Lamar Life Ins. Co. v. Kemp, 28014

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ANDERSON, J.
• Citation: 124 So. 62,154 Miss. 890
• Parties: LAMAR LIFE INS. CO. v. KEMP
• Decision Date: 14 October 1929
• Docket Number: 28014

124 So. 62

154 Miss. 890

LAMAR LIFE INS. CO.
v.
KEMP

No. 28014

Supreme Court of Mississippi

October 14, 1929

Division B

1. INSURANCE. Whether first premium on life insurance policy had been paid held for jury.

In action on life insurance policy, question whether first premium had been paid held for jury.

2. INSURANCE. Act of insurer's soliciting agent in delivering life policy without collecting first premium was insurer's act, notwithstanding provisions in application and policy to contrary (Hemingway's Code 1927, section 5873).

Under Hemingway's Code 1927, section 5873 (Code 1906, section 2615), act of insurer's agent in delivering life insurance policy without collecting first premium was act of insurer, notwithstanding provision in application for insurance and in policy to contrary.

3. APPEAL AND ERROR. In action on life insurance policy, attorney's argument, made to bolster up plaintiff's testimony regarding receipt for premium, held not prejudicial.

In action on life insurance policy, wherein plaintiff testified that receipt given insured might have been filled out and detached from duplicate application, plaintiff's attorney's argument to bolster up plaintiff's testimony to effect that agent, at time application was executed, made a duplicate application, and that it might have been that receipt to duplicate application was detached, as was testified to by plaintiff, held not such flagrant misconduct as was materially harmful to defendant.

HON. E. S. RICHARDSON, Judge.

[154 Miss. 891] APPEAL from circuit court of Rankin county, HON. E. S. RICHARDSON, Judge.

Action by Clode C. Kemp against the Lamar Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.

A stipulation in a policy of insurance that no agent has power to modify the terms of the contract, or waive its conditions, is notice to the insured of the limited authority in these respects and under such a stipulation the insured cannot rely upon any actual conduct of the agent as constituting a modification or waiver.

New York Life Insurance Co. v. O'Dom, 100 Miss. 219; Insurance Co. v. Sorsby, 60 Miss. 14; Cooley's Briefs on the Law of Insurance, Vol. 3, p. 2486; Iowa Life Insurance Co. v. Lewis, 187 U.S. 335, 23 S.Ct. 126, 47 L.Ed. 204, et seq.; Phoenix Mutual Insurance Co. v. Doster, 106 U.S. 33, 1 S.Ct. 18, 27 L.Ed. 65; Cleaver's case in 65 Mich. 527, 32 N.W. 660; 8 Am. St. Rep. 908; 25 Cyc. 861; 32 N.W. 660, 8 Am. St. Rep. 908; Crook v. New York Life Insurance Co., 112 Md. 268, 75 A. 388; Cooley's Briefs on the Law of Insurance, Vol. 3, p. 2509; Westerfeld v. New York Life Insurance Co. 129 Cal. 68, 58 P. 92, 61 P. 667; Porter v. Friendly Society, 114 Ga. 937, 41 S.E. 45; Dimick v. Metropolitan Life Insurance Co., 69 N. J. Law, 384, 55 A. 291, 62 L. R. A. 774; Ruggles v. Am. Cent. Ins. Co., 114 N.Y. 415, 21 N.E. 1000, 11 Am. St. Rep. 674; New York Life Ins. Co. v. Fletcher, 117 U.S. 541, 6 S.Ct. 837, 29 L.Ed. 934; Ins. Co. v. Gibbons, 43 Kan. 15, 22 P. 1010, 19 Am. St. Rep. 122.

Counsel should not be permitted, in arguments to the jury to state or comment on facts not proven. The judge should, suo sponte, interpose and correct any such irregularity, and if he does this in a case, a new trial will not be granted because of such statements and comments made by the counsel of the prevailing party.

L., N. O. & T. Ry. Co. v. Van Easton, 14 So. 267; Mitchum's case, 11 Ga. 633; Berry's case, 10 Ga. 511; Dickerson v. Burke, 25 Ga. 227; Martin v. State, 63 Miss. 508; Perkins v. Guy, 55 Miss. 153, 30 Am. Rep. 510; Cavanah v. State, 56 Ib. 299; Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ib. 386; State v. Smith, 75 N.C. 306; Proffatt on Jury Trials, sec. 250; Pullman v. Lawrence, 74 Miss. 782; J. J. Newman Lumber Co. v. Norris, 130 Miss. 751; White's Market & Grocery Co. v. John, 121 So. 825.

S. L. McLaurin, of Brandon, for appellee.

The policy itself, with the recital therein of the advance payment of the initial premium, is conclusive evidence of payment and cannot be disputed.

Mutual Life Insurance Co. v. Vaughn, 125 Miss. 369; Thompson v. Bryant, 75 Miss. 12.

Where there was a sharp conflict in the testimony as to whether or not the initial premium was paid it was not error to submit the question to the jury.

Burill v. Rau, 121 So. 119.

Delivery of a policy by the agent is delivery by the company, and it has the same effect as if it had been delivered by the president of the company.

Sec. 2615, Mississippi Code of 1906; Sec. 5078, Hemingway's 1917 Code; Assurance Co. v. Phelps, 77 Miss. 657; Stewart v. Coleman & Co., 120 Miss. 28; Mutual Life Ins. Co. v. Vaughn, 125 Miss. 369.

OPINION

[154 Miss. 892] ANDERSON, J.

Appellee brought this action against appellant in the circuit court of Rankin county to recover one thousand dollars, the face value of a life insurance policy issued [154 Miss. 893] and delivered by appellant to John Ellie Kemp, the seventeen...