Etenburn v. Metropolitan Life Ins. Co.

• Citation: 246 P. 383,118 Okla. 55,1926 OK 240
• Decision Date: 16 March 1926
• Docket Number: 16325.
• Parties: ETENBURN v. METROPOLITAN LIFE INS. CO.
• Court: Oklahoma Supreme Court

246 P. 383

118 Okla. 55, 1926 OK 240

ETENBURN v. METROPOLITAN LIFE INS. CO.

No. 16325.

Supreme Court of Oklahoma

March 16, 1926

Rehearing Denied May 18, 1926.

Syllabus by the Court.

To constitute a valid and binding contract of life insurance there must be a meeting of the minds of the parties as to all of the material terms and provisions of the contract including the amount and manner of the payment of the premium.

Where the policy or contract of insurance provides that it is not to become effective until the first premium is paid to and accepted by the company during the lifetime of the insured the payment of the first premium is a condition precedent and, where the policy provides that only the proper officers at the home office of the company shall have power on behalf of the company to modify the contract of insurance or to bind the company by making any promises respecting any benefits under a policy issued, the soliciting agent of the company is without authority to waive the payment of the first premium.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Oklahoma County; William H. Zwick, Judge.

Action by E. E. Etenburn, administrator of Sarah Etenburn, deceased, against the Metropolitan Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. A. Smith, of Oklahoma City, for plaintiff in error.

Embry, Johnson & Tolbert, of Oklahoma City, for defendant in error.

JARMAN C.

This was an action by E. E. Etenburn, administrator of the estate of Sarah Etenburn, deceased, against the Metropolitan Life Insurance Company, a corporation, to recover on a life insurance policy in the sum of $2,000, issued by the defendant to the decedent. Upon the conclusion of the evidence of the plaintiff, the court sustained a demurrer thereto and rendered judgment in favor of the defendant, from which the plaintiff has appealed.

The evidence on the part of the plaintiff discloses the following state of facts: The insured, Mrs. Sarah Etenburn, resided at Fayetteville, Ark. W. A. Booker was soliciting agent of the defendant. The insured carried two industrial policies with the defendant, and Booker called at her home each week to collect the assessments or premiums thereon. During these trips, he suggested to Mrs. Etenburn that she take additional life insurance, and she expressed her doubts as to being financially able to pay for additional insurance, but finally signed an application on December 13, 1922, for a policy in the amount of $2,000, and, upon receipt of the application at its home office, the defendant, by and through its proper officers, issued said policy and forwarded the same to its soliciting agent, W. A. Booker. Mrs. Etenburn had not made up her mind fully as to the kind of insurance policy she desired, and this was the condition at the time Booker left the policy with her. It is clear from the testimony of Helen Etenburn, daughter of the insured, who lived with her mother at the time of this transaction, that the policy for $2,000 was never intended to be delivered by Booker, and Mrs. Etenburn did not intend to accept the policy as an executed contract between the parties. The record discloses that Mrs. Etenburn had become interested in the proposition of taking additional insurance; and the execution of the application and the leaving with her of the policy were only steps taken for the purpose of aiding the negotiations for insurance and to enable Mrs. Etenburn to become fully acquainted with the terms and provisions of the proposed policy, in order that she might be in a position to determine the kind of policy she desired. With reference to the delivery of the policy and the circumstances under which the same was left with the insured, Helen Etenburn gave the following testimony:

"Q. What was it you said about him giving her the policy to look it over? A. He delivered it to her and told her that if there was anything in it-let me see, what was it he said? He said, 'I will let you keep this for a few days,' and my mother asked him how it was to be paid, and he told her by the year, and he told her how it was that it was to be paid, and she said, 'I would rather have it paid quarterly,' and he told her that he would leave it there a few days until she decided how she wanted to pay it. I am sure that is how it was."

It is clear from the foregoing testimony that the policy was left with the insured so she could consider it for a few days and make up her mind whether the same suited her, to enable her to determine the exact nature and kind of policy she desired. The evidence...