People's Mut. Assur. Fund v. Baesse

• Decision Date: 24 November 1891
• Parties: People's Mut. Assur. Fund v. Baesse.
• Court: Kentucky Court of Appeals

17 S.W. 630

92 Ky. 290

People's Mut. Assur. Fund v. Baesse.

Court of Appeals of Kentucky.

November 24, 1891

Appeal from Louisville chancery court. Affirmed.

"To be officially reported."

Action by John Baesse against the People's Mutual Assurance Fund of Louisville, Ky. to recover money due on an insurance policy. Demurrer to answer sustained. Defendant appeals.

Kohn, Baird & Speckert, for appellant.

Dodd & Dodd, for appellee.

HOLT C.J.

In 1880, $3,000 of insurance was taken out in the Presby terian Mutual Assurance Fund of Louisville, Ky. upon the life of Anna K. Baesse, payable to her husband, the appellee, John Baesse, at her death. The policy was kept in force by the regular payment of the premium, and on January 25, 1888, the company desired to quit business. A contract was therefore then made between it and the appellant, the People's Mutual Assurance Fund of the same city, by which, in consideration of the first-named company turning overits risks to the appellant, the latter agreed "to reinsure all the present existing certificates now in full force which have been issued by the first party to certificate holders now in good standing, and to deliver to each of said certificate holders a policy of insurance in the party of the second part; the said certificate holders first agreeing to accept said policies, and to pay the party of the second part for insurance at the following rates: *** The party of the second part hereby binds itself to cause to be executed and issued its policy immediately to each holder of a certificate in the party of the first part who may be in good standing in said first party, accompanied by a written or printed statement or agreement, to be signed by said certificate holder, accepting said policy so sent him, her or them; but in no case shall the party of the second part be liable upon the policy so issued until the person or persons to whom the same may be sent shall have signed the agreement or acceptance aforesaid, and delivered the same to the party of the second part, at its office in Louisville, Ky. or mailed the same addressed to said second party at Louisville Ky. within one week from the receipt of said policy. The party of the first part binds itself to pay over to the party of the second part all money received by it upon its outstanding certificates from and after this date in all cases where the policies of the second party shall be accepted, the said money to be used by the second party in protecting the risks incurred in issuing the policies aforesaid." February 16, 1888, the appellant, at the instance of Anna K. Baesse, issued a policy upon her life for $3,000, payable at her death to her husband. She died November 14, 1888. This action is to recover the $3,000, and an unearned premium, which the insured paid before it fell due, and which was not due at her death. A demurrer was sustained to the answer, and judgment rendered for the appellee upon the pleadings. The orders in the case show that two amended answers were tendered and rejected by the court. They cannot be considered, however, as they have not been copied into this record. Indeed, they do not appear to have been made a part of the record, either by agreement or bill of exceptions. The defense which the appellant's counsel claim is presented is that the risk taken by it was not a transferred one from the other company; that an executed policy, and a written acceptance of the insurance, to be signed by the assured, were sent to and received by her, but the latter was not returned to the company; that 13 days thereafter, and when she had forfeited all right under the contract...