Pauley v. Business Men's Assurance Company of America
| Decision Date | 05 May 1924 |
| Parties | EMMA R. PAULEY, Respondent, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Mercer County.--Hon. L. B. Woods Judge.
AFFIRMED.
Judgment affirmed.
Hyde & Hyde and Solon T. Gilmore for appellant.
John E Powell and Mossman, Rogers & Buzzard for respondent.
This is a suit upon a policy of accident insurance in the sum of $ 5000 issued by the defendant on April 6, 1922, to one Elmer F. Pauley, of Princeton, Missouri, in favor of his wife, the plaintiff, as beneficiary in case of his death. There was a verdict and judgment in favor of plaintiff in the sum of $ 5250 on the policy, $ 500 as a penalty and $ 1000 as attorneys' fees. Defendant has appealed.
In his application for the insurance Pauley, the insured, stipulated that the policy was to take effect when it was received and accepted by him and that he agreed that upon receipt of the policy he would examine it and if satisfactory he would accept it, but if it was not satisfactory he would return it within three days in order that the amount that he paid at the time of his application to carry the insurance to the next premium payment date might be returned to him. In the application insured directed that the policy be mailed to him. The policy provided "the accident insurance under this policy does not cover any injury, fatal or otherwise sustained by the insured prior to his actual receipt and acceptance of this policy."
Defendant's contention is that the policy never was in force and effect for the reason that the insured was killed before the policy was received and accepted by him. Plaintiff introduced testimony tending to show that her husband came to his death by external, violent and accidental means; she then introduced the policy and proved the amount of the attorneys' fees, and rested. Thereupon defendant put upon the stand the postmaster at Princeton, Missouri, who was asked if he received on or about April 8, 1922, at the post office there, an envelope containing mail matter bearing defendant's name addressed to E. F. Pauley, Princeton, Mo. He answered that he did not know the exact date but that Pauley died the night of April 8th and that he saw the letter in the post office the following morning; he stated that "it occurs to me there was a letter--something of the description that you made--in the office that morning;" that he delivered the letter personally on the morning of the 9th at Pauley's house to some other woman than Mrs. Pauley who did not come to the door; that he delivered to Pauley's house more than one piece of mail that morning and to the best of his recollection he delivered a letter bearing the return mark of the Business Men's Assurance Company of America. On cross-examination he testified that it was 120 miles from Princeton to Kansas City (the home office of the company was located in the latter place and the policy was mailed from there); that there were several mail trains from Kansas City to Princeton and that the distance was covered by train in four and a-half or five hours. He further testified that he had assistants in the post office; that his hours were from six to six during the week and from six until the time the mail was distributed on Sunday morning and from 12:30 to 2:30 in the afternoon of that day; that the letter was delivered on Sunday morning; that he had no positive knowledge or recollection as to when defendant's letter came into the post office; that it was unopened at the time he delivered it; that it never left the post office prior to Pauley's death.
Defendant then called plaintiff who testified that she first saw the policy just after the mail carrier brought it; that he brought it Sunday morning after her husband's death; that some woman handed it to her; that she did not see who delivered it at the house. On cross-examination she testified that she did not know who brought the policy to her house. She did not know where it came from, that some lady handed it to her; she did not know whether Pauley had it in his possession or in his hands before his death. On re-direct examination she testified that the policy was not in an envelope when it was handed to her but that one Dr. Perry opened the envelope in her presence shortly after she received it. On behalf of defendant Dr. Perry testified that a large sealed envelope addressed to Pauley came to plaintiff's house on the Sunday morning in question; that "I think probably it was handed to Mrs. Pauley and she handed it over to me." He did not say definitely who handed the envelope to him; that "someone handed it to me;" that he did not know who brought the letter to the house; that it was sealed when it reached his hands and had canceled postage stamps upon it but that he did not know the date of the cancellation of the stamps; that he opened the letter and found therein the policy of insurance sued on.
It is insisted by the defendant that the court erred in failing to give defendant's instruction in the nature of a demurrer to the evidence for the reason that the evidence shows the policy was not in effect at the time of the death of the insured. Plaintiff insists that she made out a prima-facie case when she introduced the policy and proved the death of the insured. In support of this contention she cites cases so holding in circumstances where there was nothing in the policy to prevent it being effective upon delivery. In such cases plaintiff makes out a prima-facie case because of the presumption that the policy being in his possession is presumed to be there lawfully. It is held in these cases that while this presumption is rebuttable, and there is testimony on the part of the defendant tending to show nondelivery and acceptance of the policy on the part of deceased, the credibility of the witnesses is for the jury, and however strong and convincing the testimony of the defendant may be, the court cannot direct a verdict for it. [Lafferty v. Casualty Co., 287 Mo. 555; Gannon v. Gas Company, 145 Mo. 502.] But these cases are unlike the instant one. Here there is no question but that the policy was delivered during the lifetime of the insured for the delivery took place when the policy was deposited in the mail, but the application and policy provide that the latter should not become effective until the insured received and accepted it. The insured had the right to reject the policy after he received it and until insured was bound of course the company was not bound either.
In addition to this it is insisted by defendant that the testimony of plaintiff herself shows that the policy was never received and accepted by the insured during his lifetime and although she was put upon the stand by the defendant she is bound by her own testimony. Great stress is laid by defendant upon the terms of the application and the policy that the latter should not be in force until insured not only received the policy but accepted it. It will be noted that it is not provided in the policy that the insured should do anything to show his acceptance of the policy but merely to signify his nonacceptance. The acceptance of the policy on the insured's part could have been made merely by a mental act. Plaintiff insists that the insured could have accepted the policy without even opening the envelope and reading it and states that many persons applying for insurance do not read their policies when they are sent to them, and if insured actually received the policy and determined to accept it without reading it and put it aside without opening the letter, the acceptance of the policy by the insured was complete.
The testimony of plaintiff does not show that the policy was not in the hands of the insured during his...
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