Childers v. N.Y. Life Ins. Co.

• Decision Date: 22 December 1925
• Docket Number: Case Number: 16053
• Citation: 1925 OK 1017,117 Okla. 7,245 P. 59
• Parties: CHILDERS, Admin, v. NEW YORK LIFE INS. CO.
• Court: Oklahoma Supreme Court

1925 OK 1017

245 P. 59

117 Okla. 7

CHILDERS, Admin, v. NEW YORK LIFE INS. CO.

Case Number: 16053

Supreme Court of Oklahoma

Decided: December 22, 1925

Syllabus

¶0 1. Insurance--Action for Damages for Delay in Delivering Life Policy--Provision in Receipt for Advance Premium Inapplicable. A provision contained in a receipt issued to an applicant for life insurance by the soliciting agent, on payment of premium in advance, providing that in the event the insurance company failed to issue a policy within 60 days the applicant will be entitled to a return of the premium paid on demand, and tender of receipt, and also providing for the disposition of, and the return of the premium, or residue thereof in the event the policy is issued and offered to the applicant within 60 days and refused, has no application or bearing on the contract for insurance in a case where neither of the contingencies provided for arose.

2. Pleading -- Judgment on Pleadings -- When Erroneous. It is reversible error for the court to sustain motion for judgment on the pleadings when an issue of fact is joined by the pleadings, upon which a valid judgment might be based.

A. J. Carlton, R. R. Hendon, Jr., and Charles E. Wells, for plaintiff in error.

Wilson, Tomerlin & Threlkeld, and Abernathy & Howell, for defendant in error.

JONES, C.

¶1 This action was instituted in the district court of Pottawattomie county, Okla., by the appellant, as plaintiff, against appellee, as defendant, to recover $ 2,000, alleged damages by reason of the failure and neglect of defendant, New York Life Insurance Company, to deliver within a reasonable time a certain life insurance policy. Motion for judgment on the pleadings was interposed by defendant, which was by the court sustained upon the theory that the defendant, insurance company, had, under the terms of the application for insurance, 60 days in which to act in the matter, and plaintiff's petition shows that the policy was issued within that period.

¶2 The facts, as disclosed by the record, show that the deceased, Fred Ira Childers, made application through the local agent of the defendant company for insurance on February 24, 1923, and submitted to medical examination on February 26th: that the application and medical examination reached the office of the defendant company in New York City on March 12th, and that the policy was issued March 13, 1923, and reached the local agent at Norman, Okla., on March 19, 1923. The applicant was accidentally killed March 16th, and plaintiff alleges in her petition that the company was guilty of negligence and did not issue and deliver the policy within a reasonable time.

¶3 The only question involved in this appeal is the action of the court in sustaining the motion for judgment on the pleadings, and dismissing with prejudice plaintiff's cause of action. The provision of the contract of insurance upon which the judgment of the court was based and upon which the appellee relies, is found...