Baumann v. Metro. Life Ins. Co.

• Decision Date: 06 December 1910
• Citation: 144 Wis. 206,128 N.W. 864
• Parties: BAUMANN v. METROPOLITAN LIFE INS. CO.
• Court: Wisconsin Supreme Court

144 Wis. 206

128 N.W. 864

BAUMANN

v.METROPOLITAN LIFE INS. CO.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Francis M. Baumann against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Timlin, J., dissenting.

Action upon a life insurance policy which contained the following conditions: “Premiums are payable at the home office in the city of New York, but at the pleasure of the company suitable persons may be authorized to receive such payments at other places, but only on the production of the company's receipt signed by the secretary and counter-signed by the person receiving the payments.”“The contract between the parties hereto is completely set forth in this policy and the application therefor taken together and none of its terms can be varied or modified nor any forfeiture waived or premiums in arrears received except by agreement in writing signed by either the president, vice president, secretary or actuary, whose authority for this purpose will be delegated. No other person has or will be given authority.”

Other facts are stated in the opinion. The jury returned a general verdict for plaintiff, and from a judgment entered thereon the defendant appealed.Bloodgood, Kemper & Bloodgood (Jackson B. Kemper, of counsel), for appellant.

Fish & Storms, for respondent.

VINJE, J.

The only error relied upon is that there were no facts proven to sustain a judgment in favor of plaintiff.

There is evidence to sustain a finding of these facts: The policy was issued October 13, 1904, on the life of plaintiff's husband, and the first semiannual premium was paid. The second semiannual premium became due April 13, 1905. A short time prior thereto the plaintiff went to the office of the company and offered to pay the premium, saying that she had already paid it to a man she supposed to be the company's agent, but had not received a receipt, and that she was ready and willing to pay it again. The office she went to was that of the district superintendent of the company, located in the Wolff Building, in Racine, and had the name “Metropolitan Life Insurance Company” on the door. This office was occupied by the district superintendent, Mr. John B. Comer, and the assistant superintendent. They had authority to receive, and receipt for, premiums. Plaintiff was unable to identify the man with whom she talked. She was told not pay the premium then; that they would look the matter up and notify her. About the time the premium became due she went to the same office again, and told the man that she would like to pay the premium over again, for the agent had taken her money and had not given her a receipt for it. He thereupon told her he was not allowed to take it, but would notify the company and let her know about it. A week or so later she spoke to other agents of the company at her house, Fritz and Redfield. The latter came every month to collect premiums on an industrial policy she held in the same company. He told her he could not receive the premium, but would look it up and attend to it. She spoke to him right along about the matter and he gave her the same answer, and at last said he could not take the money because he thought the policy had lapsed. On May 22, 1905, the policy was canceled on the books of the...