Dupriest v. American Central Life Insurance Co.

• Decision Date: 09 January 1911
• Citation: 133 S.W. 826,97 Ark. 229
• Parties: DUPRIEST v. AMERICAN CENTRAL LIFE INSURANCE COMPANY
• Court: Arkansas Supreme Court

133 S.W. 826

97 Ark. 229

DUPRIEST v. AMERICAN CENTRAL LIFE INSURANCE COMPANY

Supreme Court of Arkansas

January 9, 1911

Appeal from White Circuit Court; Hance N. Hutton, Judge; reversed.

STATEMENT BY THE COURT.

This is a suit on a life insurance policy. On the 28th day of November, 1908, J. B. Dupriest made application to the American Central Life Insurance Company through Louis Lorch its local agent at Searcy, Arkansas, for a policy of insurance upon his life for $ 2,000, and his wife A. H Dupriest was named as beneficiary. He was examined by Dr Hassell, the local medical examiner of the company at Searcy and his application was forwarded to the company. On the same day he executed to Louis Lorch his note for the first premium, payable 30 days after date. Lorch, after retaining the amount of his commissions for securing the application drew a check in favor of the company for the amount of the premium due it. The check was introduced in evidence, and shows it was paid. The policy was issued by the company, and sent to Lorch to be delivered to Dupriest. Dupriest lived in the country about 28 miles from Searcy, and had instructed Lorch to deliver the policy to the medical examiner of the company for him. Lorch carried the policy to the examiner, who refused to receive it. Lorch then put it in an envelope with postage prepaid, addressed to J. B. Dupriest, Vilonia, Arkansas, and placed the letter in the postoffice. The letter containing the policy was returned to Lorch, and he, not knowing the exact postoffice address of Dupriest, decided to keep it until the latter came to Searcy when he would give it to him.

In the policy, the postoffice address of Dupriest was named as Mt. Vernon. When Lorch mailed him the policy, he believed his address to be Vilonia. It was afterwards ascertained that Dupriest received his mail at Romance. It appears that Mt. Vernon, Romance and Vilonia were all country postoffices in the neighborhood where Dupriest resided.

During the latter part of December, 1908, the Insurance Company received information that Dupriest was not in good health when he applied for the insurance, and it directed Lorch to return the policy for cancellation under the following provision contained in it:

"The payment of the first annual premium herein is a condition precedent to the taking effect hereof, and this policy shall not become binding upon the company until said premium is actually paid during the lifetime and good health of the insured; and the delivery of this policy without such payment shall not be a waiver of such precedent condition."

Lorch received this instruction after the policy had been returned to him from the Vilonia postoffice, and before he again saw Dupriest. He returned the policy to the company in compliance with its directions, and it was cancelled by the company.

The defendant company also adduced evidence tending to show that Dr. Hassell received information after the issuance of the policy that Dupriest did not desire him to receive the policy for him. That he, Dupriest, had found out since his examination that he was not in good health at the time he was examined, and that for that reason he was not entitled to the policy. Neither the Insurance Company nor its agent, Lorch, returned the amount of the premium to Dupriest.

Dupriest died on June 19, 1909, of a disease from which, according to the testimony of the defendant company, he was suffering at the time he applied for the policy of insurance. It might have been inferred from the evidence adduced in behalf of the plaintiff that he was in good health when the policy was applied for, and did not direct that the policy should not be received for him on account of not being entitled to it. Such other facts as are deemed necessary to proper determination of the issues raised by the appeal will be stated or referred to in the opinion.

At the conclusion of the testimony the court directed a verdict for the defendant. From the judgment rendered A. H. Dupriest, the beneficiary in the policy and the plaintiff in the action, has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

J. N. Rachels and Charles N. Robinson, for appellant.

S. Brundidge, Jr., and Harry Neelly, for appellee.

OPINION

HART, J., (after stating the facts).

Did the court err in directing a verdict for the defendant? In deciding this question it is necessary to determine whether...