Fidelity Mut. Life Ass'n v. Winn

• Decision Date: 14 February 1896
• Citation: 33 S.W. 1045,96 Tenn. 224
• Parties: FIDELITY MUT. LIFE ASS'N v. WINN.
• Court: Tennessee Supreme Court

33 S.W. 1045

96 Tenn. 224

FIDELITY MUT. LIFE ASS'N v. WINN.

Supreme Court of Tennessee.

February 14, 1896

Error to circuit court, Davidson county; Claude Waller, Judge.

Action by Mary Polk Winn against the Fidelity Mutual Life Association. There was a judgment for plaintiff, and defendant brings error. Reversed.

Champion Head & Brown, for plaintiff in error.

W. D Covington, A. S. Colyar, and Jos. G. Branch, for defendant in error.

BEARD J.

The plaintiff in error, a mutual life insurance company, located in Philadelphia, on the 28th of December, 1891, issued to Dr Charles W. Winn a policy on his life for $5,000, payable at his death to his wife, the defendant in error. In January 1893, the assured died. The company, treating this as a lapsed or forfeited policy, declined to make payment on it to the beneficiary, and thereupon this suit was brought. The trial resulted in a verdict against the defendant below. From the judgment on this verdict an appeal has been prayed to this court. A number of errors are assigned, only one of which will be noticed in this opinion. The others will be disposed of orally.

It is a conceded fact that Dr. Winn never paid, in actual cash, any part of the quarterly premiums due on this policy, and it is true that, by its terms, this nonpayment worked, ipso facto a forfeiture of all rights thereunder. On the trial of the cause, however, it was contended by the defendant in error that, by an agreement made by Dr. Winn with an agent of the company at the time the policy was taken out, and subsequently ratified by another agent authorized to speak for and bind the company, forfeiture was saved, notwithstanding this nonpayment, and that the assured, relying on this agreement, regarded the policy as in operation at the time of his death. Plaintiff in error insisted, on the contrary, that no such agreement had been made, or, if made, that it was not binding on the company, and that this was well understood by the assured, who, with full knowledge of the facts, permitted his policy to become lapsed or forfeited for nonpayment of premiums, and thereafter did not set up claim that it was in force. Plaintiff in error offered testimony of conversations had by witnesses with Dr. Winn, after the issuance of the policy, and subsequent to the date of the forfeiture as insisted upon by the company, tending to sustain this contention, which was, on objection of the defendant in error, excluded from the jury. This action of the court is assigned for error. In an ordinary life policy, where the beneficiary is some other than the assured, and no control over the policy is reserved to him by its terms, then the law is that the interest of the beneficiary vests at the time the contract of insurance is complete, and cannot be affected by subsequent acts or declarations of the assured. It is therefore held that testimony tending to show such acts or declarations is incompetent in any litigation between the beneficiary and the company. Insurance Co. v. Booker, 9 Heisk. 606; Insurance Co. v. Morris, 3 Lea, 102; Gosling v. Caldwell, 1 Lea, 454. But the policy sued on in this action is not one that, upon its issuance, passed beyond the control of the assured. On the contrary, the first of the conditions, which are set out on the back of the policy, and by its terms made part thereof, is as follows: "The member or insured may, upon the approval of the...