Illinois Life Ins. Co. v. Wortham

• Decision Date: 09 June 1909
• Citation: 119 S.W. 802
• Parties: ILLINOIS LIFE INS. CO. et al. v. WORTHAM et al.
• Court: Kentucky Court of Appeals

119 S.W. 802

ILLINOIS LIFE INS. CO. et al. v. WORTHAM et al.

Court of Appeals of Kentucky.

June 9, 1909

Appeal from Circuit Court, Mercer County.

"Not to be officially reported."

Action by Everet Wortham and others against the Illinois Life Insurance Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Kohn Baird, Sloss & Kohn, E. H. Gaither, Henry W. Price, and W. W Stephenson, for appellants.

Emmett Puryear and Robt. Harding, for appellees.

LASSING J.

This is the second appeal of this case. The opinion on the former appeal is found in 107 S.W. 276. In that opinion the facts are stated at length, and for this reason a restatement is deemed unnecessary. The case was reversed on the former appeal because the trial court had peremptorily instructed the jury to find for the defendant company. In reviewing the case here, it was held that the evidence was sufficient to take the case to the jury upon the two questions of fact raised by the pleadings, to wit: First the question of the agency of Rue & Curry; and, second, as to whether or not Rue made to deceased such representations as to induce her to believe that by her failure to pay the fourth premium and retain the policy she would be entitled to the benefit of extended insurance for the term of three years and seven months as provided in the policy. Several questions are raised by counsel for appellant in brief upon this appeal, which under a long line of authorities cannot now be considered for the reason that they were settled on the former appeal. Even though these questions were not made where they were such as should or might have been made, and were before the court, they will be regarded as having been passed on. This rule has been invariably adhered to in all cases where the opinion does not expressly state that a particular point is not passed upon. There is thus eliminated from our consideration on this appeal all questions of the sufficiency of the pleadings, and the competency of the testimony which was introduced on the former trial, and the sufficiency of such testimony to take the case to the jury. The only questions which we will now consider are such as were raised during the progress of the trial from which this appeal is prosecuted, and which were not before the court on the former appeal.

The points in issue were but two, and these, by the evidence, were sharply defined. They are: (1) Were Rue & Curry in fact the agents of defendant companies, or either of them, in the business transactions had between deceased and the company; and (2), if they were such agents, did Rue make such representations to deceased as induced her to fail to meet the fourth payment and retain her policy, believing that she had by so doing converted same into a policy for extended insurance.

The defendants introduced the officers of their respective companies and the records kept by them, and in this way showed that neither Rue & Curry as a firm or individually were their agents in any sense. As opposed to this, the plaintiff introduced testimony to the effect that Rue was present at the time the application was made for the policy. He was acquainted with deceased, and it was largely upon his solicitation that the application was given. Later, when the policy was issued, it was delivered to her by Rue, and she executed her note for the first premium, and gave it to him. The second and third premiums were paid to the company through the agency of Rue & Curry. For the sake of argument it might be conceded that in all of these matters neither Rue nor his firm were in fact the agents of the defendant companies. Still this fact was not known to the insured, Mrs Wortham, and, when Rue called upon and induced her to apply for the policy of insurance, and later delivered it to her, accepted her note payable to the company for the first premium, and collected the second and third premiums, and had the receipts therefor sent to her, if he did not deliver them...