Allen v. Metropolitan Life Ins. Co.

• Decision Date: 21 March 1930
• Docket Number: No. 27677.,27677.
• Parties: ALLEN v. METROPOLITAN LIFE INS. CO.
• Court: Minnesota Supreme Court

229 N.W. 879

179 Minn. 545

ALLEN v. METROPOLITAN LIFE INS. CO.

No. 27677.

Supreme Court of Minnesota.

March 21, 1930.

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Action by Myrtle Allen against the Metropolitan Life Insurance Company. From an order for judgment for defendant notwithstanding verdict for plaintiff, plaintiff appeals.

Affirmed.

A. V. Rieke, Bonita Rieke, and Maurice H. Rieke, all of Minneapolis, for appellant.

Snyder, Gale & Richards, of Minneapolis, for respondent.

STONE, J.

Action on a policy of life insurance resulting in a verdict for plaintiff. On an alternative motion for judgment or a new trial, judgment for defendant was ordered notwithstanding the verdict. Plaintiff appeals.

The policy insured the life of Donald Max Allen, who died November 6, 1927. Plaintiff, his mother, is the beneficiary. Judgment for defendant was directed on the ground that the policy had never been delivered or otherwise become effective as a contract binding upon defendant. In October, 1927, Otto F. Biorn was a soliciting agent for defendant. R. T. Allen, father of the insured, was an agent for a washing machine company. The claim of plaintiff, sustained by the verdict, is that Allen solicited Biorn to buy a washing machine; that, Biorn having no funds for such a purchase, it was agreed that Allen and his son, Donald, should each take out a policy in defendant through Biorn, and that the first premium on Donald's policy, $10.98, should be paid by R. T. Allen's paying that amount to his company as the first installment on Biorn's purchase of a washing machine. R. T. Allen made that payment to his company and took its receipt.

There is no evidence that the arrangement (Biorn denies that it was altogether as Allen claims) was ever even made known to, much less approved by, any agent of defendant other than Biorn. The application for his policy signed by Donald Max Allen, October 17, 1927, was received and approved by defendant at its home office in New York City. The policy was issued October 24, 1927, and sent to defendant's Minneapolis office, with what instruction does not appear. November 3, 1927, three days before the death of the insured, Biorn and another agent for defendant, took the policy to the Allen home for the purpose of delivering it and collecting the first premium. They did not make the delivery because the premium was not forthcoming.

The application of the insured for the policy was an offer on his part. Unless it was accepted, there was no contract. It stipulated as a condition precedent to defendant's liability, not only that the application should be approved by defendant, which it was, but also that a policy should be "issued and delivered" and the first premium "paid to and accepted by the company during the lifetime of the applicant." There is no claim that any of these conditions were waived or that others were substituted. The argument for plaintiff is rather that they were performed — that (1) R. T. Allen's payment of the first installment on the washing machine operated, under his agreement with Biorn, as a payment to defendant of the first premium on the policy; and that (2) the mailing of the policy by defendant to its Minneapolis office was equivalent to delivery to the insured.

1. By statute, G. S. 1923, § 3757, each agent negotiating insurance must be held "the company's agent for the purpose of collecting or securing the premiums therefor." But that implies no...