Evans v. The Central Life Insurance Company

• Decision Date: 06 July 1912
• Docket Number: 17,729
• Citation: 125 P. 86,87 Kan. 641
• Parties: E. F. EVANS, Appellee, v. THE CENTRAL LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

125 P. 86

87 Kan. 641

E. F. EVANS, Appellee, v. THE CENTRAL LIFE INSURANCE COMPANY, Appellant

No. 17,729

Supreme Court of Kansas

July 6, 1912

Decided July, 1912.

Appeal from Harvey district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE -- Application -- Misrepresentations of Soliciting Agent. One who signs an application for life insurance without reading it, upon the assurance of the soliciting agent that it conform to representations orally made, and that such signing is customary but not necessary may refuse to accept policy tendered him, on the ground that it does not meet such representations, notwithstanding the application contains a provision that no statement made by the solicitor would affect the rights of the company unless embodied in the written application.

2. INSURANCE -- Premium Note--Recovery. Where such applicant has been compelled to pay to an innocent holder a negotiable premium note given at the time of such application, he may recover from the company the amount so paid.

3. ATTORNEY'S FEE--Not Recoverable. In the absence of a statute allowing it, a successful plaintiff is not entitled to recover his attorney's fee, even in an action for damages on account of the defendant's fraud or malicious misconduct.

4. ATTORNEY'S FEE -- Same. A judgment purporting to be for the recovery of the plaintiff's attorney's fee can not be upheld on the theory that it was allowed as punitive damages, where the record shows that no issue as to the allowance of punitive damages was presented or determined.

J. C. Nicholson, of Newton, A. M. Keene, and E. C. Gates, both of Fort Scott, for the appellant.

Ezra Branine, and Harry W. Hart, both of Newton, for the appellee.

OPINION

MASON, J.:

E. F. Evans was induced by soliciting agents of the Central Life Insurance Company to apply for insurance upon his life. He gave a negotiable note for $ 176 for the first premium, and signed a written application, which was forwarded to the company's main office. A policy was sent to him, but he refused to accept it on the ground that it did not conform to oral representations that had been made to him by the agents concerning the cost and the benefits of the policy he was to receive. The representations included a statement of the amount by which the premium would be reduced each year by a distribution of surplus; the policy contained no guaranty of this amount. He paid $ 100 in satisfaction of the note, which had been negotiated, and sued the company for the amount. He recovered judgment and the defendant appeals.

The principal contention of the defendant is that, even assuming the correctness of the plaintiff's version of the transaction, no recovery should have been allowed, because the agents had no authority to make the representations referred to, and the plaintiff had notice of such want of authority. The basis of this contention is a provision of the application (which did not embody the representations) reading as follows:

"No statements, promises or information made or given by, or to the person soliciting or taking this application for a policy, or by or to any person, shall be binding on the company or in any manner affect its rights, unless such statements, promises or information be reduced to writing in this application and presented to the officers of the Company at the Executive Office."

According to the plaintiff's testimony, at his first meeting with the agents he agreed orally to take a policy, and gave them his note for the first premium. Later one of them returned and asked him to sign the written application, saying, however, that while this was customary it did not make any particular difference whether he signed it or not. He answered that he was too busy to talk about it at that time. The agent then said he wished to send off the application at once, and the plaintiff signed without reading it, saying that he would take it for granted that what the agent said was true. The application gave no specific information as to the terms of the insurance except that it was to be on the twenty payment life plan, for $ 5000 (in two policies), the premium to be $ 176.50, payable annually, the apportionment of surplus or profits to the policyholder to be regulated by such principle as the company should adopt.

Under the plaintiff's evidence he was not bound to accept the policy tendered him. Whatever may have been the restrictions upon the authority of the agents, they represented the company in the matter of soliciting and procuring the application, and the company was chargeable with all that they knew as to how it was obtained. (Pfiester v. Insurance Co., 85 Kan. 97, 116 P. 245.) The company could not repudiate the act of the agents as unauthorized and retain its fruits. (Wagon Co. v. Wilson, 79 Kan. 633, 101 P. 4.) This action is not one to compel the insurance company to issue a policy of the kind described by the agents, but in effect one to relieve the plaintiff from the obligation to accept the policy tendered him on the ground that its character had been misrepresented--that it was not. the kind of policy he had agreed to take. In Blanks v. Moore, 139 Ala. 624, 36 So. 783, a similar provision in the written application was held to preclude the applicant from rejecting the policy on the ground that it did not conform to the oral representations of the soliciting agent. No claim was there made, however, that the application was signed without a full knowledge and understanding of its contents, and the court held the rule to apply which forbids the variation of a written contract by parol evidence. Assuming that in the present case the application was sufficiently definite to constitute a complete offer to accept and pay for a particular kind of policy, the evidence warranted a finding that the plaintiff, through justifiable reliance upon the assurances of the company's agents, was ignorant of its contents. In that situation the controlling principles are those applied to a similar state of facts in the opinions from which the following extracts are made:

"It is contended that the fraud of Mouser [the agent], if sufficiently alleged, does yet not attach to the defendant [the insurance company]; this is asserted on the strength of the provision of the application that statements and promises of the solicitor shall not affect the rights of the company unless reduced to writing and presented in the application. We do not understand that this provision operates to confer upon the company the right to retain money received in consequence of fraud...