Inter-Southern Life Insurance Co. v. Ransom

• Decision Date: 11 July 1921
• Docket Number: 97
• Citation: 232 S.W. 754,149 Ark. 517
• Parties: INTER-SOUTHERN LIFE INSURANCE COMPANY v. RANSOM
• Court: Arkansas Supreme Court

232 S.W. 754

149 Ark. 517

INTER-SOUTHERN LIFE INSURANCE COMPANY v. RANSOM

No. 97

Supreme Court of Arkansas

July 11, 1921

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

Hartsill Ragon, for appellant.

The court erred in overruling plaintiff's motion to require the complaint to be made more definite in regard to delivery of the policy. Under the pleadings the issue hinged upon a manual delivery of the policy to insured. The evidence showed a delivery of the policy by a stranger to insured's wife. This occasioned a surprise to appellant. 71 Ark. 197; 55 Ark 567.

There was never a contract between the parties. See 115 F. 81. The insured never accepted the policy. 27 S.E. 38. To be effective, an acceptance of an application must be in the very terms offered. 14 R. C. L. 895; 12 L. R. A. (N. S.) 421. It is the duty of insured to examine his policy within a reasonable time. 81 Ark. 269; 86 Ark. 283. There was no meeting of minds. 111 Ark. 342.

There was not such a waiver of its rights by the company as to bind it. The application was a part of the policy. The provision as to delivery and receipt of the policy while in good health was not a mere representation. 133 Ark. 348; 236 Ill. 444; 59 Ill. 123. It constituted a warranty. There was no waiver of such warranty. 3 Cooley, Brief on Laws of Ins., p. 2367. Delivery to the wife did not constitute delivery to insured. 187 P. 405. The agent was not authorized to waive a warranty as to delivery.

Webb Covington, for appellee.

There was a delivery and acceptance of the policy. The agent knew insured was sick when he delivered the policy. This was a waiver of the provision as to delivery to insured while in good health. 217 N.Y. 336; 190 Ill.App. 604; 111 Ark. 442; 129 Ark. 240; 162 S.W. 10; 129 Ark. 450. The agent of insurer had a right to select his own method of delivery.

OPINION

WOOD, J.

On the 13th day of July, 1920, Isaac H. Ransom made application to the appellant for a policy of life insurance in the sum of $ 1,000 in favor of his wife, the appellee. The policy was issued on August 20, 1920, and was sent to appellant's agent, H. D. Coffee, at Clarksville Arkansas, some time prior to the 25th day of August, 1920. Coffee delivered the policy to one Earle Mardis, who was the manager of a coal mine at which Ransom worked, and Mardis delivered the policy to the appellee. Ransom became ill on the 5th of August, 1920, with typhoid fever, and died on September 16, 1920. This action was instituted by the appellee against the appellant on the policy. The appellant answered denying all material allegations of the complaint and set up in defense, among other things, the following provision of the application:

"Second. That no contract of insurance shall be deemed made, and no liability on the part of said company shall arise, until a policy shall be issued and be delivered, and be personally and manually received by me, and the first premium thereon actually paid, all during my lifetime and while I am in good health, and that for the first full annual premium paid thereon, the protection thereunder shall cease and end one year and one month (not less than thirty days) from the date of the policy issued hereunder, at 12 o'clock noon, standard time, reckoned at my domicile at this time, whether a full year shall have expired from the date such protection began thereunder or not."

The appellant alleged that the policy of insurance was not issued and delivered, and "personally and manually received" by Isaac H. Ransom and the first premium paid during his life and while he was in good health; that at the time of the issuance of the policy and at the time of its alleged delivery, Isaac H. Ransom was in a poor state of health, confined to his bed, suffering from a critical illness from which he grew progressively worse until his death.

The appellee testified that she was the wife of the insured. She identified the policy which is the foundation of the action and stated that same had been delivered to her on the 25th or 26th of August, 1920. It was delivered through Mr. Coffee and was brought to her home by Earle Mardis. Her husband was taken sick on the 5th of August. She was asked, "Did you read him the policy?" and answered, "Yes, sir; I don't know that I read it word for word, but I went over it with him. He knew that I had it." She was further asked: "Q. He was in a condition of health at that time that you couldn't worry him with a policy?" "A. I didn't deem it necessary, and I didn't do it. I didn't know it was necessary, while he could have understood it, but I didn't deem it necessary." She further testified in answer to questions that her husband understood that she had the policy; that he was not unconscious until about twelve hours before his death. He would have understood the policy if she had gone into details with him, which she didn't do because she didn't deem it necessary. She didn't sign any receipt for the policy.

The attending physician testified that Ransom was afflicted with, and died of, typhoid fever and its complications.

H. D. Coffee testified that he was the agent of the appellant at Clarksville, Arkansas, and received through the mail from the appellant the policy for delivery to the insured. He didn't deliver it personally to the insured, but gave it to Earle Mardis to deliver. He didn't know the exact condition of the health of the insured at the time--knew that he was sick--had been told that he was--had never seen him and didn't know how serious his illness was. Witness was asked whether he discussed with Mardis the condition of Ransom's health at the time, and answered that he couldn't tell about that. He was asked whether he and Mardis arranged to deliver the policy so that the witness would not know about the condition of Ransom's health and answered, "There was no arrangement made any more than I handed the policy to him and asked him if he would take it up there. He said he was going to see how he was getting along." Witness did not present the insured or his wife with the receipt for the policy. Witness stated that he wouldn't ask the appellee to forge her husband's name on a post card receipt in which it stated that he was in good health. Witness further testified that the kind of insurance Ransom applied for was known as "compound optional ordinary life with complete disability and double indemnity benefit." The premium for the policy he applied for was $ 34.45. He was asked if there was a little notice with the policy, and stated that he thought there was, and that he tore the same out because he didn't think it had any business in there.

The vice president of the appellant testified that the application was for the kind of policy as before stated; that the company was unable to deliver a policy of that kind for the reason that Ransom was a mine foreman. The appellant issued another policy, the kind it felt it could issue and deliver to one in that occupation. The premium on the policy applied for was $ 34.45 with an 80-cent war tax. The premium on the policy sent to Ransom was $ 32.22 per thousand with an 80-cent war tax. There was a difference in the two kinds of policies, consisting of the complete disability and double indemnity features, which the witness explained. The witness stated that the appellant always sent notices on all policies showing that its agents were required to receive the personal signature of the insured and return the same to the company; that the appellant did not receive the card from Ransom countersigned.

Another witness testified that he, in company with Coffee, solicited the application of Ransom for insurance at the latter's home on the 13th day of July, 1920; that Ransom said that he would not take the "compound optional ordinary life" policy. Witness explained to him and he finally applied for the policy with double indemnity and complete disability features, another policy from that which was issued; that was the only one he would accept. The witness further stated that he delivered several policies in Clarksville with the green sheet on it. That receipt was to show that the insured received it during the time of his good health and that it was the same policy he had applied for. The instructions to the agent were to have the insured sign this receipt personally and mail it to the home office.

At the conclusion of the testimony the appellee asked the court to instruct a verdict in her favor, and the appellant likewise asked the court to instruct a verdict in its favor. The court directed the jury to return a verdict in favor of the appellee for the full sum as shown by the fact of the policy, and from a judgment in favor of the appellee for that sum is this appeal.

1. It is a close question of fact in this case to determine whether the minds of the parties met upon the contract of insurance as evidenced by the policy which is the basis of this action. As both parties asked a peremptory instruction in their favor and did not request other instructions, the only question for us to determine is whether the evidence is legally sufficient to sustain the verdict directed by the trial court. St. L. S.W. Ry. Co. v. Mulkey, 100 Ark. 71; St. L., I. M. & Sou. Ry. Co. v. Ingram, 118 Ark. 377; Hall v. Harrel, 136 Ark. 329, 206 S.W. 435; Gibson v. Allen-West Commission Co., 138 Ark. 172, 211 S.W. 142; Oil Trough Gin Co. v. Hines, 141 Ark. 133, 216 S.W. 310.

Even if the finding of the court in directing the verdict on the facts be against the decided preponderance of the evidence it is not our province on appeal to determine where the preponderance lies. The finding of the trial court based upon conflicting evidence is conclusive on appeal; and the evidence must...