Glendy v. National Travelers Benefit Ass'n

• Decision Date: 25 June 1917
• Docket Number: 31287
• Citation: 163 N.W. 352,180 Iowa 572
• Parties: FRANCES GLENDY, Appellant, v. NATIONAL TRAVELERS BENEFIT ASSOCIATION, Appellee
• Court: Iowa Supreme Court

163 N.W. 352

180 Iowa 572

FRANCES GLENDY, Appellant, v. NATIONAL TRAVELERS BENEFIT ASSOCIATION, Appellee

No. 31287

Supreme Court of Iowa, Des Moines

June 25, 1917

Appeal from Tama District Court.--B. F. CUMMINGS, Judge.

ACTION at law to recover $ 1,000 on account of the alleged negligence of the defendant and its agents in not issuing a policy for accident insurance. Trial to jury, and, at the close of all the evidence, the court sustained defendant's motion for a directed verdict. The plaintiff appeals.

Affirmed.

S. C Huber and M. W. Hyland, for appellant.

No appearance for appellee.

PRESTON J. GAYNOR, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

PRESTON, J.

1. Plaintiff is administratrix of the estate of deceased Charles Harding, and was named beneficiary in an application for accident insurance policy in defendant company. Deceased was a son of plaintiff's. On July 1, 1914, deceased made written application to one M. T. O'Connell for an accident policy of $ 1,000 in defendant company. O'Connell, as a witness, says he had no license from the state of Iowa to write insurance. At the time O'Connell took this application, his business was driving for one Leanord, who was agent for defendant company. Leanord had been out of town for some days, or perhaps weeks, before O'Connell took the application in question. O'Connell claims that he had some arrangement with Leanord to take applications, and that Leanord left him some blanks; although O'Connell says he thinks the Harding application was not made on one of the blanks left by Leanord. O'Connell says that he sent in other applications, some of which were accepted by defendant, and that the company sent him blank applications and a letter requesting him to write applications. This is denied by defendant, and the letter was not produced. The defendant also denies that it issued policies on applications sent in by O'Connell previous to the application in question. It may be that, under the record, it should be held that, within a short time after deceased was injured, O'Connell was authorized to take applications. But the question is, of course, whether O'Connell was the agent of defendant at the time Harding's application was taken. This is one of the questions argued, but we think the case should be determined on another ground.

On the back of the application is a statement, "First payment, with application, $ 4.00," and appellant concedes in argument that, "On the back cover of the application there is a statement to the effect that the first premium must accompany the application;" but argues that, because of the position of this statement on the application, it would not bind the applicant. The evidence of the defendant's officers, testifying as witnesses, is that it was the universal rule of the company that the money must accompany the application. At one place in his testimony. O'Connell says he thinks that he sent the application and the premium to the company in the same envelope, and that the first payment was sent by post-office money order. The money order or the record thereof in the post-office department was not produced. The application was received by the defendant company in Des Moines, July 7, 1914, and the company has ever since retained the application. No policy was ever issued. Defendant denies that the premium was received at the time of the application, and shows that it never was received by it. O'Connell testifies that Harding did not pay the $ 4 at the time that he made the application, but that he was to come in later and pay it, and that he did so either on July 4th or 11th. Both of these dates are on Saturday. We shall later set out the evidence on this point, but say now that, under the record, there can be but little, if any, dispute but that, taking the record altogether, it was on Saturday the 11th.

Deceased was injured by a fall from a hayrack on Monday, July 13th. The time of day is not shown, but it was before 4 o'clock in the afternoon; he was taken to the hospital at or before 4 o'clock. The undisputed evidence is that, in the ordinary course, it would take from 2 to 4 days for an application to be sent from Tama to Des Moines and for a return of the policy; that the average would be 3 days, but that this would depend somewhat upon the number of applications being received by the company; and that they were taken up in the order of their receipt. Testimony also shows that, during the month of January, 1914, defendant received about 3,000 applications, and in July, 1914, 6,000, and that the increase was so great that the company could not break in help sufficient to take care of the increase in business.

The defendant's motion to direct a verdict was upon several grounds, and, if it was good upon any ground, it would work an affirmance. We think the motion was good on the ground that, under the undisputed evidence, and as a matter of law, the plaintiff failed to show any negligence of the company or its agents. We think it was not required to issue a policy until the first premium had been paid. We think that the payment of the premium was required, and that the company would not be required to issue a policy, nor would the agent be required to send in the application, until it was paid; at least, the company could not be held to be negligent for not issuing the policy if it refused on that ground. It is at least doubtful, under the record, whether O'Connell was at that time the agent for defendant. If he was not, then defendant would not be required to issue a policy on the application alone, even though O'Connell had received the premium. The premium never was received by the company, and, as said, it was not paid by the applicant to O'Connell until Saturday evening, July 11th, at 9 or 10 o'clock; so that, at the most, it was at least 2 days from the time of the payment of the premium to O'Connell to the time when deceased was injured, and one of these days was Sunday, leaving less than 2 days' time within which the application could be sent in to Des Moines, acted upon, and the policy returned to Tama.

Appellant relies upon the case of Duffie v. Bankers' Life Assn., 160 Iowa 19, 139 N.W. 1087, where it is held substantially, that, where the applicant has done all he could, or was required to do, it should be held that there is reasonable probability that the policy would have been issued, but for the delay and negligence of the company or its agents. Appellant says, too, that, under the doctrine of that case, the question as to whether there was unreasonable delay was for the jury. That was the holding in that case, where the delay was about 30 days. But...