American Nat. Ins. Co. v. Few

• Decision Date: 14 April 1932
• Docket Number: 1 Div. 635.
• Citation: 224 Ala. 576,141 So. 234
• Parties: AMERICAN NAT. INS. CO. v. FEW.
• Court: Alabama Supreme Court

141 So. 234

224 Ala. 576

AMERICAN NAT. INS. CO. v. FEW.

1 Div. 635.

Supreme Court of Alabama

April 14, 1932

Appeal from Circuit Court, Clarke County; T. J. Bedsole, Judge.

Action on a policy of life insurance by Ethel Few against the American National Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Tucker & Mabry, of Grove Hill, for appellee.

KNIGHT J.

Suit on an insurance policy brought by plaintiff (appellee) against the defendant (appellant). The policy was issued upon the life of appellee's husband, Jerry G. Few.

Jerry G. Few and his wife, Mattie Ethel Few, resided at Walker Springs, in Clarke county. The appellant has its home office at Galveston, in the state of Texas. The appellant had as its state agent Z. E. Bellah, at Birmingham, Ala., and one J. W Leggitte as its district agent. This district agent resided at Chatom, Washington county, and his territory comprised the counties of Clarke, Choctaw, Marengo, and Washington. Under the evidence, Leggitte was in no sense a general agent of the company; nor does the evidence tend in any way to show that he had any such apparent authority. His duties were to solicit insurance, take applications therefor, collect premiums, and deliver policies.

It appears from the evidence in the case that about the middle of January, 1928, Jerry G. Few and his wife made application in writing to the appellant company for a joint twenty-year endowment policy. While the policy applied for was to be a joint twenty-year policy, separate applications were signed. After these applications were received at the home office of the company at Galveston, the company, under date of February 23, 1928, advised its district agent Leggitte that it would be unable to issue Mattie Ethel Few, appellee, a policy at that time, but offered to issue Jerry Gaston Few, the husband, a policy on the twenty-year pay life plan, if same would be accepted. Under date of February 27, 1928, Leggitte wrote Mr. Few inclosing the letter from the home office declining to issue policy to his wife, and in this letter of transmissal Leggitte advised Mr. Few to accept the company's offer of a policy on his life as offered by the company. Mrs. Few, while testifying as a witness in her own behalf, stated that, on the receipt of this letter she, for her husband and at his request, wrote a letter to Mr Leggitte, addressed to him at Chatom, advising that her husband would take the policy, and that her husband said for him to send the policy on. Leggitte would neither affirm nor deny that he had received such a letter from Mrs. Few. Bellah, the state agent, denied that he had received the letter, and the company's agents at Galveston also denied that any such letter reached the home office.

On the 5th day of March, 1928, Leggitte wrote Bellah, state agent at Birmingham, Ala.: "I have written Mr. Few, but have not heard from him. I think it will be all right to issue the policy for Jerry Gaston Few, as I believe I can deliver same to him." Previous thereto, on February 29, 1928, the company, by J. A. Lile, cashier, at Birmingham, had written Leggitte, at Chatom, as follows: "Please refer to our letter of the 23 inst., and advise us by return mail what disposition you desire made of the above case," referring to application of Mr. and Mrs. Few, Walker Springs, Ala. On March 8, 1928, Bellah, state agent, wrote the company: "In re. Jerry Gaston Few, Walker Springs, Alabama.-Replying to your letter of February 27th, will ask that you issue a twenty payment life policy to the above."

The policy upon the life of Mr. Few was issued at the home office, at Galveston, Tex., on March 22, 1928, and mailed to Z. E. Bellah, manager of the company at Birmingham, Ala., some time between the hours of 3 and 5 p. m., March 23, 1928. On March 24th, the policy was mailed from Birmingham to Leggitte, agent of the company, at Chatom. Just when it reached Leggitte the testimony does not show, but he testified that he promptly mailed it to J. G. Few at Walker Springs, and Plaintiff's Exhibit X, which purports to be a copy of a letter from Leggitte to Jerry Gaston Few, reads:

"Chatom, Ala. March 27, 1928.

"Mr. Jerry Gaston Few, Walker Springs, Alabama.

"Dear Mr. Few: I am enclosing policy as per letter some time ago. I will be over at your place possibly next week, as I am intending to go to Grove Hill and will come by to see you. Any how I will see you in the near future. With best wishes, I am,

"Yours very truly,

"J. W. Leggitte."

This then shows that the policy never actually left physical possession of the defendant's said agent until March 27, 1928. Few died at Mobile, Ala., on March 25th. The application, which is attached to and made a part of the policy of insurance, contains this, among other provisions: "And I furthermore agree that the note, if any, above mentioned was executed solely for my convenience in arranging settlement in the event my application is approved by the home office of the company and shall be valid only in that event and that the receipt given for the same shall in no wise be construed as assumption of liability by the company until the date on which the application is finally approved at its home office, and policy issued and delivered to him, whether or not the total of the cash, if any, and amount of the note receipted for equals the entire first premium on the policy applied for, and that in the event no cash settlement or only partial cash settlement for the first premium on account of the policy applied for is shown above, it is mutually agreed that no liability by reason of this application or said policy applied for is assumed by the company, until said policy is delivered to me while I am in good health and until I have made full settlement in cash with the company on account of said first premium."

Mrs. Few, in her answer to interrogatories propounded to her by defendant, stated that she did not make any payment at the time the applications were made, and further stated, "but I do not know what my husband did." On her examination as a witness in the cause, however, she testified that her husband paid Leggitte $3.96, which happens to be the term premium on the policy actually issued. Leggitte testified that Few at the time the applications were made paid him no money, but gave him a note to cover the quarterly premium and the term premium added on the policy applied for, which was a joint twenty-year endowment policy. Witness further testified: "When I get a note I take the note on the insured and pay the premium to the company myself. The note is made payable to me. The company would not take a note, would not take mine. They never did take any of mine, I don't think. I was responsible to them, and, of course, the insured was responsible to me"; that the policy issued was a twenty-payment life, and that he never saw Mr. Few after taking the application. No new note was given for the changed policy contract, nor any payment made thereon by Mrs. Few until in May, following the death of her husband. The policy issued recited payment of the first premium thereunder. Whether the premium was the same on a joint twenty-year life as it was on a twenty-year payment life, the evidence is not clear; however, the witness Leggitte testified: "The note was for a joint life and the term on that other policy might have been a little different."

On April 5, 1928, Leggitte sent his personal check to the American National Life Insurance Company for $7.24. This check was never cashed , and the defendant company has never returned it to Leggitte or to any one else. This check was to pay the net term premium.

Few died on March 25, 1928. He first showed symptoms of final illness on March 14, 1928. Dr. R. E. Shaw, first attending physician, testified he visited and prescribed for Few on the 17th, and he last visited him on March 21, 1928. Few was then removed to Mobile, Providence Infirmary, and there died on March 25th from pneumonia, which was complicated with, or induced by, "flu." Dr. Shaw, in his certificate as one of the attending physicians, stated that during the progress of the disease (between March 17th and March 21st) the symptoms present were fever, pain inside, and bloody sputum.

It thus appears that the policy was not and could not have been delivered after its date to the said Few at a time when he was in good health, even if the delivery could be said to have been made on the day it was actually signed by the company and started on its journey. Mr. Few was then seized with a fatal malady, from which he succumbed before the policy actually reached his post office. When the application was made Few was in good health, and the state of his health, when Mrs. Few, for her husband, notified the district agent Leggitte her husband would accept the policy offered, was not shown to be bad.

If there were no other questions involved than the condition of the health of insured, defendant might have been entitled to the affirmative charge; but for other reasons, which will be stated, the defendant was not entitled to this charge. There was evidence in the case which afforded the inference, at least, that, at the time the application was made by Few for the joint twenty-year life policy, he paid the district agent, who confessedly had authority to receive the payment $3.96, which covered the term insurance on the policy, while this agent testified that Few gave him his note for the term and first quarterly premium. The evidence is not clear as to the amount of the note, but Leggitte testified that it may have been a little less than the amount afterwards paid to him in May, 1928, by Mrs. Few, which...