Powell v. Prudential Ins. Co. of America

• Decision Date: 17 December 1907
• Citation: 45 So. 208,153 Ala. 611
• Parties: POWELL v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Alabama Supreme Court

45 So. 208

153 Ala. 611

POWELL v. PRUDENTIAL INS. CO. OF AMERICA.

Supreme Court of Alabama

December 17, 1907

Appeal from Circuit Court, Wilcox County; Henry F. Reese, Special Judge.

Action by J. T. Powell, as administrator of the estate of C. D Powell, deceased, against the Prudential Insurance Company of America. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. N Miller, for appellant.

William C. Fitts, for appellee.

HARALSON J.

On June 22, 1904, Claude D. Powell applied to the defendant company for insurance on his life for $1,000. In his application for insurance, he stated: "I am in good health, * * * and all the statements and answers to the above questions are complete and true, and that the foregoing, together with this declaration, shall constitute the application, and become a part of the contract for insurance hereby applied for. And it is agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application."

The policy recites: "In consideration of the application for this policy, which is hereby made a part of this contract and of the payment, in the manner specified, of the premium herein stated," the defendant company hereby insures, etc. It further provides: "No condition, provision or privilege of this policy can be waived or modified in any case except by an indorsement hereon signed by the president, one of the vice presidents, the secretary, the assistant secretary or the actuary. No agent has power in behalf of the company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or making or receiving any representation or information."

Edward Gray, the secretary of the defendant company, testified, that "no agent has any power to make any modification or alter any contract of insurance either in the policy or the application therefor, nor to extend the time for paying any premium nor to extend the time for paying the first premium, nor to waive any condition precedent, nor to bind the company by making any promise or making or receiving any representation or information regarding policies or contracts of said company," and that "no agent has power to bind the company by delivering a policy without the payment of the first premium while the applicant is in good health, nor has any agent power to waive this rule."

"William T. Alford, Jr., had, at no time, any authority to deliver [this policy or] any policy of insurance to any person while the health of that person was bad or while such person was sick."

A copy of the agent's contract with the company was proved and introduced in evidence, fully corroborative of these statements of the secretary, and this evidence is without conflict.

Maxwell testified, that he took the policy from the safe of some merchants, where it was to be found, and sent it to one Dr. McWilliams on August 26th or 27th. The applicant died about 4 o'clock August 26th.

The appellant was dead when the policy was taken by Maxwell from the place where Alford had lodged it for safe-keeping, and when it was delivered to McWilliams.

W. T. Alford, the soliciting agent, testified, that "the first premium was never paid."

G. E. Kyser, witness for plaintiff, testified that Mr. Alford told Dr. McWilliams, who was passing Melton & Kyser's store, and who was called into the store, "to take the policy and pay the premium when he, McWilliams, paid his own premium, McWilliams being insured in same company, and the premium on his policy not being yet due, and asked if the policy would be good, Powell being already sick, and Alford said it would be, and that he Kyser told McWilliams that he, Kyser, would keep the policy, and McWilliams could get it at any time. "No money was paid."

McWilliams testified, as to this transaction, that the policy remained in Melton & Kyser's safe, up to the date of Powell's death, and it was under his control, and he got the policy from Kyser, after Powell's death, and delivered it to J. T. Powell, who was the father of the deceased.

J. T. Powell testified, he was the father of the deceased, who died at his house; that his son came home sick, the 19th or 20th of July, 1904, and had a long spell of continued fever; that he was at his worst about the 10th of August, and died on August 26th; that he was in a dangerous condition about the 1st of August, and remained so for about two weeks, when he took a turn for the better; that he received the policy from Dr. McWilliams, who delivered it to him, after the death of the assured.

The defendant, after all the evidence was in, moved the court to exclude the policy of insurance sued on, on the ground that the application and policy construed together, constitute the contract that the deceased and the defendant were in process of attempting to effectuate, and that when so construed together, they present an executory agreement, by...