Cure v. The Midland Life Insurance Company

• Decision Date: 11 June 1921
• Docket Number: 23,030
• Citation: 198 P. 940,109 Kan. 259
• Parties: NORA CURE, Appellee, v. THE MIDLAND LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

198 P. 940

109 Kan. 259

NORA CURE, Appellee, v. THE MIDLAND LIFE INSURANCE COMPANY, Appellant

No. 23,030

Supreme Court of Kansas

June 11, 1921

Decided January, 1921.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIFE INSURANCE--Default in Payment of First Premium--No Policy Delivered--Death of Assured--No Insurance in Force--No Waiver. In an insurance contract it was stipulated that the policy should not be in force until it was delivered and the first premium paid while the applicant was alive and in good health. After payment of part of the annual premium and before the delivery of the policy, the applicant died. After knowledge of his death his former employer under an arrangement for the payment of premiums due to the insurance company from the wages of insured employees, sent a check to the company which covered installments due from insured employees, and included a payment on the contract of the deceased applicant. As soon as the agent discovered that the check covered that payment the money was returned to the employer. Upon a claim that the conduct of the defendant was a waiver of the conditions precedent to a consummated contract, it is held that the evidence did not establish a waiver.

2. SAME--What Constitutes a Waiver of a Contract Right. To constitute a waiver of a contract right, there must be a clear, unequivocal and decisive act of the party showing an intention to relinquish the right, or acts amounting to an estoppel on his part.

W. P Hackney, L. D. Moore, both of Winfield, Sam B. Sebree, and Frank P. Sebree, both of Kansas City, Mo., for the appellant.

S. A. Smith, S. C. Bloss, and W. L. Mullendore, all of Winfield, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action brought by Nora Cure to recover from the Midland Life Insurance Company $ 1,000 upon an insurance contract made with her minor son, Hubert L. Cure. Judgment was in her favor, and defendant appeals.

The contract for insurance was arranged between Cure and G. T. Brewer, the agent of the insurance company, on July 29, 1918, and in the application it was stipulated:

"No policy issued in consequence of this application shall go into effect until it shall be actually delivered to me, and the first premium thereon shall be actually paid to the company, all during my life and good health."

After the application had been approved and registered with the insurance department, but before it was delivered, Cure was accidentally killed. There is no discord between the parties as to the clause of the contract providing that the contract was not binding until the delivery of the policy nor as to the fact that no delivery had been made. It is conceded that under the contract, delivery of the policy was a prerequisite to the consummation of the contract; but it is contended that this provision was waived by the action of the agents and officers of the company. When the application was made Cure gave his note for $ 29.84 as a payment towards the first annual premium and it was arranged with his employer the Empire Gas and Fuel Company, that $ 10 of the amount should be taken out of his wages on August 10, $ 10 more on August 25, and the balance of $ 9.84 on September 10. The first payment was taken from his earnings on August 10 and paid to Brewer, the agent of the insurance company. The day following the accident Brewer notified the insurance company of the death of Cure and because the policy had not been delivered and was not in force, he transmitted the $ 10 which had been paid to him, to the company, as he said "to return to his folks." The vice president of the company replied that there was no liability on the application for the reason that the policy had not been delivered, and stated that delivery had been prevented by the failure of the mother of Cure to give her consent to the taking out of insurance by her minor son, and that the requests for her consent had been ignored by her. On August 25, the next pay day, which was ten days after Cure's...