House v. Davis

• Decision Date: 01 October 1917
• Docket Number: 132
• Parties: HOUSE, RECEIVER FOR PLANTERS FIRE INSURANCE COMPANY v. DAVIS
• Court: Arkansas Supreme Court

197 S.W. 693

130 Ark. 387

HOUSE, RECEIVER FOR PLANTERS FIRE INSURANCE COMPANY v. DAVIS

No. 132

Supreme Court of Arkansas

October 1, 1917

Appeal from Columbia Circuit Court; C. W. Smith, Judge; reversed.

Judgment reversed.

Joe Joiner, for appellant.

The court's instructions 1 and 2 were misleading. Actual receipt of the policy by the insured was not necessary to fix the liability. Where nothing remains to be done by the insurer, the mailing of the policy duly executed to the insured, constitutes delivery. 97 Ark. 229; 65 Ark. 581; 96 N.W. 954; 98 Ark. 388; 19 Cyc. 603. Manual delivery is not essential to render a policy binding. 9 Ky. Law Rep. 932; 28 Me. 51; 48 Am. Dec. 474; 87 U.S. 560; 64 N.H. 137; 26 N. J Law 268; 23 Wend. 18; 12 So. 25; 54 N.E. 914; 19 Cyc. 609; 85 Ark. 169.

The verdict was contrary to the evidence and to the law as declared by the court in instruction 5. The court should have directed a verdict for the appellant. 97 Ark. 438; 89 Ark 24; 110 Ark. 571; 114 Ark. 574; 116 Ark. 284.

Stevens & Stevens, for appellees.

1. On the whole record the appellant has not made out a case. The note was not the entire contract, but that in connection with the application, the agent's receipt for the application and the policy, constituted the contract of insurance.

The policy could not become binding on appellee until delivery to him. He was entitled to see it to ascertain if it was the policy contracted for, and to a reasonable time in which to return it if it did not comply with the contract. 86 Ark 284; 102 Ark. 146. If the policy was not delivered there was no contract of insurance, and the verdict should not be disturbed. 97 Ark. 231.

2. Instructions 1 and 2 given at appellee's request were correct, under the evidence. Decisions cited by appellant do not support his contention, while 98 Ark. 388 cited, favors appellee on point that the presumption of delivery of a letter properly addressed may be rebutted by evidence that it was not in fact received by the addressee.

Joe Joiner, for appellant, in reply.

The burden was on appellee. The note was the basis of the action the execution of which appellee admitted and pleaded want of consideration. 82 Ark. 331.

STATEMENT BY THE COURT.

This suit was instituted by the appellant on a promissory note executed by the appellee in payment of the cash premium on a fire insurance policy for which the appellee had applied in the Planters Fire Insurance Company. On the back of the note was stamped, "Policy No. 47,213."

The appellee admitted the execution of the note, but denied liability on same, alleging that the insurance company had not executed and delivered to him a policy of insurance in accordance with his application; that said Fire Insurance Company was insolvent and no longer able to carry out its contract of insurance.

The testimony on behalf of the appellant tended to show that the appellee made application for insurance and executed the note in suit for the cash premium; that appellee's application was accepted by the insurance company and a policy of insurance was issued and mailed to the appellee; that appellee never notified the company that he had not received his policy and had not asked the company to issue him a new one or to return his note; that demand for the payment of the note had been made and same refused. Record Book No. 3 of the insurance company, in which the policy holders in the Planters Fire Insurance Company were recorded, shows that a policy was issued to Joe Davis (appellee) and numbered 47,213, corresponding to the number stamped on the note. The insurance company had become insolvent after the issuance of the policy and had been placed in the hands of appellant as receiver.

The receiver testified that appellee was carried as a policy holder and stock holder on the books of the company; that if he had suffered a loss of his property during the life of his policy his loss would have been paid, and if there had been any profits during that time he would have received his part. He executed power of attorney and proxy to certain officers of the company to act for him in stockholders' meetings, which was exercised by him through the secretary of the company. The receiver stated that he, as receiver, had no connection with the company in 1913 except as a policy holder, and that his evidence is drawn from the records of the company.

The appellee testified that he signed the note in suit and signed it on condition that the company would issue him a policy. He introduced a copy of the application which was signed by him and which, among other things, contained the following recital: "And should this application be accepted and a contract of insurance issued thereunder, I do hereby exercise and deliver this power of attorney and proxy and constitute and appoint M. H. Johnson, president, or T. T. Cotnam, vice-president, severally and not jointly, or their successors duly authorized, my sole, true and lawful attorney and agent for me and in my name, place and stead, to vote as my agent, attorney," etc. "This power of attorney and proxy shall be valid and effectual and shall continue in full force during the existence of this contract."

The company issued a receipt to the appellee for his application, showing that the application had been received and note for the cash premium executed, and contained this recital: "All of which to be returned if a contract be not issued. Contract to be sent by mail. Should you not receive your contract within fifteen days write to the company and give name of the solicitor and date of this receipt."

The appellee testified that he never got a policy, but that a week or two after the agent had gone he got a letter informing him that his application had been accepted. He did not know whether they had mailed the policy or not. He received the receipt containing the recitals above set out. He never wrote them concerning the policy. Never asked them to return his note and never informed the company that he had not received the policy until after the suit was brought. After the company wrote him that they would send him the policy he never paid any more attention to it; just thought that he had been insured. It was about three and a half years after the application was made until this suit was brought.

Over the objection of appellant the court gave the following instructions:

"1. The court instructs the jury that if they find from the evidence that the policy was not issued in accordance to the application of the defendant and received by him in pursuance of said application then you will find for the defendant.

"2...