Francis v. Mutual Life Ins. Co. of New York

• Decision Date: 11 January 1910
• Parties: FRANCIS v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Oregon Supreme Court

106 P. 323

55 Or. 280

FRANCIS v. MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of Oregon

January 11, 1910

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by Mary C. Francis against the Mutual Life Insurance Company of New York. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

This is an action brought by Mary C. Francis against the defendant to recover upon an alleged contract of insurance. The complaint alleges: That on June 27, 1906, the defendant, in consideration of the annual payment to it, by one Richard W Francis, of the sum of $131.35, made its policy of insurance in writing, by which it insured the life of said Francis in the sum of $5,000. That said Francis, on the 27th day of June, 1906, paid the first annual premium on said life insurance policy, by giving to the duly authorized agent of said company his promissory note for the sum of $131.35, due in six months from said 27th day of June. That defendant accepted said note as and for the payment of said first annual premium. That it was then and there agreed, between said Francis and defendant, that said insurance should be binding and in full force and effect on the defendant from the time of the reception of said premium note, and upon his passing a satisfactory medical examination, and the said defendant then and there, in consideration of the premises agreed to execute and deliver to said Richard W. Francis, in a reasonable time, an insurance policy in the usual form of policies issued by said company. That said Francis was duly examined by a medical examiner appointed by defendant, and passed such examination, and was accepted as a risk by said defendant, and defendant thereupon issued an insurance policy in the city of New York and forwarded the same to the office of the defendant in the city of Seattle, state of Washington to be delivered to said Richard W. Francis. That before said Francis had received said policy he died, on the 26th day of July, 1906, and said policy was thereupon recalled by defendant from its office in Seattle, Wash., and is now in the possession of defendant. That plaintiff is the sole beneficiary under said policy.

Defendant in its answer, denied the making of the policy of insurance or the payment by note or otherwise of the first annual premium; denied the alleged agreement for temporary insurance pending the issuance of the policy, or that Francis was ever accepted as a risk by defendant; denied that it ever issued or forwarded to Seattle any policy on the life of said Francis, except as further stated in the answer, or that there ever was any insurance in force upon the life of Francis. In a further answer, defendant alleged: That, at the date set forth in the complaint, said Francis made a written application, through a soliciting agent of defendant, for a life insurance policy; that the method of securing said insurance was well known to Francis, which method is set forth in detail in the answer. It is further set forth that the soliciting agent had no authority to waive any of the requirements of defendant in regard to contracts of insurance, and recites certain false statements alleged to have been made by Francis in regard to his habits respecting the use of intoxicating liquors.

The answer, which is of great length, fully puts in issue the right of plaintiff to recover in this action. It is also alleged, among other matters, that the policy made out and signed by the defendant and afterwards forwarded to its agent at Seattle was not forwarded for the purpose of delivery, but to be held there pending further investigation by defendant of the habits of Francis in regard to the use of intoxicants with the intent that, if the investigation should prove favorable to Francis, the policy might be delivered to him upon his payment of the first annual premium, and that the defendant had not, at the time of the death of Francis, approved his application for insurance nor been willing to do so.

The reply puts in issue the new matter in the answer. On the trial, the defendant had a nonsuit, and plaintiff appeals. Other facts necessary to a decision of this case appear in the opinion.

Miller Murdoch (J.W. Bell and John Manning, on the brief), for appellant.

Jerry Bronaugh (Bronaugh & Bronaugh, on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

A nonsuit is predicated upon the assumption that there is no reasonable theory consistent with which the evidence introduced by the plaintiff will support a verdict in her favor. We will now consider the evidence introduced by plaintiff on the trial, in order to ascertain whether, viewed in any reasonable light, it would have justified a verdict had the court seen fit to submit it to the jury.

There was evidence tending to show: That Richard W. Francis, the deceased, on the 27th day of June, signed an application for insurance at the instance of a solicitor for the defendant company; that he passed a medical examination, conducted by a medical examiner of defendant; that he gave to the solicitor a promissory note, payable to his own order and by him indorsed, payable at the office of the defendant on the 15th of the ensuing November, which note was for the exact amount of the premium. The note was absolute on its face, and negotiable, and not burdened with any of the conditions customary in what are usually termed "premium notes." The evidence tended to show that the note was at some time forwarded to the defendant, but whether retained in the office of its agent in Seattle, or in the head office in New York, does not appear, though an offer to return it was made through the office at Seattle after the death of Francis. It further appears that a policy in regular form, signed and sealed by the company, was made out and forwarded to the general office at Seattle a few days before the death of Francis, and was in said office at the time of his death.

The application, which was upon a blank of defendant company, is as follows:

"This application made to the Mutual Life Insurance Company of New York is the basis and a part of a proposed contract for insurance, subject to the charter of the company and the laws of the state of New York. I hereby agree that all the following statements and answers, and all those that I make to the company's medical examiner,

in continuation of this application, are by me warranted to be true, and are offered to the company as a consideration of the contract, which I hereby agree to accept, and which shall not take effect until the first premium shall have been paid during my continuance in good health, and the policy shall have been signed by the secretary of the company and issued. I further agree that in any distribution of surplus, the principles and methods which may then be in use by the company shall be and are hereby ratified and accepted by me and for every person who shall have or claim any interest in the contract.

"1. My full name is Richard W. Francis.

"2. I reside at 6 mi. s. of Prosser. In the City of ...... County of Benton. State of Wn.

"2A. I do not contemplate going to any foreign country except no.

"3. My former residences were Grass Valley, Oregon.

"4. My place of business is Benton Co., Wn.

"5. My P.O. address is Prosser, Wn.

"6. My present occupation is wheat growing, in the following branch of business or trade, ......

"7. My other occupations are none.

"8. My former occupations have been same since childhood.

"9. The full name of the person to whom the insurance is payable is Mary Cordelia Francis if living, if not, to my estate.

"10. Residing with me.

"11. The relationship of said beneficiary to me is that of wife.

"12. The insurable interest of the said beneficiary in the life proposed for insurance, other than that of family relationship, is .......

"13. I hereby apply for insurance on my life on the income life plan life years' payments 20 year distribution.

"14. Amount, $5,000.

"15. The premiums are to be paid ...... annually.

"16. I was born on the 24th day of October, 1873, in Montgomery, North Wales.

"17. I am a citizen or subject of the United States.

"18. I have been accepted for insurance under the following policies in this company: None.

"19. I am insured in other companies and associations, as follows: 1000 Mass. Mutual, and in no others.

"20. I have never made an application for life insurance to any company or association upon which a policy has not been issued on the plan and premium rate originally applied for, except to the following companies or associations: None, and no such application is now pending or awaiting decision.

"I hereby warrant and agree that during the next two years following the date of issue of the contract of insurance for which application is hereby made, I will not engage in any of the following extra hazardous occupations or employments: Retailing intoxicating liquors, handling electric wires and dynamos, blasting, mining, submarine labor, aëronautic ascensions, the manufacture of highly explosive substances, service upon any railroad train or track or in switching or in coupling cars, or on any steam or other vessel, unless written permission is expressly granted by the company.

"I also warrant and agree that I will not die by my own act, whether sane or insane, during the period of one year next following said date of issue.

"I have paid $______ to the subscribing soliciting agent, who has furnished me with a binding receipt therefor, signed by the secretary of the company, making the insurance in force from this date, provided this application shall be approved, and the policy duly signed by the secretary at the head office of the company and issued.

"Dated...