McDonald v. Provedent Sav. Life Assur. Soc.

• Decision Date: 16 November 1900
• Parties: MCDONALD v. PROVIDENT SAV. LIFE ASSUR. SOC.
• Court: Wisconsin Supreme Court

108 Wis. 213

84 N.W. 154

MCDONALD

v.PROVIDENT SAV. LIFE ASSUR. SOC.

Supreme Court of Wisconsin.

Nov. 16, 1900.

Appeal from circuit court, Marathon county; W. C. Silverthorn, Judge.

Action by Mary Emma McDonald against the Provident Savings Life Assurance Society. From a judgment for plaintiff, defendant appeals. Reversed.

Action to recover on an insurance policy. One Harris, a general agent of the defendant insurance society, took Donald McDonald's application for life insurance therein for $5,000, the application being accompanied by the applicant's note for $315.25, the amount of the first premium, payable 10 days after the date thereof to the order of the assurer. On the margin of the note were these words: “To be returned if not accepted by P. S. L.” The application contained this provision: “The assurance hereby applied for shall not become binding upon the society until the first premium due thereon has been actually received by said society or its authorized agent, during my lifetime and good health.” The application also contained an interrogatory indicating that by actual payment of the first premium at the time of making the application the insurance would take effect from that time in event of the risk being accepted. This is the interrogatory: “What cash installment has been paid to make the assurance herein applied for binding from this date, providing the risk is assumed by the society?” For an answer there were underwritten the letters “C. O. D.” The risk was accepted and the policy was issued accordingly and sent to the agent, Harris, for delivery to McDonald, with a voucher to be also delivered to him on his paying the first premium. Harris, within a few days after receiving the policy and voucher, tendered them to McDonald and demanded payment of the note. The note was not paid, McDonald excusing nonpayment by saying that his wife was not yet satisfied with his taking the insurance. Harris left the policy with McDonald, keeping the note for collection, and the voucher. He thereafter deposited the note in the First National Bank of Wausau for collection, and delivered the voucher to the bank for McDonald in the event of his paying the note. Thereafter, at McDonald's request the time for paying the note was extended to November 15, 1898. On the 23d day of November, 1898, McDonald died. The note had not been paid. The assurance society had no knowledge of the existence of the note. After the death of the assured the society discovered the existence of the note and caused it to be tendered to plaintiff, the beneficiary under the policy, and a demand to be made upon her for a return of such policy, which demand was refused. All the conditions precedent to a recovery on the policy were performed, if it was in force at the time of McDonald's death, and this action was commenced to enforce payment. It was pleaded as a defense, among other things, that the first premium on the policy was not paid, or payment thereof was waived, and that the policy never went into effect.

The facts above detailed were established on the trial. There was evidence by Harris, and other evidence, tending to show that the policy was delivered to McDonald merely for his examination. The court refused to allow any explanation of the memorandum on the note except as to the meaning of the letters “P. S. L.” and that they stood for the name of the assurance society. Harris explained the circumstance of his taking the note by saying that he wanted “to tie McDonald up.” At the close of the evidence defendant's counsel moved the court to direct a verdict in its favor, which was denied, due exception being taken thereto. The jury rendered a special verdict in substance as follows: The policy was manually delivered by Harris to McDonald November 3, 1898. Such delivery was made with the understanding that the policy should from that time stand as a completed insurance contract. The note was accepted as a payment of the first premium. Harris, on behalf of the society, waived the terms of the policy providing that it should not go into effect until payment of the first premium.

A motion to set aside the verdict and for a new trial was denied and the ruling duly excepted to. Judgment was entered on the verdict.

Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Bump, Kreutzer & Rosenberry, for respondent.

MARSHALL, J. (after stating the facts).

Several assignments of error which are discussed at considerable length in the briefs of counsel do not need attention because of the conclusion we have reached on the main question in the case, that is, whether the note was taken in payment of the first premium upon the policy. We shall discuss that question, assuming for the purpose of it that the policy was delivered to McDonald to be retained by him.

It is conceded that Harris was a general agent of the society, not a mere local agent, and as such had authority, at the time of the delivery of the policy, to bind his principal by an agreement waiving the provision of the policy calling for actual payment of the first premium thereon as a condition precedent to its going into effect, so we need not take time to discuss any question in that regard. The authorities are in substantial harmony in respect to the subject. Joy...