Mutual Reserve Fund Life Association v. Farmer

• Decision Date: 05 November 1898
• Citation: 47 S.W. 850,65 Ark. 581
• Parties: MUTUAL RESERVE FUND LIFE ASSOCIATION v. FARMER
• Court: Arkansas Supreme Court

47 S.W. 850

65 Ark. 581

MUTUAL RESERVE FUND LIFE ASSOCIATION v. FARMER

Supreme Court of Arkansas

November 5, 1898

Appeal from Garland Circuit Court ALEXANDER M. DUFFIE, Judge.

Judgement affirmed.

Jas. A Gray and Rose, Hemingway & Rose, for appellants.

There was no evidence to support the verdict. The evidence shows that the insured knew of, and made no objection to, the answers written by Ellsworth. If this were not true, the insured ought to have read over the application, and he can not urge that reason to avoid the agreements therein. 58 Ark 281; 117 U.S. 519; 62 Ark. 47. By making Ellsworth his agent in answering these questions, insured bound himself by his answers. 53 Ark. 222; May, Ins. 122; 70 N.W. 86. These answers and statements in the aplication are binding on the applicant, and their falsity avoids the policy. 91 U.S. 50; 90 Va. 290; 18 S.E. 191; 58 Ark. 528; 18 S.Ct. 300; 120 U.S 183; 60 F. 727; 58 F. 940; 132 N.Y. 331; 74 Hun, 385. The effect or failure to disclose required facts is the same as misstating them. May, Ins. § 201-4; Bliss, Life Ins. § 52. The first premium was not paid in cash, and hence the policy never attached. 102 U.S. 211. The insured never accepted the policy, and hence the contract is not binding on either party. 23 Wall. 85; 92 U.S. 377; 32 N.Y. 619; 71 Hun, 104; 51 F. 689; 28 id 705; 30 id. 545; 53 id. 208; 26 A. 78; 30 Nev.App. 589; 6 Bush. 450; 18 W.Va. 782; 18 Minn. 448; 17 id. 153; 98 Mass. 539; S. C. 103 Mass. 78; 13 B. Mon. 400; 27 Pa.St. 268; 40 Mo. 42; 32 Md. 108; 4 Allen, 116; 15 So. 639; 4 Ark. 251; 11 id. 689; 17 id. 78; May, Ins. § 53; 1 Biddle, Ins. § 140; 35 P. 736; 32 Ark. 399; 1 McCrary, 578. It was error to give the fourth instruction asked by appellee. 6 C. B. (N. S.) 437; 2 Kent, 557; 2 Whart. Const. § 657. The contract was wholly in writing, and hence its construction was for the court. 20 Ark. 583.

Wood & Henderson, for appellee.

The policy was delivered to the assured in his lifetime, and while he was in good health. The contract was complete when the acceptance was mailed. 57 N.W. 184; 40 N.J.L. 476; 43 N. L. L. 300; 9 How. 390; 28 N.Y.S. 794; 122 N.Y. 244; 5 F. 229; 30 F. 902; 47 F. 869; 29 N.J.L. 486; 6 Wend. 103; Bacon, Ben. & Life Ins. § 266, et seq. The evidence is sufficient to support the finding that the first payment was made as required. Appellee made out a prima facie case of payment by showing the unconditional delivery of the policy. 31 F. 332; 12 Wall. 285; 24 Am. Rep. 344; May, Ins. §§ 56-60, 359-360-360a, 360b, 360d; 17 Minn 153; 35 N.E. 193; Bacon, Ben. Soc. & Life Ins. § 276, 277; 40 Ill.App. 266; 36 P. 113; 23 P. 869; 22 F. 586; 20 F. 232! 42 N.E. 137; 20 Wall. 560. The failure of appellant to prove the non-existence of this fact, by the only witness who really knew the truth of the matter, must be construed as indicating the existence of the fact. 4 How. 242; 32 Mich. 394; 8 Porter (Ala.), 529; 27 W.Va. 16; 48 Mich. 465; 64 Pa.St. 120; 19 Am. & Eng. Enc. Law, 70, et seq.; Whart. Ev. § 1267; 7 Wend. 31, 33, 36; 10 Pick. 329; 8 Wheat. 407; 1 Greenl. Ev. § 51 and note. Appellant's actions after notice of death were such as to estop it to allege the non-payment, if such were the fact. 22 A. 665; 80 N.Y. 108; 15 N.W. 453; A. 2; 53 Ark. 494; 96 U.S. 577; 41 F. 512; 95 U.S. 326. The evidence shows that there was no breach of warranty by failure of assured to fully and truly answer questions in application. There is nothing in the answers of the assured, taken as they were when he signed the application, which was untrue, or constituted a breach of warranty. 1 Bac. Ben. Soc. & Life Ins., §§ 204, 205, 205a; 6 Gray, 185; 24 Ohio 345; 14 N.Y. 8; 59 N.Y. 557; 17 Am. St. Rep. 372; 120 U.S. 183; 43 N.J.L. 300; 21 Ohio 176 106 Pa.St. 28; 40 N.W. 386; 69 N.Y. 256; 25 Am. St. Rep. 182; 14 Otto, 199! 60 F. 236; 80 N.Y. 281; 36 Am. Rep. 617. Since the appellant placed it in the power of the agent to do a wrong, it must bear the consequences. 42 F. 30; 26 N.E. 1082; 35 N.W. 430; 28 N.W. 47; 43 N.W. 373; 40 N.W. 386; 22 N.E. 954; 14 N.E. 271; 12 N.E. 609; 25 A. 227; 64 Ark. 257. The solicitor and examining physician were the agents of the company, and not of the insured, in the preparation and forwarding of the application. 18 P. 291; 8 P. 112; 53 Ark. 222; 53 Ark. 497; 52 Ark. 11; 11 L. R. A. 341, and cases in note; 5 Cent. Rep. 211; 7 Western Rep. 90; 17 Hun, 95; 55 Miss. 479; 2 Hughes (U. S.), 531; 18 Blatchf. 386; 56 Ill. 402; 90 ib. 445; 93 ib. 96; 110 ib. 166; 109 Ma. St. 157; ib. 507; 69 Tex. 353; 43 N.J.L. 300; 39 Am. Rep. 584; 25 W.Va. 622; 8 S.E. 616; 13 Wall. 222; 21 Wall. 152; Bacon, Ben. Soc. & Life Ins. § 221, and cases in note 3; 21 P. 233; 28 N.W. 607; 12 F. 465; 14 F. 272; 58 F. 723. The fact that appellant had taken an overdose of chloroform, and had been treated and attended by a physician for same, does not constitute a breach of the warranties. 14. Otto, 197; 58 F. 945; 7 C. C. A. 581; 45 F. 455; 1 Central Rep. 134; S. C. 1. A. 340; 17 Wall. 672; 32 N.W. 610; 41 F. 506; 112 U.S. 250; 33 N.E. 107; 92 N.Y. 274; 44 Am. Rep. 372; 53 Ga. 535; 12 Western Rep. 715; 3 Cent. L. J. 302; 58 Hun, 366; Bacon, Ben. Soc. & Life Ins. §§ 234, 235, 199. The company is estopped to set lip a defense based on the wrongful act of its own agent. 16. N. W. 430; 59 N.W. 247; 59 N.W. 943; 43 N.W. 373; 50 Pa.St. 331; 89 Pa.St. 464; 76 N.Y. 415! 62 Md. 196; 1 Const. 290; 12 F. 465. See further as to estopped and waiver:--41 N.W. 601; 16 A. 263; 51 Md. 512; 31 Am. 323; 41 Am. Rep. 647; 9 S.W. 720; 69 F. 71.

Jas A. Gray and Rose, Hemingway & Rose, for appellant, in reply.

Mailing of the policy did not make it operative, because payment of the first premium was a condition precedent to the binding effect of the contract. Benj. Sales, § 320; 1 Biddle, Ins. § 151; 28 F. 705; 30 id. 545.

BUNN C. J., BATTLE, J., dissenting.

OPINION

BUNN, C. J.

This is a suit to recover on a policy of life insurance, and the defenses are several, and the first in order is that the policy, notwithstanding its delivery, under an expressed stipulation contained in the application for it, never in fact became operative. The stipulation referred to is in these words: "That under no circumstances shall the insurance hereby applied for be in force until payment in cash of the first payment, and delivery of the policy to the applicant during his life and in good health."

The evidence in the case tended to show that the policy was placed in the mail at Hope, properly addressed to the insured at Hot Springs, early in the morning of the day in the afternoon of which the insured was taken with his last illness, and that in due course it should have reached him before he was taken sick; and the court appears to have so found, and to have determined accordingly. This, of course, involves also the question whether or not the placing of a writing in the mail, properly addressed, with postage prepaid, as in this instance, is a delivery as a general rule, as the trial court held. As to this, we see no error, and the question is at last, does this case come under the general rule as to that particular? Or, in other words, was the first payment made before delivery, under special stipulations referred to above, so as to make the policy operative before the last sickness and death of the insured? All the other material issues in this case involve the breaches of special warranties. This one does not, but is a mere stipulation as to what shall not be a delivery so as to make the contract of insurance complete and effective.

The policy itself contains this recital: "In consideration of the answers, statements and agreements contained in the application for the policy of insurance, which are hereby made a part of this contract, and of the payment of eighty dollars, as a first payment to be paid on or before the delivery of this policy, and the further payment of thirty dollars payable to the association within sixty (60) days from the date of this policy, for the general expense fund of the association, the Mutual Relief Fund Life Association does hereby receive Lucien Farmer, of Hot Springs, County of Garland, State of Arkansas, as a member of said association," etc.

Other than the presumption that may arise from this recital, taken in connection with the mailing of the policy and the receipt of the same by the family of the insured, if not by himself, there was absolutely no evidence of this first payment having been made at all, adduced on the trial. There is this to be said also that, besides Hartin, the agent who solicited for the insurance, and mailed the policy to the insured, and did all necessary things connected with insurance, there was no one living who could testify as to this payment, since the officials of the company did not necessarily know whether or not it had been made; nor could the beneficiary, Mrs. Farmer. When Hartin was on the stand testifying, neither party asked him as to this payment, and he said nothing in reference thereto. Each party seems to have been afraid of any answer on the subject he might make, and so the matter was left, each one claiming the benefit of the presumption that arises under such a state of things.

To guide the jury in concluding upon the evidence on this point, at the instance of the defendant company, the court gave the following instruction, which was in no way modified or affected by any other, to-wit:

"14. The possession of the policy by Farmer before his death is prima facie evidence that the first premium was paid, but it may still be shown that in point of fact it was not paid. The question for you to decide is whether the first premium was paid by Farmer while in good health; and in passing on this point you will fairly and impartially consider all...