health of the applicant and the giving by him of a prescribed receipt for the policy. The letter accompanying the policy is apparently a “form letter” prepared for use in sending out policies to agents for delivery to applicants, and contains general cautionary instructions. It must, we think, be taken, as understood by both company and agent, that such instructions were to be observed and the policy withheld from delivery only where the conditions referred to had not been complied with in advance. But the company could not by such instructions add anything to the obligation of the applicant or to the conditions of the contract. It had already received payment of the premium in cash and notes. The giving of a written receipt for the policy was no part of the contract. The applicant having submitted to a medical examination by the company’s examiner whose report it approved, his good health at that time is to be assumed.
In Fried v. Insurance Co., 50 N. Y. 243, a person applied to the agent of a London company for insurance upon his life. and paid the premium with the understanding that his insurance began at once, but subject to rejection by the company. The policy was issued and sent to the agent, whose instructions were not to. deliver any policy if'any unfavorable change had taken place in the health of the insured. The agent, claiming that such change had taken place, refused to deliver the policy, and the insured soon thereafter died. The court, holding it immaterial whether the action be treated as being brought upon the policy or upon the contract independent of the policy, says of the effect claimed by the company or its instructions given its agent: “The alleged instructions could have no such effect upon the contract. They could not alter or qualify the terms of the contract to the prejudice of the plaintiff.”
In Kilborn v. Insurance Co., 99 Minn. 176 (108 N. W. 861), the applicant, as in this case, gave his note for the first premium. The application was accepted and the policy issued and mailed to the agents on December 23, 1904. On the following day, while the policy was still in the course of transmission through the mails, the applicant was killed. The policy reached .the hands of the agents two days later, and ■they, having learned of the applicant’s death, returned the paper to the company. The notes given by the deceased were marked “void” and returned to the widow who refused to receive them. The company’s defense to an action brought
The ease of Francis v. Insurance Co., 55 Or. 280 (106 Pac. 323), involves circumstances somewhat like those in the Kilborn case, with the additional fact that the application contained a provision whereby the insurance was not to take effect until the premium had been paid in the lifetime and good health of the applicant. A policy was issued and forwarded to the agents, but before it was delivered into the possession of the applicant he died, and the policy was returned to the home office. The trial court having found for the defendant, the judgment was reversed on appeal; the court approving and applying the rule of the Kilborn case and other similar precedents. The opinion restates the rule as follows: “Where a company receives an application for insurance, acts upon it, signs and seals a policy complete in form, and forwards it to its agent for delivery, the policy is deemed to have been issued from the date of its deposit in the mails.” Upon the same general subject the Indiana court has said: “When the company executed and issued a policy in conformity with the application, the contract of insurance was then complete, as it thereby accepted the offer or application of the insured.” New York Ins. Co. v. Greenlee, 42 Ind. App. 82 (84 N. E. 1101).
In Insurance Co. v. Pike, 51 Colo. 238 (117 Pac. 899), the Colorado court deals with a ease having significant like
The rules of law thus affirmed may be applied to the case before us without the slightest injustice to the insurer. Acting upon its reserved right to fix the date of the risk which it undertook to assume, it named July 8, 1910. It demanded and received premium for the initial year beginning upon that date, and computed future accruing premiums therefrom. When the policy had been executed in conformity with the offer of the applicant, the minds of the parties had
Appellant cites the case of Hawley v. Insurance Co., 92 Iowa, 593, as controlling the present issue in its favor, but we think it is not in point. In that case the application was made for the benefit of or at the request of a third person who held a personal claim against the agent of the insurance company ; the plan being to pay the premium by an indorsement or credit upon the agent’s said personal debt. The policy was issued and put into the hands of the agent during the lifetime of the applicant. The agent sent it to a third person with instructions not to deliver it until the promised indorsement was made on his note. Before that was brought about, the applicant died, and it was held by this court that there had been no delivery of the policy or payment of the premium, and the company was not liable. The simple statement of the case and the questions there considered is a sufficient demonstration that their decision in no manner controls the controversy we are now considering.
Y. The appellant complains of the court’s refusal to give certain requested instructions to the jury. The requests were mostly predicated upon the theory that the defendant was entitled to a verdict as a matter of law. The points so made are all governed by the conclusions we have already announced and require no further discussion. There was no error in the ruling.
The defendant also offered to examine the attending physician as to the last sickness of the insured. This testimony was excluded upon the statutory objection thereto. In this there was no error.
There is nothing in the record to justify us in ordering a new trial, and the judgment of the district, court is Affirmed.