Rhodus v. Kansas City Life Insurance Company
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 907,156 Mo.App. 281 |
| Parties | JULIA RHODUS, Respondent, v. KANSAS CITY LIFE INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clay Circuit Court.--Hon. Francis H. Trimble, Judge.
Judgment affirmed.
Reed Atwood, Yates, Mastin & Harvey for appellant.
James Simrall and Fyke & Snider for respondent.
Defendant is a life insurance company located at Kansas City, Missouri and it had an agent named Galvin, who solicited insurance at different places in the state, took applications and notes for first year's premiums, collected the notes and sometimes delivered policies after they were issued. Defendant also had a local medical examiner at Lawson, a town about fifty miles from Kansas City. Plaintiff, claiming that defendant made a binding verbal contract of life insurance on the life of her deceased husband, Charles O. Rhodus, in her favor, for five thousand dollars, brought this action for that sum and recovered judgment in the trial court.
The action is based on the following facts: On the 6th of January, 1909, at Lawson, Rhodus made written application to defendant, through Galvin, for the insurance claimed, payable to his wife at his death, and on the same day was examined by the local medical examiner at that place. The examination was written, made a part of the application and transmitted to defendant at Kansas City. Defendant insists that it did not receive the application until something more than a month, February 9th, thereafter; but it may be said from the whole record that there was evidence tending to show that it was received two days after its date, viz., January 8th. But, be that as it may, on the day the application was made, Rhodus gave his note to Galvin for $ 173.80 as the first year's premium, and the latter sold it to a bank in a nearby town, but by some means got it back again. Just one month after the application and note were taken, February 6th, Rhodus died. Defendant, at its office in Kansas City, did not know of his death for five days. In the interval there was some degree of activity by the deceased's brothers, seemingly aided by defendant's agent. One of the brothers telephoned to the agent, who at the time seems to have been in Kansas City, telling him that he would like to get the premium note given by his deceased brother, and that if he, the agent, would go to a certain commission company in that city he could get the money due on the note. The agent collected the money from the company, and keeping out the larger part as his commission on the insurance, remitted the balance to the defendant by check on February 8th, which defendant, not knowing of Rhodus' death, accepted, but which it retained after learning of the death and still retains.
The application made by Rhodus was the usual one, embracing questions as to his age, health, bodily condition, other insurance, whether ever rejected by other companies, etc. The entire face of it showing that it was merely asking the company to insure him, and not purporting in any way to be an insurance. It also contained the following clause:
The undisputed fact appeared that at the time of Rhodus' death the application had not been acted upon; it was neither approved nor rejected by the company, and had not been seen by the medical director and no policy was ever issued by the company.
On the foregoing state of facts, defendant insists that a demurrer to the evidence should have been sustained by the trial court.
An application to be insured as the word signifies, in that connection, is no more than a proposition to the insurance company, and necessarily it must be first accepted before there can be a meeting of minds so as to form a binding contract. [McCully v. Ins. Co., 18 W.Va. 782; McMaster v. Ins. Co., 99 F. 856, 866; Kohen v. Ins. Co., 28 F. 705.]
And where this written proposal states the time and manner for the proposition to ripen into a completed contract, as in this case, those conditions must transpire before the contract takes effect. [Kilcullen v. Ins. Co., 108 Mo.App. 61, 82 S.W. 966; McCully v. Ins. Co., supra; Noyes v. Ins. Co., 1 Mo.App. 584; Farmers & Merchants Ins. Co. v. Graham, 50 Neb. 818, 70 N.W. 386; Chamberlain v. Ins. Co., 109 Wis. 4, 85 N.W. 128.]
In this case the applicant himself made the binding statement in his application that there should be no...
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