Carter v. Bankers Life Insurance Company
| Decision Date | 20 March 1909 |
| Docket Number | 15,467 |
| Citation | 120 N.W. 455,83 Neb. 810 |
| Parties | GERTRUDE M. CARTER, APPELLEE, v. BANKERS LIFE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Valley county: JAMES R. HANNA JUDGE. Affirmed.
AFFIRMED.
Charles O. Whedon, for appellant.
Clements Bros. and E. J. Clements, contra.
DUFFIE C. EPPERSON, GOOD and CALKINS, CC., concur.
This action was brought for damages for failure of the defendant to issue a policy of insurance on the life of plaintiff's husband. The plaintiff's amended petition alleges that on May 5, 1905, the plaintiff's husband, Harry E. Carter made a written application to the defendant for a life insurance policy in the sum of $ 1,000 for her benefit, the policy to be a twenty-payment policy; that at said time he executed to the defendant's agent his promissory note for $ 31.10, being the first year's premium, and passed a medical examination which was reduced to writing, and this, together with his application, was submitted to defendant for its consideration; that after due examination and consideration of his application and medical examination, and on May 31, 1905, the defendant informed Carter that it had accepted his application for insurance, and would issue a policy for the benefit of the plaintiff on condition that he would consent to accept a ten instead of a twenty-payment contract, and that the annual premium be increased from $ 31.10 to $ 48.10; that Carter thereupon consented to said change, and gave the defendant's agent his check for $ 17, the additional premium required; that defendant sold the note first given and cashed the check for $ 17 and applied the proceeds to its own use. It is further alleged that Carter and the plaintiff at the time of making said contract resided in Valley county; that defendant agreed to deliver its policy in said county; and that the contract was made and to be performed therein; that Carter died July 23, 1905, and defendant failed and refused to deliver to Carter or to the plaintiff said insurance policy to the plaintiff's damage in the sum of $ 1,000.
A special appearance was made by the defendant, who moved to quash the summons, which motion was overruled.
The answer to the amended petition contains two grounds of defense: First, that the court had not legally acquired jurisdiction over the defendant company, for the reason that at no time did it maintain in Valley county an office or place of business, nor have therein servants, employees or agents who were engaged in carrying out the business of life insurance for it in said county; that the summons was directed to the sheriff of Lancaster county, Nebraska, and was there served upon the defendant; that no summons in the case was issued to the sheriff of Valley county, and no summons served upon defendant by the sheriff of Valley county; that the court did not and could not obtain jurisdiction of the defendant by virtue of a summons issued in Valley county to the sheriff of Lancaster county. The second defense admits that the defendant is a domestic life insurance company, and that S. J. and M. G. Medlin were its agents, and admits, also, that Harry E. Carter was plaintiff's husband and made application to the defendant for a policy of insurance for $ 1,000, payable on his death to the plaintiff, that he passed a medical examination and submitted the same with his application to the defendant, and further admits that Carter about June 1 offered to accept another form of policy and pay defendant's agent $ 17 additional premium therefor, and admits that it never issued or delivered to Carter or to the plaintiff any policy, and that Carter died July 23, 1905. It is further alleged that at the time of making his application, and when he paid the $ 17 additional premium, Carter was not in good health, which fact he concealed from the defendant, that his application was not accepted, but was refused July 13, 1905, and that on August 16, 1905, defendant tendered to plaintiff $ 48, the amount paid as premium, which the plaintiff refused to accept.
A demurrer to the first defense set out in the answer was sustained by the court, and an exception saved by the defendant. A trial resulted in a verdict and judgment for the plaintiff, and defendant has appealed.
The undisputed facts are that Carter applied for insurance in the sum of $ 1,000 for the benefit of his wife, and that his written application and written medical examination were submitted to the proper officers of the defendant company at Lincoln, Nebraska; that in the latter part of May or the first of June an agent of the defendant company informed Carter that his application, which was for a twenty-payment policy, would not be accepted by the company, but, if he would consent to take a ten-payment policy and pay an additional annual premium of $ 17 a year, then a policy for $ 1,000 would be issued to him; that Carter accepted this proposition and paid the agent, in addition to his note of $ 31.10 which he executed for the company when his application was made, his check for $ 17, the required additional premium for a ten-payment policy; that Carter died July 23, 1905, and the defendant has refused to issue any policy. If defendant's agent had authority to close a contract with Carter for insurance on his life and to agree that a ten-payment policy would be issued, then it is quite apparent that an oral contract of insurance was completed when Carter accepted the proposed change and gave his check for the additional premium. The evidence relating to the authority of the agent is amply sufficient to support the finding of the jury that the agent was authorized to make the contract.
Dr. Mitchell, the medical director of the company, testified that Carter's application was turned over to him about May 9, 1905. Either on the 10th or 19th of May the doctor filled out the blank indorsed on the back of said application approving the same. This indorsement of approval and the date thereof are partially erased, so that it is hard to say whether the date of approval is the 10th or 19th of May, and the doctor himself cannot tell which is the proper date. After such approval the president of the company informed S. J. Medlin, the agent who took Carter's application, that the application had been rejected for a twenty-payment policy, but recommended for a ten-payment policy, and asked him if he could secure the change. Medlin told the president that his brother, M. C. Medlin, also an agent of the company, was going to North Loup, and that he would consult with and have him see Carter. This he did, after which M. G. Medlin saw and talked with the secretary of the company, and the secretary told M. G. Medlin that Carter's application for a twenty-payment policy had been rejected, but had been passed for a ten-payment policy, and the secretary instructed Medlin to take the matter up with Carter and induce him to accept of the proposed change. It was after this, and about the 31st of May, that Medlin saw Carter, who at first refused, but afterwards consented to take a ten-payment policy, which it was agreed should be delivered to him at North Loup, in Valley county. Medlin further testified that, after securing the change, he informed Mr. Harley, the secretary, of what he had done. Mr. Harley denies these conversations, but the question was one for the jury, who accepted the testimony of Mr. Medlin.
The defendant claims that it rejected Carter's application July 12, 1905, and notified him by letter on July 13. The proof offered to show that Carter was notified of the rejection of his application was a letterpress copy-book containing a copy of a letter to Carter of that date. The only witness who testified as to the date of this letter was Mr. Harley, the secretary. The copy-book contained no letters written by Harley, nor does he claim to have written the letter in question. He had no personal knowledge that any such letter was written. The letter was as follows Who wrote the letter or whom the initials stood for Mr. Harley could not tell, and no further evidence regarding it was offered. It...
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