Stringham v. Mutual Life Ins. Co.

• Decision Date: 14 March 1904
• Citation: 44 Or. 447,75 P. 822
• Parties: STRINGHAM v. MUTUAL LIFE INS. CO. OF NEW YORK
• Court: Oregon Supreme Court

75 P. 822

44 Or. 447

STRINGHAM v. MUTUAL LIFE INS. CO. OF NEW YORK

Supreme Court of Oregon

March 14, 1904

CAppeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Maud Marie Stringham against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint herein states, in purport, that on July 17, 1901 Leroy Stringham made application to the defendant at Portland, Or., for a policy of insurance upon his life in the sum of $1,000, payable in the event of his death to his wife the plaintiff; that the application was accepted by the defendant, and the first annual premium therefor, of about $30, was paid to and accepted by it, whereby the defendant contracted and agreed to insure and did insure the life of Stringham for the term of one year from July 17th, and agreed to pay to the plaintiff, in the event of his death within the year, the said sum of $1,000; that Stringham died on July 28th, before the policy was delivered to him, but while the contract of insurance was in full force and effect, as alleged. The answer admits the making of the application and the death of Stringham, but specifically controverts the other allegations of the complaint. For a further answer defendant alleges, in substance: That on the day named Stringham made and signed a certain application to the defendant for a policy of insurance upon his life for $1,000 payable in the event of his death to his wife, setting out the same by copy. That he gave the application to one W.A Cummins, a soliciting agent engaged in the business of soliciting life insurance, to be forwarded through Sherwood Gillespy, the general agent of the defendant for the states of Oregon and Washington, whose office was and is at Seattle, Wash., to defendant, at its office at New York City. That at the same time Stringham signed and gave to said Cummins his promissory note, made payable to and indorsed by himself, for the sum of $29.22, payable 60 days after date, and received from Cummins a receipt, of which the following is a copy: "Amount, $29.22. Insurance, $1,000. Portland, Oregon, July 17, 1901. Received from Leroy L. Stringham his note, due sixty days from date, which if paid when due will be in full for the first annual premium for a policy of insurance for $1,000 on the life of himself on L. 20-20 plan, provided a policy is issued on his application made this day. If policy is not issued, above-described note to be returned to said Leroy L. Stringham. W.A. Cummins." That said application was forwarded through its agent at Seattle, Wash., to the defendant, and received at New York City on July 25, 1901, and approved by it on July 27th, without knowledge of the illness of Stringham, he having been stricken with pneumonia on the 24th; whereupon it caused to be made out and signed by its secretary a policy of insurance upon the life of Stringham agreeable to the application, and mailed the same to its agent at Seattle, to be by said agent issued to Stringham upon the payment of the first annual premium, provided Stringham was at the time the said policy should be issued in the same condition of good health as at the date of the application. That the policy was received by Gillespy at Seattle on the 2d of August, 1901, and by him forwarded to C.H. Waterman, the company's agent at Portland, Or., to be issued to Stringham upon payment by him of the first annual premium. That the policy was received by Waterman on the 5th of August, but he, having learned of the death of Stringham, refused to issue such policy, but returned it to the company at New York City. That on July 30th, two days after the death of Stringham, the same being unknown to Waterman, one W.P. Dillon, claiming to act on behalf of Stringham, but without authority, being at the same time cognizant of his sickness and death, paid to Waterman the sum of $29.22, to be applied in payment of the note executed by Stringham and delivered to Cummins, and the same was accordingly received by Waterman, but subsequently, on learning of the death of Stringham, he repaid it to Dillon. The reply admits the making of the application, the giving of the note, and the execution of the receipt by Cummins, its delivery to Stringham, the forwarding of the application to the company at New York, its approval by the company, the making out and signing of the policy of insurance by defendant's secretary agreeable to the application, the mailing of the policy to Gillespy, its receipt in Portland by Waterman, the payment of the premium by Dillon to Waterman and its subsequent return to Dillon, practically as alleged in the answer, but it denies that Stringham became ill on the 24th of July, or that said policy was mailed to Gillespy to be by him issued to Stringham upon the payment of the first annual premium providing Stringham was at the time in good condition of health, or that it was forwarded to Waterman at Portland, Or., to be by him issued upon such payment of premium. For a further reply plaintiff alleges that at the time of making the application it was agreed between the defendant and Stringham that the insurance on his life should not take effect until the first premium should have been paid during his continuance in good health and the policy should have been signed by the secretary of the company and issued, and that Stringham paid to it the said first premium of $29.22, in accordance with the said agreement, while he was in good health; that at the time of making said application the payment of such premium in money was not required by the company, and the defendant agreed to and did accept Stringham's note for the same, being the note set out in the answer, in full payment and settlement thereof; that thereafter, on receipt of the application at New York City, the defendant caused the policy to be made out, signed by the secretary, and issued as agreed upon; that said policy was mailed to the agent of the defendant in Portland for delivery to Stringham, but that before delivery could be had Stringham died, which was after the premium had been paid during the good health of Stringham, and that at the time of the death of Stringham the policy of insurance was in full force and effect. Upon this state of the record the defendant moved the court for a judgment upon the pleadings, and that the cause be dismissed, at the cost of plaintiff, which was overruled. The parties then proceeded to trial, and the plaintiff rested after having offered evidence tending to show that Waterman was the resident agent of the defendant for Oregon, and kept an office in Portland; that plaintiff made application to the company for payment of her claim, the receipt of which was acknowledged by it, and payment declined, on the ground that the alleged policy had not been issued during the applicant's continuance in good health, and the stipulation of the parties that Stringham became ill with pneumonia on the 24th of July, 1901, that a physician was called on that day, and that he died on the 28th of July. The defendant thereupon moved for a judgment of nonsuit against the plaintiff. The motion being denied, it was further stipulated that the defendant was not notified of the change in Stringham's condition of health until after his death, and, both parties having rested, the court instructed the jury to return a verdict for plaintiff as demanded, and, judgment having been entered accordingly, the defendant appeals. Among the errors assigned are (1) the overruling of defendant's motion for judgment on the pleadings, (2) the overruling of its motion for judgment of nonsuit, and (3) the direction of a verdict for plaintiff as demanded in the complaint.

O.F Paxton, for appellant.

G.A. Brodie...