Neff v. Metro. Life Ins. Co.
| Decision Date | 07 April 1905 |
| Docket Number | No. 4,885.,4,885. |
| Citation | 73 N.E. 1041,39 Ind.App. 250 |
| Parties | NEFF v. METROPOLITAN LIFE INS. CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; John L. McMaster, Judge.
Action by Matilda Neff against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.
George A. Rose and Joseph Collier, for appellant. Chambers, Pickens, Moores & Davidson, for appellee.
Appellant brought this action against appellee to recover on a policy of life insurance on the life of James H. Neff, her husband. Appellee answered the complaint by general denial, and specially that the policy sued on is not operative, because the premium was not paid or the policy delivered. Appellant replied in general denial. The issue was submitted to a jury, but, as there was no conflict in the testimony, the cause was, by agreement, withdrawn from the jury, and submitted to the court. The court held that the law was with the defendant, and rendered judgment accordingly. The error assigned is the action of the court in overruling the motion of the appellant for a new trial.
The evidence in the case is as follows: One John E. Beil was the brother-in-law of Neff, and was local agent for the appellee at Bluffton, Ind. He had authority to solicit insurance, execute applications, deliver policies, and receive and receipt for the premiums thereon. On a day named he solicited Neff to take out a policy of insurance. Neff declined, assigning as his only reason his inability to pay the premium, and explaining that he would be able to take a policy after the first of the year, when certain funds would be at his disposal. Beil then insisted that Neff had delayed too long, and that the application should be made at once. Thereupon, on November 29, 1901, James H. Neff made a written application to the appellee for a policy of insurance upon his life in the sum of $1,000 in favor of appellant. The application was forwarded to the home office of the company, where it was received December 6, 1901. The policy of insurance, in which the appellant was named as beneficiary, was written and signed at the home office on December 11th, and mailed to the superintendent of the company at Ft. Wayne, Ind. It was received by agent Beil at Bluffton by mail from the superintendent at Ft. Wayne on the morning of December 16th. Neff became sick in the night of December 14th, and died early in the morning of the 15th. The policy did not reach Bluffton until 24 hours after his death. It was not delivered to the beneficiary, was retained by agent Beil in his possession, and nothing was paid upon the premium due under the terms of the policy. At the time the policy was applied for, however, Neff informed Beil, the agent, that he could not pay the premium upon any policy until after July 1, 1902. Beil then told Neff that he would settle with the company, and Neff could repay him later. Beil never paid the premium to the company, and did not account for it in any way. The policy was retained by him for some days after Neff's death, and was then returned to the appellee's superintendent at Ft. Wayne, together with the receipt for the payment.
Appellant claims, first, that the agreement between Neff and the agent of appellee constituted payment to and bound the insurance company. In support of this proposition the following citations are made: Yonge v. Equitable Life Ass'n (C. C.) 30 Fed. 902;Sheldon v. Conn. Mut. L. Ins. Co., 25 Conn. 207, 65 Am. Dec. 565;Bouton v. Am. Mut. L. Ins. Co., 25 Conn. 542;Miss. Life Ins. Co. v. Neyland, 9 Bush (Ky.) 431;Chickering v. Globe, etc., Ins. Co., 116 Mass. 321;Southern Life Ins. Co. v. Booker, 9 Heisk. (Tenn.) 606, 24 Am. Rep. 344;Anderson v. Reserve Fund, etc., Ass'n, 171 Ill. 40, 49 N. E. 205;Home Ins. Co. v. Gillman, 112 Ind. 7, 13 N. E. 118;Terry v. Provident, etc., Ass'n, 13 Ind. App. 1, 41 N. E. 18, 55 Am. St. Rep. 217;Kerlin v. Nat. Acc. Ass'n, 8 Ind. App. 628, 35 N. E. 39, 36 N. E. 156;Taylor v. Merchants' Ins. Co., 9 How. (U. S.) 390, 13 L. Ed. 187;Western, etc., Ass'n v. McAlpin, 23 Ind. App. 220, 55 N. E. 119, 77 Am. St. Rep. 423; May, Ins. §§ 134, 360.
In Yonge v. Equitable Life Ins. Co., supra, a policy of life insurance was issued under a contract with the local agent whereby it was substantially agreed that the agent should pay the first quarter's premium and take the applicant's note for the same. The policy was mailed from the home office July 28, 1885, and received by the local agent August 5, 1885, but was never actually delivered into the possession of the applicant, who was taken ill August 6th and died September 9, 1885. It was held as between the applicant and the company the policy became binding when placed in the mail July 28, 1885; and, if not then, certainly when it reached the hands of the agent, August 5, 1885. It does not appear from the opinion that either the application or the policy contained a stipulation that the policy was to be delivered to the insured “while in health.”
In Sheldon v. Conn., etc., Co., supra, it appeared that following an application of the insured for a policy was a declaration signed by the applicant, but which was not made a part of the policy, stating that he agreed that the insurance proposed should not be binding until the premium, which was payable partly in cash and partly by note, should be received by the defendants or their accredited agent. It was held that parol evidence was admissible for the purpose of showing a waiver of such prepayment; that defendants' agent verbally agreed that the policy of insurance should take effect immediately upon approval of the application, and that the premium note might be made and the cash premium paid at some future time, at the convenience of the parties, provided that such agreement was made to and acquiesced in by the defendants. In such action the plaintiff claimed that the defendants' general agent for procuring applications for insurance had authority to make such agreement, which defendants denied, and the court submitted the question to the jury whether said agent had or had not such authority. It was held that such course was correct. In such action the defendants claimed that it was necessary to the validity of the policy that it should be delivered to the assured, and the court instructed the jury that when an application for insurance had beeen approved and accepted by the defendants, or their proper agents, and a policy had been made and executed, and notice thereof given to the applicant, the contract was complete, and the applicant entitled to the policy. It was held that such instruction furnished no ground for a new trial. See page 219 of the opinion, 25 Conn., 65 Am. Dec. 565.
In Bouton v. American Mutual Life Ins. Co., supra, it is held that an agreement made in good faith between an insurance agent having authority to receive an insurance premium and the insured that the agent shall become personally responsible to his principals for the amount of such premium, and the insured his personal debtor therefor, constitutes a payment of the premium as between the assured and the insurance company.
In Miss. Valley Life Ins. Co. v. Neyland, supra, it was held that a general agent of an insurance company, whose business it is to solicit applications for insurance and receive the first premiums, has the right to waive the payment in money, and in lieu thereof take a promissory note, or undertake to make the payment himself, notwithstanding a recital in the policy that it shall not be binding until the cash part of the first premium is actually paid in money.
In Chickering v. Globe, etc., Ins. Co., supra, a policy issued contained a provision that, if the premium should not be paid on or before the days when due at the office of the company or to its agents when they producedreceipts signed by an officer of the company, the policy should cease. On the issue whether a premium due on a certain day had been paid to an agent of the company there was evidence that the agent was authorized to collect premiums, and, after taking his commissions, to invest the remainder in certified checks, which were to be sent with his account to the company at regular periods; that a few days before the premium became due the agent was indebted to the firm of which A., the insured, was a member, to an amount exceeding the premium; that it was a practice of the firm to pay their private debts with funds of the firm, and A.'s premiums had previously been so paid; that the agent stated to A. that he would take care of the premium, and after the day when it became due stated to him that he had done so; that the agent had received the receipt signed by an officer of the company, and had so informed A., but retained it as a voucher against A.; that the agent sent the company, after the death of A., a check for the amount, including this premium, with his account; and the company refused to receive it, and returned him a check for the amount of the premium, and demanded the receipt. It was held that the evidence was sufficient to warrant the jury in finding that funds which the assured had a right to control and apply to the payment of the premium had come into the hands of the company's agent before the premium became due, that the assured directed that the agent should apply so much of such funds as was necessary to that payment, and that the agent did so apply, and that the jury would be warranted in finding a verdict for the plaintiff.
In Southern Life Ins. Co. v. Booker, supra, it is held that a general agent, in the absence of special instructions, may waive cash payment, and deliver a policy, and the delivery, if unconditional and without fraud, will bind the company; that an agent, who, acting under general instructions, has charge of a company's affairs, and is authorized to deliver policies and receive premiums without instructions limiting his...
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