New York Life Ins. Co. v. McJunkin

Decision Date09 June 1933
Docket Number5 Div. 141.
Citation227 Ala. 228,149 So. 663
PartiesNEW YORK LIFE INS. CO. v. McJUNKIN.
CourtAlabama Supreme Court

Rehearing Denied Sept. 28, 1933.

Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.

Action on a policy of life insurance by Pauline W. McJunkin against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

Pruet &amp Glass and M. P. Kelly, all of Ashland, for appellee.

THOMAS Justice.

The question for decision is whether the policy was delivered or became the contract of insurance. If not, the court was in error in rendering judgment for the plaintiff.

The evidence is in material respects uncontradicted. The policy in evidence purported to insure the life of decedent, and the wife, plaintiff here, was the named beneficiary. That instrument was not in her possession, but was exhibited to the deposition of one of defendant's executive officers. It is in the usual form of such contracts, was of date of March 23d, and taking effect as of the 11th day of March 1931, the stated anniversary date of that policy; the policy and application therefor attached constituted the contract sought to be made or that which was entered into by the parties.

A copy of the application for insurance is attached and contained the following provisions:

"For further plea the defendant saith that on towit, the 11th day of March, 1931, the said Joseph C. McJunkin made written application to the defendant for insurance on his life.
"That application contained certain questions and answers, among which were the following:
"'Question 2. Sum to be insured $2,000.00. Premiums, how payable? Annual. Age nearest Birthday? 33.
"'Question 3. Plan of insurance? 14 year term. Date policy as of: Date of this application.'
"That said application, among other things, also contained the following:
"'It is mutually agreed as follows: 1. That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by any physician since his medical examination; provided, however, that if the applicant, at the time of making his application, pays the agent in cash the full amount of the first premium for the insurance applied for in Questions 2 and 3 and so declares in this application and receives from the agent a receipt therefor on the receipt form which is attached hereto, and if the Company, after medical examination and investigation, shall be satisfied that the applicant was, at the time of making this application, insurable and entitled under the Company's rules and standards to the insurance, on the plan and for the amount applied for in Questions 2 and 3, at the Company's published premium rate, corresponding to the applicant's age, then said insurance shall take effect and be in force under and subject to the provisions of the policy applied for from and after the time this application is made, whether the policy be delivered to and received by the applicant or not. 2. That a receipt on the form attached as a coupon to this application form is the only receipt the agent is authorized to give for any payment made before the delivery of the policy. 3. That only the President, a Vice-President, a Second Vice-President, a Third Vice-President, a Secretary or the Treasurer of the Company can make, modify or discharge contracts, or waive any of the Company's rights or requirements; that notice to or knowledge of the soliciting agent or the Medical Examiner is not notice to or knowledge of the Company, and that neither one of them is authorized to accept risks or to pass upon insurability.'

"And defendant avers that at the time of making said application the said Joseph C. McJunkin did not pay the soliciting agent of the defendant company who solicited said insurance from him, viz., C. S. Chapman, in cash the full amount of the first premium for the insurance applied for in Questions 2 and 3 of said application, and did not so declare in said application and receive from said agent a receipt therefor on the receipt form attached to said application.

"Defendant further avers that said C. S. Chapman was neither the President, a Second Vice-President, a Third Vice-President, a Secretary nor the Treasurer of the defendant company, but was a soliciting agent. Defendant further says that said application was duly received at the defendant's Home Office in the City of New York and on, to-wit, the 23rd day of March, 1931, a policy of insurance of the kind and nature applied for, which contained a part thereof the said application signed by said Joseph C. McJunkin, was written by the defendant and forwarded by it through its Branch Office at Birmingham, Alabama, to the said C. S. Chapman, the said soliciting agent, on or about March 26th, 1931; that prior to said March 26, 1931, the said Joseph C. McJunkin had consulted and been treated by a physician or physicians since his medical examination which accompanied his said application for said policy of insurance, and on said March 26th, 1931, the said Joseph C. McJunkin was ill from pneumonia; that upon receiving information of such illness of said McJunkin, said Chapman returned said policy to the said Branch Office of defendant at Birmingham. And defendant avers that said policy was not delivered to or received by said Joseph C. McJunkin and the first premium thereon paid in full during his lifetime.

"And defendant avers that, other than hereinabove alleged, it had no negotiations with said Joseph C. McJunkin for a contract or policy of insurance on his life by any of its agents thereunto authorized.

"Wherefore, the defendant says it is not liable in this action."

It was upon these issues of fact and that as to the giving of the premium note for $25.16 of date of March 11th, 1931, not on the company's form, but on a form locally printed, that the case was tried and judgment rendered for plaintiff by the court without a jury.

The assured was a minister at Goodwater, and defendant's special agent was a resident of Sylacauga, whose duties consisted of canvassing for applications for insurance, and the performance of such other duties in connection therewith as the officers of said company may in writing expressly require of him, according to the purpose of his agency contract before the court. This contract denied the agent taking the application the authority (1) to "accept risks of any kind"; (2) to "make, modify or discharge contracts"; (3) to "extend the time for paying the premium"; (4) to "bind the company by any statement, promise, or representation"; (5) to "waive forfeitures or any of the company's rights or customary requirements"; or (6) "to receive any moneys due or to become due, * * * except upon application(s) obtained by or through him, and then only in exchange for the coupon receipt attached to the application corresponding in date and number with the application, and in amount not exceeding the first premium" so taken and sold.

The agent, as a witness for defendant, testified: That he solicited the insurance, identified his agency contract and the application for insurance signed by assured, which contained the provisions as set out in plea 2 above; that he sent the application (and the note in question) to the company for approval; that there was a request for additional information regarding applicant's health; that the doctor made a re-examination of the applicant, which was duly reported to the Birmingham branch office; that thereafter he received the billing of the policy informing Chapman that the policy was ready for delivery and collection of premium, subject to the company's rules.

The indorsement or letter of instruction is, in effect, article 17 of "Instruction to Agents," which was in evidence.

That witness (the agent) further testified that he received the policy on March 26, 1931, after he had heard of the illness of the assured, and returned it to defendant's branch office accompanied by a letter conveying information of such illness. The witness testified further: That at the time the application was made assured did not pay any money, but gave witness his note for the cash premium, of date of March 11, and due June 11, 1931; that he forwarded the note to the Birmingham agency; that the note was not upon the company's form; that it was not paid by assured who died before its due date; that third parties sought to pay the same after the illness of assured and before his death, and this was declined; that when assured made the application witness did not give him a receipt indicating cash payment of the first premium, nor did he sign a statement that he had paid in cash.

The testimony of Singleton and Gilliland was of their effort to pay the premium to Chapman after that agent and the other parties knew of the serious illness of assured which culminated in his death before the due date of the note.

The plaintiff testified, in answer to defendant's interrogatories, that her husband was taken ill at noon on March 21, 1931, and lingered until April 3, 1931; and that he had two physicians attending him to the date of his death.

On this disputable evidence the judgment was for plaintiff by the court without a jury, for the amount of the policy, interest, and costs.

In Powell v. Prudential Ins. Co. of America, 153 Ala 611, 619, 45 So. 208, the policy, as here, contained provisions denying the soliciting agent the power to modify or alter the policy or application, or to extend the time, etc., and the only delivery was made by appellant's...

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