Smith v. Commonwealth Life Ins. Co.
| Decision Date | 27 January 1914 |
| Parties | SMITH v. COMMONWEALTH LIFE INS. CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, McCracken County.
Action by Lena Smith against the Common Wealth Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.
J. F Nicholson and Hazelip & Kahn, both of Paducah, for appellant.
Wheeler & Hughes, of Paducah, for appellee.
The defendant, Commonwealth Life Insurance Company, issued to Elvis Wallace a policy insuring his life in the sum of $300 in favor of his sister, Lena Wallace, now Lena Smith. The policy is dated October 16, 1911. Payment being refused, the plaintiff and beneficiary, Lena Smith, brought this action against defendant to recover thereon. Plaintiff avers in her petition that the insured, Elvis Wallace, died from drowning on the night of October 16, 1911, and that he was in good health and alive when the policy was issued and delivered. She further alleged that the premium of 15 cents for the week of October 16, 1911, had been paid, and there was due during that year a balance of $7.65. Claiming that defendant was indebted to her in the sum of $300, less $7.65, she asked judgment for the balance, amounting to $292.35, with interest. The insurance company defended on the ground that the policy had never been delivered to the insured, and that the first week's premium had never been paid. At the conclusion of plaintiff's evidence the trial court directed a verdict in favor of the defendant. Plaintiff appeals.
Plaintiff testified that defendant's agent came to her house on Tuesday morning, October 17th. He stated to her that her brother's policy had come and he could not find her brother. He further stated that he tried to deliver it all day Saturday and Monday, but could not find him. She told the agent that she had the money to pay on the policy, and he could deliver it to her. This the agent declined to do. At that time she did not know that her brother had been drowned. She saw the agent again on the following Saturday and he refused to deliver the policy. She admitted, however, that she never saw the agent until after her brother was drowned. Her brother was in good health on Monday, October 16th.
Mr Pace, defendant's agent at Paducah, testified that the policy in question was delivered to him. On Monday morning he carried the policy around with him. He collected at the house where the sister of the insured lived. The insured was not there. On being asked if the premium was paid, he answered "Well, yes, I suppose the premium was paid." He further stated that it was the rule of the company to take the first premium out of the agent's salary. It was paid in this way. He was not reimbursed by the insured, nor did any one else repay him. Nor did the company ever return the 15 cents. The policy, which was admitted in evidence, contains the following provision "The...
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