New York Life Insurance Company v. Mason
| Decision Date | 19 December 1921 |
| Docket Number | 49 |
| Citation | 235 S.W. 422,151 Ark. 135 |
| Parties | NEW YORK LIFE INSURANCE COMPANY v. MASON |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; R. H Dudley, Judge; reversed.
Judgment reversed and cause dismissed.
Ewing King & Ewing, and Little, Buck & Lasley, for appellant.
The court erred in refusing to instruct that Sunday contracts are void unless subsequently ratified. 29 Ark. 387; 106 Ark. 568.
The court also erred in refusing to charge that the retention of the policy by appellant's agent on Monday would not be a ratification of a Sunday contract, and in giving an instruction to the contrary.
Davis Costen & Harrison, for appellee.
The premium was paid. 94 Ark. 578. The mailing of the policy of insurance to its agent Humphries constituted a delivery. 97 Ark. 229; 129 Ark. 137; 116 Ala. 659; 67 Am. St. Repts. 154; 42 L. R. A. 88; 101 F. 33. The mailing of an insurance policy to the insured, although to the wrong address, constitutes a delivery. 97 Ark. 229. Actual manual delivery is not necessary. 222 S.W. 1064; 14 R. C. L. 898; 111 Ark. 173; 163 S.W. 1188; 129 Ark. 137; 116 Ala. 659; 67 Am. St. Repts. 154; 42 L. R. A. 88; 101 F. 33; 21 Ky. L. Rep. 717; 52 S.W. 959; 68 S.C. 387; 47 S.E. 681.
Contract not void because made on Sunday. 37 Cyc. 552; 61 Ark. 216.
Contracts made on Sunday may be ratified on a secular day. 106 Ark. 568; 85 Ark. 471; 44 Ark. 74.
The contract, although made on Sunday, was not pleaded as a defense. 81 Hun 178; 30 N.Y.S. 697; 2 Standard Ency. of Procedure, 37; 73 Ark. 221; 28 Ark. 502; 104 Ark. 79; C. & M. Dig., sec. 1194; 68 Iowa 526; 27 N.W. 507.
This is an action instituted to recover on a life insurance policy alleged to have been issued by defendant, New York Life Insurance Company, insuring the life of Frank B. Mason in the sum of $ 5,000, and for double that amount if death should result directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause. The policy is alleged to have been made payable to Ruth Mason, wife of the assured, and the suit was brought in her name. She recovered judgment below, and since the appeal was prosecuted to this court she died and the cause has been revived in the name of the special administrator.
The policy of insurance, at the time of the commencement of the action, was not in possession of the plaintiff and was in possession of the defendant, but it was alleged in the complaint that the policy had been duly executed and put into force, and there was a prayer in the complaint that the defendant and its agents be required to file the original application and policy and all correspondence and papers relating thereto. Interrogatories appended to the complaint related to the alleged issuance of the policy, the date thereof, to whom forwarded, etc. The defense, among others, is that there was never any valid delivery of the policy so as to put it into force and effect.
The defendant introduced no testimony at the trial of the cause, but the interrogatories answered pursuant to the demand in the complaint, and the papers filed therewith, were introduced in evidence by the plaintiff.
It appears that the application for the insurance was made by Frank B. Mason on December 7, 1918, to W. J. Humphries, one of the defendant's soliciting agents. The application was made at Blytheville, where Humphries was soliciting insurance and where Mason resided, and the medical examination was made on the same day and was forwarded through the Memphis office, under which Humphries was operating, and was received at the home office on December 16, 1918. The application signed by Mason contained a stipulation that the insurance should not take effect "unless the first premium is paid and the policy is delivered to me and received by me during my life time and in good health." The policy was duly written up, signed and countersigned at the 'home office and forwarded to the Memphis office for delivery, and was mailed out from the Memphis office to agent Humphries at Blytheville on Saturday, December 21, 1918. Mason was shot and killed at his farm, about 6 miles distant from Blytheville, at or about 9 o'clock Monday morning, December 23. The correspondence introduced in evidence by the plaintiff shows that Humphries immediately returned the policy and reported it as undelivered.
The contention of plaintiff in the trial of the cause was that the policy was delivered on Sunday afternoon, December 22, 1918, and testimony was introduced to prove circumstances which tended to establish her claim that there was a delivery made at that time. A witness was introduced who testified that Mason was out at his farm in a car Sunday afternoon, and that witness came back to town with him, and they met a man on the streets who approached Mason in relation to the delivery of an insurance policy, and that Mason told the man to keep it for him, as he was in a hurry at that time.
Conceding, without discussing the evidence at length, that it was sufficient to show that Humphries on the Sunday afternoon mentioned, tendered the policy to Mason, and that Mason accepted the policy but left it, for his own convenience, in the possession of Humphries, constituting the latter his agent so as to make a constructive delivery, the question in the case remains whether or not the delivery of the policy on Sunday put the insurance into force and whether the delivery, if not valid on that day, was subsequently ratified. There was no claim, or effort to prove, that there was a delivery of the policy at any other time or under any other circumstances than as specified above.
The court instructed the jury that the delivery of the policy on Sunday did not constitute a valid delivery so as to put the contract of insurance into force unless it was found that "thereafter, and on some day other than Sunday, the said Humphries held the policy in pursuance of the agreement, if any, with Mason for him and for his use and benefit."
It is contended by counsel for plaintiff that the mailing of the policy from the Memphis office to Humphries constituted a constructive delivery and put the policy into force without an actual delivery to the insured in person. This would be true if the policy was mailed to Humphries unconditionally for the sole purpose of delivery to the assured, but such is not the effect of the transaction if the policy was mailed to the agent of the insurer for the performance of specified duties in making the delivery of the policy. National Life Assn. v. Speer, 111 Ark. 173, 163 S.W. 1188; Missouri State Life Ins. Co. v. Burton, 129 Ark. 137, 195 S.W. 371.
There is no evidence to show that the policy was mailed to...
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