Missouri State Life Ins. Co. v. Boles

• Decision Date: 11 November 1926
• Docket Number: (No. 1917.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 288 S.W. 271
• Parties: MISSOURI STATE LIFE INS. CO. v. BOLES.
• Court: Texas Court of Appeals

288 S.W. 271

MISSOURI STATE LIFE INS. CO. v. BOLES.

(No. 1917.)^*

Court of Civil Appeals of Texas. El Paso.

November 11, 1926.

Rehearing Denied November 24, 1926.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by Mrs. Emma Viola Boles against the Missouri State Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Funderburk & Richardson, of Eastland, for appellant.

Grisham Bros., of Eastland, for appellee.

HIGGINS, J.

This is a suit by Mrs. Boles, the appellee, against the appellant to recover upon an alleged insurance policy upon the life of her husband, George Boles. Upon trial without jury Mrs. Boles recovered judgment, and the defendant appeals.

The petition is in two counts. In the first count it was alleged that the defendant, acting by its authorized agent, H. B. Goldthwaite, on June 27, 1924, entered into an oral contract of insurance upon the life of George Boles effective from that date, and that the insured died August 10, 1924.

The second count was in the alternative, and alleged a contract partly oral and partly in writing. It was alleged that the oral part was that set up in the first count, and in addition thereto it was agreed between Geo. Boles and Goldthwaite that the former would sign an application and deliver same to defendant through Goldthwaite, and agreed to submit to a physical examination, which was done and the application, examiner's report, and first premium sent to defendant's main office, and was by the home office accepted and approved, but before the policy was delivered the assured died.

So far as concerns the oral contract declared upon in the first count, the judgment cannot be sustained thereunder, for the evidence is insufficient to show that the agent, Goldthwaite, undertook to make a contract of that nature; and, if upon any theory of the evidence it could be held that he did undertake so to do, then there is a complete want of evidence to show his authority to make same. He was a mere soliciting agent, and such an agent has no implied authority to consummate a contract of insurance. 32 C. J. 1066. The burden rested upon appellee to show the agent's authority to make the contract declared upon. Baker & Co. v. Kellett-Chatham Mach. Co. (Tex. Civ. App.) 84 S. W. 661, and other cases cited in 14 Mich. Dig. 49. It is but the application of the general rule of law that one relying upon a contract made by one assuming to act as the agent of another must show that the contract was within the express or implied authority of the agent to make.

Under our statute (article 2010, R. S. 1925) this rule, of course, has no application to an action based upon a written contract charged to have been executed by the defendant or by his authority, unless the issue is raised by verified plea.

Again, the oral contract, if established at all, was materially different from the contract alleged, not only as to the date it became effective, but upon a contingency not alleged. It was alleged the insurance became effective on June 27, 1924, whereas the contract proven, if any, was not effective until the medical examination was made on August 6, 1924. The contract alleged was unconditional, whereas the evidence disclosed it was conditional upon a medical examination. This variance was fatal. Western Union Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; Gammage v. Alexander, 14 Tex. 418; Padgitt v. Dorsey (Tex. Civ. App.) 194 S. W. 1124.

Adverting further to the alleged oral contract, it is essential that the minds of the parties should have met on all the terms of the contract, and such a contract is not completed where the conversation is a mere negotiation which results in a party submitting an application in writing, which, upon its face, shows it is a mere proposal for insurance. In such cases the oral conversations and negotiations are merged in, and extinguished by, the written application.

Passing to the second count, the undisputed evidence shows that Boles made a written application for insurance dated June 27, 1924, addressed to appellant at St. Louis, Mo., and delivered same to Goldthwaite, who, in turn, delivered same to appellant's district agent, Behrens, at Abilene, Tex., who forwarded same to appellant's home office at St. Louis, Mo., where it arrived July 5, 1924.

When the application was received, Goldthwaite gave the following receipt:

"Advance Premium Receipt.

"Received of Geo. H. Boles the sum of $49.00, note No. 818692, the first annual premium on proposed insurance for $2,000, on the life of George H. Boles for which an application bearing a corresponding number, as above, is this day made to the Missouri State Life Insurance Company, Saint Louis, Mo. Insurance subject to the terms and conditions of the policy contract issued shall take effect as of the date of approval of above application by the company. Otherwise the payment evidenced by this receipt shall be returned.

"Dated at Frankell, June 27, 1924.

                            "H. B. Goldthwaite, Agent."
                

The evidence shows that, when the receipt was given, Boles intended to give a check for the $49, but the parties did not have a blank, whereupon Boles remarked he would "go up to the house and get one," but just at that time he was called away by the duties of his employment, and departed without paying the $49, whereupon the agent wrote the word "note" in the receipt as it appears. No note was given, and Goldthwaite stated he treated the matter as a cash transaction because he knew he could collect from Boles at any time. When Behrens sent the application to the home office, he remitted the appellant's share of the first premium.

The medical examination was made on August 6, 1924, and reached the home office of appellant Saturday a. m., August 9th. The application for insurance then proceeded in the regular routine of the office for final examination, consideration, and action.

The undisputed evidence shows that it had not been approved and accepted at the home office at the time appellant died on Sunday, August 10, 1924, but on August 12th it was practically ready for final action and acceptance, when appellant was advised of Boles' previous...