Hawley v. Mich. Mut. Life Ins. Co.

• Decision Date: 14 December 1894
• Citation: 61 N.W. 201,92 Iowa 593
• Parties: HAWLEY v. MICHIGAN MUT. LIFE INS. CO.
• Court: Iowa Supreme Court

92 Iowa 593

61 N.W. 201

HAWLEY

v.MICHIGAN MUT. LIFE INS. CO.

Supreme Court of Iowa.

Dec. 14, 1894.

Appeal from district court, Wapello county; E. L. Burton, Judge.

Action on a policy of life insurance. Judgment for plaintiff, and the defendant appealed. Reversed.W. H. C. Jaques, for appellant.

Wm. McNett and J. W. Lewis, for appellee.

GRANGER, C. J.

The plaintiff is the administratrix of the estate of L. A. Stevens, deceased. L. A. Stevens, in his lifetime, had a policy for $2,000 in the defendant company, which was, by its terms, payable to one H. Moyer, and bearing date October 24, 1891. A. G. Edwards was the general agent of the defendant company. Edwards made a written agreement with one N. E. Sherwood, whereby Sherwood was to engage in the service and employ of Edwards as agent in the state of Nebraska “to procure applications for insurance; to collect, so far as practicable, when authorized so to do, all premiums payable on account of such insurance; and to deliver, upon such collections, the policies and renewal receipts sent by the party of the second part for that purpose.” The application for the policy in suit was obtained on the immediate solicitation of Moyer, and sent by Moyer to Sherwood at Detroit, Mich., and was by Sherwood sent to the office of the company, and the policy made out and returned through Sherwood to Moyer, and received by him on the 28th day of October, 1891, at Omaha, Neb.; and the assured, L. A. Stevens, died at Ottumwa, Iowa, on the same day. A ground of defense to the action on the policy is that when Stevens died the policy had not been delivered and the premium paid, as required by the terms of the application and policy. Because of a clause in the policy, plaintiff concedes that “the company is not liable unless there was a delivery of the policy and a payment of the premium within the lifetime of the assured, and while he was yet in good health.” The following are important facts as to the application and the delivery of the policy: Moyer held the note of N. E. Sherwood and one Hodson for $300. Sherwood and Moyer agreed that Moyer should secure an application for a policy, the premium on which would be $59.80; that the premium should be paid by an indorsement on the Moyer note for that amount; and that the policy should be made payable to Moyer, to secure him for the amount of the premium thus advanced to Stevens. Moyer, in accord with this understanding, secured the application. The application is dated October 6, 1891, and signed by Stevens and Moyer, the latter being designated as “party in whose favor the policy is to be drawn.” The application is approved and recommended by “N. E. Sherwood, Agent.” When the policy was returned to Sherwood, at Detroit, he inclosed it to his father, E. Sherwood, at Omaha, with instructions not to deliver it to Moyer until the $59.80 was indorsed on the note, and the instruction to E. Sherwood was observed. The jury made the following special finding: “At the time Dr. Sherwood first handed the policy sued upon to Herman Moyer, do you find that Lewis A. Stevens was dead or alive? Ans. Dead.” The following is a clause of the policy: “It is hereby agreed that the policy shall not be in force unless the premium is actually paid to the company or its authorized agent, or a note given and accepted in the place of such payment, during the lifetime of the person whose life is insured, and the policy is actually delivered to the person for whose benefit is the insurance, during such lifetime.” Because of this clause, appellee conceded that the company is not liable, under the terms of the policy, “unless there was delivery of the policy and a payment of the premium within the lifetime of the assured.” The jury also...