Mutual Life Ins. Co. v. Lucas
| Citation | 79 S.W. 279 |
| Parties | MUTUAL LIFE INS. CO. OF NEW YORK v. LUCAS. |
| Decision Date | 18 March 1904 |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Woodford County.
"Not to be officially reported."
Action by Mary E. Lucas against the Mutual Life Insurance Company of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Grubbs & Grubbs and Field McLeod, for appellant.
W. O Davis and B. G. Williams, for appellee.
On the 22d day of May, 1903, William P. Lucas, of Midway, applied on one of appellant's printed blanks, through its local agent, C. W. Parrish, for a policy of insurance on his life for $1,000, payable at his death to the appellee, Mary E Lucas. The application contained this provision: "I hereby agree that all the following statements and answers and all those I make to the company's medical examiners in continuation of this application, are by me warranted to be true, and are offered to the Company as consideration of the contract, which I hereby agree to accept, and which shall not take effect until the first premium shall have been paid during my continuance in good health, and the policy shall have been signed by the Secretary of the Company and issued." This application was forwarded to the home office of the company, and about the 1st day of June a policy issued in conformity to the application reached the hands of the local soliciting agent, Parrish, to be delivered to the applicant upon the payment by him of the first annual premium, of $38.56. Before the delivery of this policy, or the payment of the first premium due thereon, the insured Lucas, was killed, on the 15th of June, 1903. Thereupon the policy was, at the request of the company, returned to them by Parrish, the local agent, and canceled. Subsequently the appellee, Mary E. Lucas, offered to pay the premium, made the usual proofs of the death of the insured, and, upon appellant's failure to pay, instituted this suit for the recovery of the amount of the policy, and alleged, by way of avoidance of the provision of the policy "that it should not take effect until the first premium had been paid during the continuance in good health," that at the time the contract was entered into between the insured and C. W. Parrish, acting for the company, it was agreed that the first premium, of $38.56, should be paid on the 1st of July, 1903, but that the insurance should take effect and be in force from the 22d day of May, 1903, and that the policy was issued by the defendant in accordance with this agreement, and dated on the 22d of May, 1903, the day on which the application was made, and the agreement made with the local agent, and that the policy was issued pursuant to this agreement, and transmitted to Parrish for delivery to the insured. Demurrer was filed to this petition, which was overruled. Thereupon an answer was filed to this petition, which denied the alleged agreement with Parrish, and relied upon the conditions of the policy hereinbefore recited, and further alleged that C. W. Parrish was a mere soliciting agent, and had no authority to waive the conditions as to the payment of the first premium and the delivery of the policy during the continuance in good health of the insured. The issues were made up by reply, traversing the affirmative allegations of the...
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