Edwards v. Business Men's Accident Association of America
| Decision Date | 27 March 1920 |
| Citation | 221 S.W. 422,205 Mo.App. 102 |
| Parties | ROSE EDWARDS, Respondent v. BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA, appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jasper County.--Hon. J. D. Perkins Judge.
AFFIRMED.
Judgment affirmed.
J. W Halliburton & Son and Solon T. Gilmore for appellant.
H. S Miller for respondent.
Plaintiff's husband lost his life by reason of an automobile accident in which the automobile in which he was riding overturned inflicting injuries from which he died August 1, 1918. This suit is on an accident policy on his life payable to plaintiff and the petition alleges in conventional form that the policy was in force at the time of his death. The defendant denies the validity of the policy sued on in that such policy was not delivered to and accepted by the insured so as to make it a complete and binding contract before the said insured received the injury resulting in his death a few days later. The attorneys in the case have with commendable candor narrowed the case to this one issue and have left the facts practically conceded. These facts are that the insured was about to leave his home at Joplin, Missouri, for a trip to the oil fields in Oklahoma and decided to take an accident policy in defendant company. The defendant's agent met the insured at the latter's office in Joplin on July 26, 1918, and the insured then and there signed the application for the accident policy for $ 5,000, in case of his accidental death. This application provides that the policy issued thereon "is to take effect when received and accepted by the applicant." It also contains this question and answer: The defendant's home office is and was in Kansas City and the application etc., were forwarded there to be accepted or rejected by defendant. The defendant received the application on July 27 or 28, accepted same and issued the policy sued on dated July 29 and mailed same on the evening of July 30 to the insured at his office address in Joplin. The policy reached the insured's office in due course of mail at about eight o'clock in the morning of July 31st and was opened by the insured's office clerk, he having then left the city. The insured had been absent from Joplin about two or three days and met with the accident causing his death about seven o'clock in the morning of July 31st--about an hour before the office clerk received the policy in the morning mail. This clerk however did not learn of insured's accident and injury till an hour or more still later.
It was shown that when the insured and defendant's agent met at the insured's office on July 26, when and where the application was signed, the agent gave insured a sample policy such as defendant issued and which is conceded to be the same as the one later issued on such application except filling out the necessary blanks as to the amount, name of insured and beneficiary etc. The insured examined the sample policy before signing the application. At the trial the plaintiff was allowed to prove by the insured's office secretary, who was present, that, in the presence of the defendant's agent taking the application, the insured examined the sample policy, signed the application and directed the said secretary that when the policy came to pay the premium on it; that he said he was going away and probably would be away when the policy arrived and for her to pay the premium on the policy to defendant's said agent; for her to pay a year's premium and told such agent to call for it; that he gave no direction to her as to examining or approving the policy, but merely directed her to pay the premium; that he said he was taking the policy the defendant's agent was selling; that he gave her no instructions as to inspecting the policy but merely to pay for it. This office clerk further testified that she paid the premium on this policy to defendant's local agent on August 6, 1918, after the insured's death; that such agent then called for it and that was the first time she had seen him since the application was signed. The defendant afterwards tendered back this premium and kept the tender good at the trial. On cross examination the witness testified that she did not know at what time the policy was delivered by mail at the office; that it was in the mail in the morning when she got there and that she stayed in the office in the evening until mail deliveries were made; that usually the morning delivery was made when she got to the office; that she could not say whether she had ever been there when it was delivered or not; that after Mr. Edwards signed the application he put the specimen policy in the drawer of her desk; that Mr. Hatch, the local agent, gave Mr. Edwards a specimen policy . . . That she did not examine the specimen policy when the policy itself came; that she did not know whether Mr. Hatch told Mr. Edwards that when the policy came he could check it with the specimen policy; that Mr. Edwards did not tell her to see if the policy was like the specimen; that no other reason was ever suggested to her; that when the policy came from the company, she expected to pay for it regardless of how it was made out. Q. It made no difference whether it was written to Charles W. Edwards or somebody else? A. Mr. Edwards instructed me to pay a years premium on that policy. The witness further testified that she opened the envelope probably at 8:20 or 8:25 a. m. and took the policy out to see if it had been properly signed by the agent; that she did not look to see whether it was written to Charles W. Edwards or if Mrs. Edwards was named as beneficiary; that she simply looked to see if it was properly signed. She didn't look to see if it was for $ 5,000 or $ 500. Q. After you saw it was signed, did you conclude then you would pay for it when they came and asked for it? A. I had already been instructed to pay for it. Q. If it hadn't been signed, would you have paid for it? objection made and sustained.
On these facts the question for decision is whether or not the policy sued on was a completed contract at the time the insured received his fatal injury. The defendant in its brief tersely states the proposition thus: "Edwards, the insured, in his written application consented that this policy should not be effected until it reached him; the defendant issued it upon that understanding; upon the question whether the policy became effective at that time or upon the day before (when the policy was issued and delivered to the United States mail) depends the answer to the question whether defendant owes plaintiff $ 5,000 or nothing." This statement of the issue to be decided tacitly concedes, and rightly so, that the payment of the premium, the most important part of the contract from defendant's standpoint, was not a condition precedent to the taking effect of the policy. The application, in the clause heretofore quoted, proceeds on the theory of a cash payment of the premium in advance, in that it requires a prompt acceptance of the policy "in order that the amount paid herewith may be returned." The evidence shows that the taking effect of the policy was not to await payment of the premium but that same was to be paid when called for by the local agent; and it was agreed at the trial that on issuing the policy the defendant charged to the local agent the portion of the premium due it after deducting his commission. This provision of the insurance contract was solely for the defendant's advantage and could be and was waived. [Malone v. State Life Ins. Co., 202 Mo.App. 499, 213 S.W. 877.] "Such a waiver is usually considered to be established by a delivery of the policy under an express or implied agreement for credit, and that credit was given is usually implied from a delivery of the policy without requiring payment." [14 R. C. L., sec. 130, p. 958; Prudential Ins. Co. v. Sullivan, 27 Ind.App. 30, 59 N.E. 873.]
It also seems to be conceded that delivery of the policy to the insured in person is not required by this contract and if so no examination of the written policy or express approval of same was required to make it effective. There was nothing requiring insured to in any way notify defendant of his acceptance. He promised in his application that if not satisfactory he would return it within three days; that is, give notice of its rejection. The defendant claims no more than that the policy was not to be effective till it "reached the insured" which evidently means delivery at his office by the United States mail. The fact that the insured was absent from the city and would be for more than the three day limit for rejecting it and had instructed no one to examine and approve the policy for him was not material to defendant. It was only concerned with its rejection. As we understand defendant it concedes that if the insured had received accidental injury the next day or at any time after the policy reached the insured, that is, was delivered by the postman at his office, that being the address given for the purpose of mailing the policy, then defendant would be liable. Suppose neither the insured nor anyone for him had been at the office during the three days given for examination and rejection of the policy, or for any cause the envelope covering such policy had not been broken, and on the fourth or fifth day the injury had occurred; we take it that defendant would concede liability. Certainly defendant could not defend on...
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