131 P. 35 | Wyo. | 1913
The plaintiff in error, Wheelock, brought this action in the District Court of Eremont county against the defendant in error, Clark, on a promissory note. There was a trial to a jury resulting in a verdict for defendant, judgment was entered on the verdict, and Wheelock brings error.
The undisputed facts are that Wheelock was the general agent at Denver, Colorado, of the Northwestern Mutual Life Insurance Company of Milwaukee, Wisconsin, and that Allen & Galloway, the payees of the note, were the special agents of the plaintiff for soliciting applications for life insurance for said company under the direction and control of Wheelock. That on Nov. 10, 1909, Allen & Galloway procured from the defendant, Clark; an application for insurance on his life in said company in the sum of $10,000, and at that time they took defendant’s note for the amount of the first annual premium, which note is as follows:
“$401.70. 4694-1. Lander, Nov. 10, 1909.
Nov. nth, 1910, after date I promise to pay to the order of Allen & Galloway, at Noble, Lane & Noble Bank, Lander, Wyo., Four hundred one and 70-100 Dollars, Value received, with interest at the rate of eight per cent, per annum, from
William’ Scott Clark, Insured.
No.Due ii-ii. .Beneficiary.”
At the same time said agents, Allen & Galloway, executed and delivered to Clark a receipt as follows:
“No other form of receipt for advanced premiums will be recognized by the Company.
An application for a $10,000.00 policy having been made by Wm. Scott Clark to The Northwestern Mutual Life Insurance Company, there has been collected of him Four hundred one and 70-100 Dollars, to be considered the first annual premium on said policy, provided the application is approved by the Company at its home office, and in that event the insurance as applied for will be in force from the date of the medical examination. If the application is not approved, the sum collected will be returned. Lander, Nov. 10, 1909.
Allen & Galloway, Agents.
767437. If the premium is paid in advance this receipt must be completed and given to the applicant; if the premium is not paid the receipt must not be detached.”
On the same day the applicant was examined by the company’s local medical examiner, and Allen & Galloway indorsed the note and forwarded it together- with the application and medical examiner’s report to Wheelock, who forwarded said application and report to the home office of the company at Milwaukee, where they were received Nov. 15, and were in the hands of its medical director on the same day. Nov. 16 Clark telegraphed the company as follows:
*307 “Northwestern Life Ins. Co., Milwaukee, Wis. Cannot accept policy applied for agent Allen & Galloway. Have written. William Scott Clark. 553 P.” In the letter referred to in the telegram and mailed the same day and addressed to the Secretary of the company, he said: “Confirming.my telegram to you of this date I wish to reiterate, that after more mature deliberation, I have determined that my circumstances at the present will not permit of my accepting the policy applied for some days ago in your company through your agents, Mess. Galloway & Allen, and I will ask you to cancel the application and advise your agents to return my note for $401.70, to the Noble, Lane & Noble bank here, when settlement receipt No. 767437 will be immediately forwarded to you or them.” Nov. 17 the company’s medical director wrote Wheelock: “We are just in receipt of a telegram from Mr. William Scott Clark advising that he cannot accept his policy. Will you kindly advise us further relative to the case and oblige.” To which Wheelock replied Nov. 19: “We have yours of the 17th in reference to a telegram from William Scott Clark that he cannot accept policy for which he recently applied. We would ask that you kindly issue the policy as applied for, and our agents will take the matter up with Mr. Clark.” The application was not acted upon, approved or accepted by the company until Nov. 23, when it was approved, and on Nov. 26 a policy was issued arid dated Nov. 10, 1909, and was forwarded to Clark, who refused to accept it and returned it to the company.
The facts being as above stated, we have no hesitancy in holding that no contract of insurance was entered into between Clark and the company. His application was a mere proposal to enter intp a contract, and until accepted by the company no contractual relations existed between them, and until such acceptance he had a perfect right to withdraw his proposal. In Travis v. Nederland Life Ins. Co., 104 Fed. 486, 43 C. C. A. 653, the Circuit Court of Appeals (Eighth Circuit) speaking through Judge Sanborn, said; “Ain ap
It is further contended by counsel for plaintiff in error that the court erred in refusing to give to the jury certain instructions requested, by plaintiff. Those instructions were based on the theory that the application and receipt constituted a contract of insurance which Clark could not rescind without the consent of the company. They were not applicable to the facts as shown by the evidence, and were properly refused. On the facts as shown by the record, the court would have been warranted in instructing the jury to return a verdict in favor of the defendant. No prejudicial error being made to appear, the judgment of the District Court is affirmed. Affirmed.