Michigan Mutual Life Insurance Co. v. Thompson

• Decision Date: 17 December 1908
• Docket Number: 6,470
• Citation: 86 N.E. 503,44 Ind.App. 180
• Parties: MICHIGAN MUTUAL LIFE INSURANCE COMPANY v. THOMPSON ET AL., BY NEXT FRIEND
• Court: Indiana Appellate Court

86 N.E. 503

44 Ind.App. 180

MICHIGAN MUTUAL LIFE INSURANCE COMPANY v. THOMPSON ET AL., BY NEXT FRIEND

No. 6,470

Court of Appeals of Indiana

December 17, 1908

Rehearing denied February 25, 1909.

Transfer denied June 24, 1909.

From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.

Action by Clifton Thompson and others, by their next friend, against the Michigan Mutual Life Insurance Company. From a judgment for plaintiffs, defendant appeals.

Reversed.

John E. Iglehart, Edwin Taylor, E. H. Iglehart, George D. Heilman and A. H. Wilkinson, for appellant.

Thomas Van Buskirk, Lane B. Osborn, George K. Denton and Wiley & Jones, for appellees.

OPINION

COMSTOCK, P. J.

Appellees recovered judgment against appellant for $ 1,000, upon a policy of insurance on the life of Lulu Thompson, which policy was made payable to them.

The complaint is in one paragraph, and alleges that, with the exception of Charles Thompson, the appellees are infants, said Charles acting as next friend; that appellant on March --, 1900, issued its policy of insurance upon the life of Lulu Thompson in the sum of $ 1,000, payable to appellees, her children; that the premium was paid thereon, the policy delivered, and that the insured died April 21, 1900; that notice of death was given to appellant, and a request made for blanks for proofs of death, but the liability was denied; that appellees had performed all the conditions required by them to be performed, as had also the decedent in her lifetime; that the payment had been demanded and refused; that appellant had possession of the policy, and appellees were therefore unable to make the same a part of the complaint.

The action of the court in overruling appellant's motion for a new trial is the only error discussed.

The insufficiency of the evidence, the correctness of the verdict, the refusal of the court to give certain instructions requested, the giving of certain instructions on its own motion, and the misconduct of counsel for appellees in the argument to the jury, are reasons set out in said motion.

The validity of the policy depends upon two conditions: (1) Whether the first premium was paid to any agent of appellant authorized to receive it; (2) whether, at the time it was delivered to appellant's agent at Evansville, the insured was in good health.

The policy contained the following provision:

"This policy shall not take effect unless the first premium is paid in cash, or note for extension of time for such payment is accepted by the company at its home office at Detroit, Michigan, nor unless the insured is in good health at the time of its delivery to him."

In the application this condition is thus set out:

"It is hereby agreed that the policy shall not take effect unless the first premium is paid in cash to the company or its authorized agent, or a note for extension of time for such payment is accepted by the company at its home office in Detroit; nor unless the insured is in good health at the time of its delivery."

It appears from the evidence that one Veatch, the local agent of the Washington Life Insurance Company, at Evansville, Indiana, had written an application for Lulu Thompson to said company, which application had been rejected. Thereupon Veatch notified the husband of said Lulu Thompson that said application had been rejected, and told him that he could procure insurance in another company as good as the Washington Life Insurance Company, but that the premium would be a little more, and Thompson said: "Go ahead and get her in any good company." There is evidence (contradicted) to show that Thompson had paid the premium on the application in the Washington Life Insurance Company, and, at the time of making the application in the appellant company, he paid to Veatch the additional amount necessary to make the premium in that company. The money so paid to Veatch was, at the request of said Thompson, repaid to him after the death of his wife--a part of it being repaid by Veatch and a part by the state agent of the Washington Life Insurance Company. Veatch obtained from Tate, appellant's agent at Evansville, a blank application, which was filled out by the applicant, and to which Veatch signed his name, attesting the signature, and delivered the same to Tate, who forwarded it to the state agent at Indianapolis. The policy was issued and returned by mail to Tate at Evansville, and was received by him on April 14, about 4 o'clock in the afternoon, but was never delivered to the applicant. On the same evening, said Lulu Thompson was found to have been bitten by a spider, from the effects of which erysipelas developed, and she died some eight days later. Veatch was not engaged, either on salary or on commission, under said Tate. He had written some fire and accident insurance, for which Tate paid him part of the commission when the premium was paid. Veatch and Tate also exchanged business. The application filled out by Mrs. Thompson was the only application to the Michigan Mutual Life Insurance Company asked for or given to said Veatch.

Whether, upon a given state of facts, a person is or is not an agent of another, is a question for the court. Indiana Ins. Co. v. Hartwell (1890), 123 Ind. 177, 193, 24 N.E. 100; Indiana Ins. Co. v. Hartwell (1885), 100 Ind. 566.

Tate, who resided at Evansville, was the local agent of the Michigan Mutual Life Insurance Company, for Vanderburgh county. He had no authority to appoint another as agent. Mutual Life Ins. Co. v. Reynolds (1906), 81 Ark. 202, 98 S.W. 963; 28 Cent. Dig., § 118, title, Insurance.

Veatch was the agent of the insured in the procurement of said insurance, and in the payment of the premium. Had appellee Thompson paid the first premium, and the application had then been rejected, he could not have collected from the appellant company money paid to Veatch which it had not received, and of which it had no knowledge. Had the appellant received the money, or had knowledge of its payment and acted upon the application, under the authorities cited by appellees it would have made Veatch its agent by ratification.

When Thompson told Veatch to "go ahead and get her in any good company," he made him his representative. When Veatch procured the application in question he was acting under the authority and in behalf of the applicant. He was acting for the Washington Life Insurance Company, of which company he was agent, up to the time of the rejection of the application by that company. Hamblet v. City Ins. Co. (1888), 36 F. 118; Fame Ins. Co. v Mann (1879), 4 Ill.App. 485; American Fire Ins. Co. v. Brooks (1896), 83 Md. 22, 34 A. 373; Duluth Nat. Bank v. Knoxville Fire Ins. Co. (1886), 85 Tenn. 76, 1 S.W. 689; Commonwealth, etc., Ins....