Mutual Life Insurance Company v. Parrish

• Decision Date: 10 June 1899
• Citation: 52 S.W. 438,66 Ark. 612
• Parties: MUTUAL LIFE INSURANCE COMPANY v. PARRISH
• Court: Arkansas Supreme Court

52 S.W. 438

66 Ark. 612

MUTUAL LIFE INSURANCE COMPANY v. PARRISH

Supreme Court of Arkansas

June 10, 1899

Appeal from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

STATEMENT BY THE COURT.

The plaintiff sued on a policy for $ 2,000 upon the life of his deceased wife, bearing date July 24, 1896, alleging that she died October 12, 1896. The policy is exhibited with the complaint, and recites that it is issued "in consideration of the application for this policy, which is hereby made a part of this contract."

The answer set up that the application provided that the contract should not take effect until the first premium on the policy should have been paid during the continuance in good health of the applicant, and that said premium was not paid, nor the policy delivered, during her continuance in good health, nor until she had fallen sick of the malady of which she died.

The case was submitted to the court, sitting as a jury, which found in favor of the plaintiff, and rendered judgment accordingly. Defendant appealed to this court.

On July 24, 1896, Mrs. Parrish, of Waldo, Ark., applied there for a policy of $ 2,000 on her life for the benefit of her husband. The application was forwarded through the state agency at Little Rock, and on the 24th of August the policy was received by the state agency. At the time of the application Mrs. Parrish gave two notes for the first premium, one a "delivery note" payable when the policy was delivered, the other payable on December 1st. The state agent sent the policy and the delivery note to Drake, the soliciting agent. Drake was then in Texas, and sent the policy and note to Dr. Weaver at Waldo for delivery upon payment. Weaver received them about September 1st, and held them, waiting for Mrs. Parrish to take them up. On October 6th Mrs. Parrish went to bed with the illness of which she died. On the evening of the 9th, when her condition was desperate, her step-brother paid the premium, and took the policy. She died on the 12th. The application, which was made a part of the policy, provided that the insurance should not take effect unless the first premium was paid in cash while the assured was in good health.

On the trial Parrish swore that he demanded the policy before his wife fell ill, but that its delivery was refused unless he would pay the full amount of the delivery note, when he had been promised a discount.

After setting out in its motion for a new trial grounds in three several paragraphs, the fourth ground of the motion is as follows:

"4. That the testimony of the plaintiff, who was a witness in the trial of the cause, and testified, in effect, that he offered to pay Dr. J. H. Weaver $ 25 in full of the delivery note, and demanded the policy on or about September 1, 1896, and thereafter, and within a few days, that he offered to pay Dr. Weaver the sum of $ 29.70 the full amount of the note, and demanded a delivery of the same with the policy, and that he at other times offered to pay the amount of the first premium, or such an amount less an agreed discount, to Dr. Weaver, and that the offer was declined prior to the time when the payment was actually made on the 9th or 10th of October, 1896, and at a time when Mrs. Lenora Parrish was in good health,--was an entire surprise to the defendant and its officers and attorneys; that they had never heard of any such offers that, in their correspondence with Dr. Parrish, he had never informed them of any such offer, and that they at the time the trial began in good faith believed that he had never made any offer to pay any amount on account of the first premium until the payment was in fact made, either on the 9th or 10th of October, 1896; that the defendant, its officers and attorneys, had information that the delay in delivering the policy was due entirely to the failure of the plaintiff to raise money to pay the first premium, and that he, on more than one occasion, requested of the local agent, J. W. Drake, and of the local examiner, J. H Weaver, indulgence until he could arrange and get the money to pay the said first premium; that, such being the case, they were not prepared on the trial of the cause to introduce evidence to show that the testimony aforesaid was not true, or to prove that it was true that no offer was made to pay the premium until it was in fact paid, and that the delay was entirely due to the failure of the insured, Mrs. Lenora E. Parrish, and of her husband, Dr. J. C. Parrish, to raise money to pay the first premium, or $ 25 thereon. Defendant alleges that the truth is that no offer was made to pay anything on account of the first premium until the payment was actually made, and it believes that if a new trial is granted it can establish these facts to a jury; that it was not prepared to establish them for the reason aforesaid, that it had never heard, or had any reason to suppose, that a different state of facts would be contended for. The defendant further alleges that J. H. Weaver and J. W. Drake were not at the time of the trial, and had not been, for a number of years, in the employ of the defendant company; that Drake is a non-resident of the state, and Dr. Weaver lives at Waldo, a considerable distance from the place of trial; that, after the defendant learned of the testimony aforesaid, it was entirely impossible for it to have produced either of said witnesses to testify in the cause; that the defendant has learned, since the trial of the cause that it can prove the facts as above set out by it by the said witnesses, Weaver and Drake, and it herewith files an affidavit, duly verified by each of said parties, in support of this motion. It therefore prays that the verdict be set aside, and a new trial awarded."

Attached to the motion were the following affidavits:

"W. E. Hemingway, being sworn, says that he represented the defendant as its attorney in preparing for the trial of this cause; that he never had any information to the effect, or which would warrant him in believing, that any offer to pay the first premium of the policy sued on was ever made until the time when the payment was actually made; that he had no reason to suppose that testimony to such effect would be introduced on the trial of the cause. On the contrary, all information led him to believe, and he in fact did believe, that there would be no such testimony, and that the delay in finally paying the first premium was due to the failure of the insured and of her husband to offer to pay it earlier; that the testimony of Dr. Parrish upon this point was an entire surprise to him, and that he knows no way he could have anticipated it, or that he could have met it; that he believes the facts set forth in the fourth ground in the motion for a new trial are true.

"W. E. HEMINGWAY.

"Subscribed and sworn to before me this 5th day of May, A. D. 1897.

"H. G. DALE, Clerk.

"By J. J. MCEVOY, D. C."

Dr. J. H. Weaver says, upon oath, that he was in August, 1896, a local medical examiner of the Mutual Life Insurance Company, resident at Waldo, Ark.; that on or about August 31, 1896, the local agent of said company, J. W. Drake, delivered to him the note of Mrs. Lenora Parrish for $ 29.70, payable on delivery of the policy on her life, and the policy of the company to be delivered on payment of said note; that he notified Dr. J. C. Parrish that he held the policy and note, and requested him to call and pay the note and receive the policy; that Dr. Parrish, nor any other person for him or Mrs. Parrish, ever offered to pay the note or take the policy until it was done on the 9th or 10th day of October, 1896; that he was ready and willing, from the time the policy and note were received, to deliver the policy on payment of the note, until instructed by Drake to hold policy for payment of second note, and did so the first time payment was offered. It is not true that on the 1st day of September, or any other day prior to that on which the note was paid, Dr. Parrish offered to pay $ 25, and take the note; or that the affiant refused to deliver the policy and accept settlement of the note on payment of $ 25; or the affiant told Dr. Parrish that he could not accept $ 25 in settlement of the note because he did not know what discount Drake had agreed to allow upon it. But affiant says he did know what discount Drake had agreed to give on the note, because he stated, in his letter to affiant forwarding the note and policy, that he had agreed to discount it $ 4.70, and he instructed affiant to take for it $ 25, which was the amount of it less $ 4.70. And affiant says that the delay in paying the note and taking up the policy was due to the failure of Parrish to provide money to pay the amount agreed upon, but agreed to do so in a few days later on. I received a letter of instructions not to deliver until the second note was paid.

J. H. Weaver.

"Sworn and subscribed before me this 3rd day of May, 1897.

B. F. Luce, J. P."

"Waldo, Ark., September 19, 1896.

"Mr. John Drake, Ladonia, Tex.:

"Dear Sir:--I have seen Dr. Parrish. He says only one of his notes is due now. He promised to have done that yesterday, but failed to do so. If you want me to collect both notes, please forward the other one to me, and instruct me what to do. Awaiting your answer, I remain

"Your friend,

J. H. Weaver."

J. W Drake, being duly sworn, on his oath says: "In July, August and September, 1896, I was the local agent of the Mutual Life Insurance Company, of New York, at Buckner, Ark. That the application of Mrs. Lenora Parrish, upon which the policy sued on was written, was taken by him. Sometime in August, 1896, was in Waldo, and Dr. J. C. Parrish asked if I had heard anything from his wife's application. I told him that I had not heard anything, but that...