Hines v. Kansas City Life Ins. Co.

• Citation: 260 S.W. 688
• Decision Date: 28 February 1924
• Docket Number: (No. 50.)
• Parties: HINES v. KANSAS CITY LIFE INS. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

260 S.W. 688

HINES v. KANSAS CITY LIFE INS. CO.^*

(No. 50.)

Court of Civil Appeals of Texas. Waco.

February 28, 1924.

Rehearing Denied March 27, 1924.

Appeal from District Court, Madison County; Carl T. Harper, Judge.

Action by Armenta Hines against the Kansas City Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

S. W. Dean, of Navasota, and J. M. Brownlee, of Madisonville, for appellant.

Cockrell, McBride & O'Connell, of Dallas, for appellee.

GALLAGHER, C. J.

Mrs. Armenta Hines, appellant herein, sued the Kansas City Life Insurance Company, appellee herein, to recover the sum of $5,000, the amount stipulated to be paid by appellee to the estate of her deceased husband, John W. Hines, by the terms of a certain policy of insurance on his life in the event he died while such policy was in force. She also sued for interest, penalty and attorney's fees, as provided by statute for a failure on the part of a life insurance company to pay a loss under one of its policies after legal demand therefor. Appellee denied liability on said policy. There was a trial before the court, which resulted in judgment in favor of appellee. Appellant has presented said judgment, together with the proceedings resulting in the same, to this court for review.

She sued as executrix of the will of the insured and as sole legatee thereunder. There are no findings of fact incorporated in the judgment. There are no findings of fact nor conclusions of law found in the record; neither does the record disclose a request therefor.

The application made by the insured upon which the policy sued on was issued contained, among other provisions, the following:

"That it is expressly agreed to and understood upon my part that this contract is to be null and void and of no binding force whatever, unless my application is received and accepted at the home office of the company and approved by the medical examiner, and the policy of insurance is delivered to me or my beneficiary during my lifetime and while I am in good health."

This application was taken by R. M. Conner, local agent for appellee in Madison county. It contains a statement, signed by said agent, which, so far as the same concerns the payment of premium, is as follows: "Amount collected: Cash $____; note $____; total $ C. O. D." Said application also contained the following direction: "If policy is issued, send it to R. M. Conner at Madisonville, Texas." The insured submitted to medical examination as required, and said application, together with the report of the physician making such examination, was forwarded to the office of appellee's state manager at Dallas, and received there on February 27, 1920. It was promptly mailed from there to the home office of appellee in Kansas City, Mo., where it was duly considered and approved on March 4, 1920. The policy sued on was written in pursuance of such application on March 6, 1920, but bore the same date as the approval of the application. It was duly registered by the insurance department of the state of Missouri on March 8, 1920. It was then sent to the office of appellee's state manager at Dallas, from whence it was on March 10th mailed to R. M. Conner at Madisonville, where it should have arrived some time in the afternoon of March 11th. It was actually received by Conner, who lived on a rural route out of Madisonville, on March 13, 1920. Said policy contained, among other provisions, the following:

"(1) This policy shall not take effect unless the first premium hereon has been paid and this policy delivered to the applicant within thirty days from the date hereof, or unless the applicant is in good health at the time of its delivery."

"(8) No agent has power on behalf of the company to modify this contract, to extend the time of payment of premiums, to waive any forfeiture, to bind the company by making any promise or any representation, or to deliver any policy, contrary to the provisions of section one (1) hereof. These powers can be exercised only by the president, vice president, secretary or assistant secretary of the company, and will not be delegated. * * *"

"This policy is issued in consideration of the stipulations, agreements and representations made in the application for this policy, a copy of which application is hereto attached and made a part hereof, and said policy and application constitute the entire contract between the parties hereto."

The insured, John W. Hines, did not pay the annual premium to the agent at the time he signed and delivered said application. The agreement between him and Conner concerning the payment of the premium and delivery of the policy, if issued, was, according to appellant's testimony, as follows:

"Mr. Conner agreed to deliver the policy and receive his premium at the Farmers' State Bank. As far as I can remember, Mr. Conner seemed to think it would be perfectly all right. He was to leave the policy at the bank and receive the money for the premium at the bank. The agreement was that he was to leave the policy at the bank for Mr. Hines and get his money at the bank. Mr. Hines was to make arrangements for him to get the money there. Yes, sir; he made such an arrangement. Yes, sir; I know that the money was there for him, and the money has been there since that time for him, and it is there yet. It is there for them now if they will accept."

Such agreement, according to Conner's testimony, was as follows:

"In taking the application from Mr. Hines, I wrote out the contract in regular form and had only one understanding with reference to the premium, and that agreement was that Mr. Hines was to come down and arrange with the officers here at the bank to pay me the premium on the policy when the policy was delivered, and I was to deliver the policy here to the bank, and they were to pay for it. The agreement between me and Mr. Hines was that I was to receive the policy for Mr. Hines, and the policy was to be sent to me, and I agreed to turn it over to the bank for Mr. Hines, and I wrote on the application that it was to be sent direct to me."

The insured was in good health at the time of said application and medical examination. According to appellant's testimony, he took sick with influenza, commonly called "flu," on the 26th or 27th day of February and called his family physician. She further testified that the insured got over the flu and was better and could sit up, and that his physician had dismissed the case; that he was up and about the place from about the 4th to the 6th day of March, inclusive; that on March 6th or 7th he had a chill and fever and developed pneumonia, and died about noon on March 11. She denied that the physician called every day from the time insured took sick, but testified that he stopped in nearly every day as he passed by.

The attending physician testified that when he was first called, about February 29th, he found the insured suffering from cold, pleuritic pains, and fever, and diagnosed the case as influenza; that the usual symptoms of a mild case of flu continued until about the 5th or 6th day, when temperature became normal and so remained until about the 7th or 8th day, when pneumonia developed; that insured died about March 11, 1920; that the immediate cause of death was progressive heart weakness, and that pneumonia, which the patient had had for about three or four days before his death, was the contributing cause; that he made the patient about twelve visits in all. This witness does not testify that he discharged the patient at any time, but treats the time from his first visit to the death of the patient as one continuous period, indicating the different stages by counting the days from his first visit.

Another physician testified that he was called in consultation with the physician attending the insured on or about March 6th, and found him just recovering from influenza and in a very nervous state; that he suspected that insured might develop pneumonia; that in his opinion the death of the insured resulted from after effects of influenza, finally developing into pneumonia.

There were no special instructions given with reference to the delivery of this policy, but the general instructions given by the company to its agents, including Conner, were printed in its rate book, and were as follows:

"Should the health of the applicant become impaired, or anything else come to the knowledge of the agent making the risk undesirable, after the application is written and before actual delivery of the policy, the agent must notify the company of the facts and immediately return the policy to the home office."

The agent Conner, on receipt of the policy, took it to the bank, as he agreed with insured to do, but, because the insured was then dead, he refused to leave it or to accept the amount of the premium which the bank had instructions to pay him on receipt of the policy. Later he returned the policy to the company.

Appellant does not deny that the insured was ill from February 26th or 27th until about March 3d, inclusive, nor that he was seized with the attack of pneumonia which resulted in his death, not later than March 7th, but she contends he was in good health from March 4th to March 6th, inclusive. She further contends that, under the agreement above stated, Conner was the agent of the insured to receive the policy and to deliver it to the bank. She further contends that under the facts recited the contract of insurance was completed and became binding on the company when the application was approved, and that there was a constructive delivery of the policy when the company placed the same in the mail at Kansas City to be transmitted to its Texas office, and from thence to Conner at Madisonville, and that all the same occurred during the time she claims the insured was in good health.

The finding of the court in favor of appellee being general, every issuable fact must be considered found in its...