People's Mutual Life, Accident & Health Insurance Co. v. Powell
| Decision Date | 06 March 1911 |
| Parties | PEOPLE'S MUTUAL LIFE, ACCIDENT & HEALTH INSURANCE COMPANY v. POWELL |
| Court | Arkansas Supreme Court |
Appeal from Boone Chancery Court; T. Haden Humphreys, Chancellor reversed.
Reversed and dismissed.
Downie Rouse & Streepey, for appellant.
A failure of the minds of the parties to meet in any essential vitiates the contract. 5 L. R. A. (N. S.) 407. An agent cannot bind his company by a parol contract of insurance. 100 Ga. 330; 34 N.Y.S. 872; 87 F. 71; 20 Ind.App. 206; 66 U.S.548. The burden was on appellee to show authority in Claiborne. 62 Ark. 33; 39 A. 910. Apparent authority is not sufficient. 49 W.Va. 437; 54 Ark. 75; 85 Ark. 345. A reformation will be decreed only where the evidence is clear and decisive. 71 Ark. 614; 75 Ark. 72.
W. F Pace and Troy Pace, for appellee.
A contract of insurance can rest in parol. 66 Ark. 621. A reformation of the policy may be had before or after loss so as to make it conform to the real agreement of the parties. 77 Ark. 48; 73 Ark. 119. The principal is bound by whatever is done by his agent within the scope of his apparent power. 49 Ark. 320. The recovery is not excessive. 58 Ark. 621.
OPINION
The plaintiff, Worthy Powell, instituted this action in the chancery court of Boone County against the People's Mutual Life, Accident & Health Insurance Company to reform an alleged contract of accident insurance and to recover an amount alleged to be due thereon by reason of an accident to plaintiff. He alleges that one of the defendant's agents, W. C. Claiborne, solicited him to apply for a policy in the company, and executed to him a binding slip or receipt putting said policy immediately into effect, and that said agent orally agreed with him that the contract should take effect on November 1, 1909, the receipt being given on October 26, 1909. The receipt is in the following form:
"Policy fee receipt. October 26, 1909. Received of. . . . an application for a policy in the People's Mutual Life, Accident & Health Insurance Company, and the sum of five dollars, being payment in advance of the policy fee upon the policy so applied for; and, should said company decline to issue a policy thereon within twenty days from date hereof, I agree that the amount of payment actually paid shall be returned to said applicant by the person signing this receipt. Applicant will please notify the company at Little Rock, Ark., should policy not be received within ten days from date hereof.
(Signed) "W. C. Claiborne."
It is alleged that Claiborne inadvertently wrote his own name in the blank space instead of plaintiff's name as he should have done, and it is in this particular that the receipt is sought to be reformed.
Claiborne forwarded to the company at Little Rock an application on a printed form, purporting to have been signed by plaintiff. This was received at defendant's office in Little Rock on November 4, 1909, and the policy was issued and mailed to plaintiff on that day. The accident which caused his injury occurred November 1, 1909. The application contained the following clause:
Counsel for plaintiff concede that, if plaintiff signed the application, it became a part of the contract, and that in that event he can assert no claim by reason of the accident which occurred before the issuance of the policy. Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S.W. 317. But the plaintiff claims that he did not sign the application, and he so...
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