Mutual Life Ins. Co. of New York v. Vaughan

• Decision Date: 18 April 1921
• Docket Number: 21263
• Citation: 88 So. 11,125 Miss. 369
• Court: Mississippi Supreme Court
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. VAUGHAN

88 So. 11

125 Miss. 369

MUTUAL LIFE INS. CO. OF NEW YORK v. VAUGHAN

No. 21263

Supreme Court of Mississippi

April 18, 1921

1 INSURANCE. Delivery of policy by agent in violation of instructions to secure medical certificates held act of insurer.

Where an insurance company executed a policy and sent it to an agent in this state to be delivered when the insured furnished a health certificate by one of its examining physicians, but no such provisions were in the policy, but in a letter of instructions, and the agent delivered the policy without complying with the instructions, the delivery by the agent is the act of the company, under section 2615, Code 1906 (section 5078, Hemingway's Code), and the policy is valid in the hands of the insured or his beneficiary, though no health certificate was furnished the agent or the company.

2 INSURANCE. Insurer's liability depends on good health in fact where agent delivers policy without medical certificate violation of rule by agent requiring medical certificate held not to invalidate policy.

In such case where the policy stipulates that the policy should not be in effect unless the insured was in good health when the policy was delivered to and accepted by the insured, the question of liability depends upon the fact of good health and if the insured was in fact in good health when it was delivered, it is not avoided because the company had a rule for the government of its agents that it should not be delivered without a medical examination by its examining physical, where more than sixty days had elapsed from the first examination, where such rule was not brought to the knowledge of the insured.

3 INSURANCE. Acknowledgment of receipt of premium in policy held conclusive against insurer in favor of beneficiary.

Where an insurance policy recited on its face, "In consideration of the annual premium of Fifty and 10/100 dollars, the receipt of which is hereby acknowledged," such recital is more than a mere receipt; it is contractual, and is conclusive against the company in favor of the beneficiary so far as liability depends upon payment of the premium is concerned. It does not prevent the company from holding the insurer liable for the payment of the premium. The rule is that, as between the insured and the insurer for the purpose of collecting the premium, it is not conclusive but only prima-facie evidence of payment; but as between the beneficiary and the insurer it is conclusive, being contractual.

4. TRIAL. Instructions must be considered as a whole.

The instructions given by the trial court in a jury trial are to be taken and considered as a whole, one as supplementing or modifying another, and if when so construed they present the law fully and fairly, the court will not reverse for the giving of a single instruction for one party, though it may not be free from criticism.

HON. THOS. L. LAMB, Judge.

APPEAL from circuit court of Montgomery county, HON. THOS. L. LAMB, Judge.

Action by Mrs. Margaret B. Vaughan against Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Fulton Thompson, J. Harvey Thompson and Robert H. Thompson, for appellants.

It is lawful for an insurance company to stipulate in any contract executed in its behalf that the provisions therefor cannot be waived by notice or representation unless given to or made by one of its principal officers. This applies in the case at bar especially:

(a) To the contractual terms of the application and the terms of the alleged policy providing that no agent or other person except the president, vice-president, a second vice president, a secretary or the treasurer of defendant company has power on behalf of the company to make, modify or discharge any contract of insurance to extend the time for paying a premium, to waive any lapse or forfeiture or any of the company's rights or requirements so as to bind the company by making any promise respecting any benefits under any policy or by accepting any representations or information. And it applies with full force.

(b) To the contractual terms of the application reading: "The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health and unless also the policy shall have been delivered to and received by me during my continuance in good health, with an exception negatived by the application as well as by uncontradicted testimony.

The authorities supporting our first above stated proposition are numerous, and we cite only a few of them. New York Life Insurance Co. v. O'Dom, 100 Miss. 219; S. C. 56 So. 379; Odd Fellows, etc., Association v. Smith, 101 Miss. 332; S. C. 58 So. 100; Truly v. Mutual Life Ins. Co. of New York, 108 Miss. 453; S. C. 66 So. 970; Paine v. Pacific Mutual Life Ins Co. (Eighth Circuit), 51 F. 689; S. C. 2 C. C. A. 459; Powell v. Prudential Ins. Co. (Ala.), 45 So. 208; Reese v. Fidelity Mutual Life Association, 111 Ga. 82, S. C. 36 S.E. 637.

There was no payment of the initial premium in this case. The offer by Feazell to extend time for the payment of the premium contained in the letter to Vaughan (the one he claims to have sent with the alleged policy and the reception of which by Vaughan is denied in a way by plaintiff) did not (aside from the requirement of a new health certificate) put the alleged policy in force. Under policies like the alleged one in this case an insurance solicitor unauthorized to grant an extention of time for the payment of a premium, who takes the note of the proposed insured for the premium does not thereby put the policy in force although he makes an actual delivery of it. Therefore, of course a verbal or written offer to extend the time for the payment of the premium without taking a note for it, accompanied by a conditional delivery requiring a health certificate is wholly ineffectual to put the policy in effect. Batson v. Fidelity Mutual Life Ins. Co., 155 Ala. 265; S. C. So. 578; S. C. 130 Am. St. Rep. 21; Powell v. Prudential Insurance Co. (Ala.), 45 So. 208; Russell v. Prudential Life Ins. Co., 176 N.Y. 178; S. C. 98 Am. St. Rep. 656; Cable v. United States Life Ins. Co. (Seventh Circuit). 111 F. 19; Ormand v. Mutual Life Association, 96 N.C. 158; S. C. 1 S.E. 796.

Note that in the Alabama case, Batson v. Fidelity, etc. Co., supra, the policy was offered in evidence and as well, the receipt of the solicitor of first premium, and yet the court held the peremptory charge asked by the insurance company should have been given, because the non-payment of the premium was established by testimony uncontradicted save by the recitals in the policy and the solicitor's receipt, these being insufficient to justify a refusal of the charge. In the case at bar no witness denied the testimony showing that the premium was unpaid and plaintiff's case stood alone on the recital in the, as we claim, undelivered policy, certainly not unconditionally delivered.

An applicant to an insurance company for insurance on his life is charged with notice of the contents of his written application which, by the terms of the policy (as in the case at bar) is made a part thereof; and if the application provides that the policy shall not be in force until the first premium is paid, the legal result is that the insured covenants, with the company directly and not through its agents, that the policy shall not be binding until such payment is made. Russell v. Prudential Insurance Co., 176 N.Y. 178; S. C. 98 Am. St. Rep. 656; Ormond v. Mutual Life Association (N. C.), 1 S.E. 796. The case of Whipple v. Prudential, etc. , Insurance Co., 222 N.Y. 39, has no application to the case at bar, because defendant's manager (Dowdle) did nothing whatever that can be construed as a waiver of a new certificate of health and there is no pretence that he waived anything.

McLean & Rowe, for appellee.

The trial court committed no error in submitting the case to the jury, because of the obvious conflict of the testimony. It is the well settled rule in our state that all cases should be submitted to the jury, if there be conflict in the evidence, or if the facts be undisputed, and reasonable men may draw different conclusions therefrom. Trautman v. L. M. R. R. Co., 95 Miss. 183; N. O. M. & C. R. R. Co. v. Ann Cole, 101 Miss. 173; Landrum v. Y. & M. V. R. R. Co., 89 Miss. 388; N. O. & N.E. R. R. Co. v. Brooks, 85 Miss. 269; Christian v. R. R. Co., 71 Miss. 237; Nesbit v. City of Greenville, 69 Miss. 452; R. R. Co. v. Turner, 71 Miss. 402; Southern Ry Co. v. Floyd, 55 So. 288; Abernathe v. M. J. & K. C. R. R. Co., 97 Miss. 859; Stephens v. R. R. Co., 81 Miss. 206; Bell v. R. Co., 87 Miss. 234.

This court, in the case of Sovereign Camp Woodmen of the World v. Wedgeworth, 75 So. 565, decided June 11, 1917, affirmed a judgment of a jury in a per curiam opinion, and upon examination of the record in that case, we find that the question of the payment of dues for three months on the part of the insured was submitted by the trial court to the jury.

The case at bar is identical. The policy sued upon acknowledges receipt of the initial premium due thereon, and was introduced in evidence. The appellant claimed the premium was not paid. The court submitted the case to the jury, and the jury found in favor of the plaintiff. All we ask is that the court shall affirm this verdict upon the same ground as in the Wedgeworth case, supra, the number thereof being 19274 upon the Docket of this court.

Counsel for appellant strongly rely upon the case of Batson v Fidelity Mutual Life Ins. Co., 155 Ala. 265, 130 A. S. R. 31, as authority for the argument that the non-payment of the premium, being established by the testimony...