Aetna Life Ins. Co. v. Roewe

• Decision Date: 26 March 1930
• Docket Number: No. 4244.,4244.
• Citation: 38 F.2d 393
• Parties: ÆTNA LIFE INS. CO. v. ROEWE.
• Court: U.S. Court of Appeals — Seventh Circuit

38 F.2d 393 (1930)

ÆTNA LIFE INS. CO. v. ROEWE.

No. 4244.

Circuit Court of Appeals, Seventh Circuit.

March 3, 1930.

Rehearing Denied March 26, 1930.

Frank H. Sullivan, of St. Louis, Mo., for appellant.

Rudolph J. Kramer, of East St. Louis, Ill., for appellee.

Before EVANS, PAGE and SPARKS, Circuit Judges.

PAGE, Circuit Judge.

This appeal is from a judgment in favor of appellee, Roewe, beneficiary under a policy on the life of Moore, who died about five weeks after the policy was delivered to him, without payment of the first premium thereon.

Appellee's contentions are: (a) That under the Illinois statute, Orr, the soliciting agent, had the power to, and did, waive the payment of the first premium; (b) that, under the contract of insurance, drafts were to be drawn by appellant's general agent for premiums, and, as no drafts were drawn, appellant, and not Moore, was in default.

The facts are substantially uncontradicted.

Moore and Roewe, as partners, were professional accountants, at East St. Louis, Ill., and made separate applications for insurance, in which each named the other as beneficiary. The Moore policy, together with the receipt for the first premium, was, according to the custom of appellant, sent to Orr. Because further examination was required of Roewe, his policy was delayed. Orr says that, because of the request in the application that draft be drawn for the premiums, he assumed that he was not to collect any premiums, and therefore delivered the policy to Moore without requiring payment of the first premium. However, he told Moore then, and again a few days before Moore's death, that the premium should be paid to put the policy in force.

The only contradiction in the evidence is in this: Orr testified that shortly after Moore's death appellee told him that the reason why the Moore premium had not been paid was that he (Roewe) intended waiting until the Roewe policy was also delivered; Roewe admits a conversation with Orr at that time, but denies using the language as related by Orr. However, Roewe, after testifying that he had made no arrangement with the bank about paying drafts to be drawn for premiums, further testified:

"I hadn't made the definite arrangements with the bank on account of waiting until my policy would also come through, so I would know the amount we should charge every three months against the joint account."

That is very close to what Orr said Roewe had told him, and seems to show the reason why the Moore premium was not paid.

The Illinois statute relied upon provides (paragraph 346, c. 73, Cahill's Illinois Rev. Stats.):

"Who Agent of Foreign Company. § 23. Whoever solicits insurance on behalf of any life company not chartered by and not established within this State, or transmits, for any person other than himself, an application for life insurance, or a policy of life insurance, to or from such company, or advertises that he will receive or transmit the same, shall be held to be an agent of such company to all intents and purposes, and subject to all the duties, requisitions, liabilities and penalties set forth in the laws of this State relating to life insurance companies not incorporated by the Legislature thereof."

That statute simply means that a foreign corporation, which accepts applications from any solicitor, must also accept him as its agent. Nothing is said in the statute as to whether such agency is a special or a general one, or what powers such an agent has. Those are matters to be determined from the facts in each case under the general law relating to agency.

It is not denied that Orr was the agent of the company, but it is denied that it was within his power to waive any conditions of the policy. The case of Hancock Life Ins. Co. v. Schlink, 175 Ill. 284, 51 N. E. 795, 796, relied upon by appellee, is very different, upon the facts from this case, and the holding of the court there was:

"If Ballance was the agent of appellant, as we think he was, with power to solicit insurance of Schlink, receive the application, forward it to appellant, receive the policy when issued, collect the premium, and deliver the policy, then he had power to waive a condition of the policy."

That is an opinion of the court upon the general law of agency, and is not the construction of any statute. It is not binding upon this court, and is not in harmony with the law in the federal courts. Ætna Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; MacKelvie v. Mutual Benefit Co., 287 F. (2nd C. C. A.) 660, 663.

Upon its face, the Moore policy provided:

"This policy is issued and accepted subject to all of the conditions, benefits and privileges described on the following pages, which are hereby made a part of this contract."

A rider attached to the policy reads:

"This policy and the application herefor, a copy of which application is attached hereto and made a part hereof, constitute the entire contract between the parties hereto."

On the back of the policy is the following:

"This policy shall not become effective until the first premium upon it is paid during the good health of the insured."

Another provision is:

"All agreements made by the Company are signed by its President, Vice President, Secretary, Assistant Secretary, Treasurer, or Assistant Treasurer. No other person can...