Washington Life Insurance Co. of New York v. Menefee's Exr.
| Decision Date | 02 November 1899 |
| Citation | 107 Ky. 244 |
| Parties | Washington Life Insurance Co. of New York v. Menefee's Executor. |
| Court | Kentucky Court of Appeals |
APPEAL FROM GRANT CIRCUIT COURT.
C. J. AND W. W. HELM FOR APPELLANT.
W. W. DICKERSON AND C. C. CRANE FOR APPELLEE.
C. J. & W. W. HELM FOR APPELLANT IN PETITION FOR REHEARING.
On the 26th of March, 1897, the appellee's testator made application for a life insurance policy from the appellant through its local agent in Grant county. The policy was made out for $5,000, dated March 31st, and sent to the local agent. Menefee died July 20, 1897, and appellee qualified as executor. Suit was brought upon the policy, and the trial court, the law and the facts being submitted to the court, rendered a judgment in favor of appellee.
The first question presented on this appeal is whether there is any bill of evidence. The record shows no order filing the bill of exceptions, but does show a copy of a bill of exceptions with an indorsement, "Filed June 16th, 1898," and having a certificate in the usual form, signed by the judge. The question having been raised by appellee's brief, appellant filed an additional record, showing a nunc pro tunc order filing the bill of exceptions upon affidavits showing an order to have been in fact made by the judge, and an indorsement of the filing made upon the bill. The order provides: "It is now ordered that the bill of evidence herein is now filed and made part of the record as of June 16, 1898, the said bill having been ordered filed and made part of the record on that day, and the same was, by inadvertence, omitted to be entered in the orders of this court for that day." The evidence whereon to make the order seems to have been sufficient. The court had before it the original bill bearing the judge's certificate and signature, indorsed by the clerk, and the affidavit of the clerk that he so indorsed it on June 16, 1898. The nunc pro tunc order having been properly made, the additional record must be read with the original record, and the order read as if made upon the date for and as of which it was entered. This being so, we can not assume, as urged by appellee, that the bill of exceptions copied into the record is not a copy of the bill referred to by the order, a copy of which is now in the record.
It is urged that the record does not show anywhere that the circuit judge verified, or in any way compared, the bill filed by the nunc pro tunc order with the bill now before us. This objection, we think, has been already answered. It is true the bill in the record here may not be a correct copy of the bill as signed by the judge, but the appellee has his remedy in this case, as he has in any other case of an incorrect copy of the record.
The answer avers that the premium was not paid in advance, and that the application, the policy and the receipt for the premium gave notice of a limitation upon the authority of all agents or officers of the insurance company, except the president, vice-president, or secretary, to change the terms or waive the conditions of its policies; that one of the conditions of the contract was that the company should incur no liability until the application had been approved, and a policy issued, and the premium actually paid to and accepted by the company, or its authorized agent; that appellee's testator, with knowledge that the policy was not intended to be effectual until the cash premium was paid, undertook to procure the money to pay it by borrowing it from Parker, the general agent of the company, and executed his note at four months for $341, the amount of the premium, the note being made payable "to the order of John Alley Parker (Personal);" but that Parker did not pay the amount to the company, and the company had no knowledge of any agreement or transaction between Parker and the testator.
By the reply and amended replies there were set up in various forms waivers by the company, and by its general agent, of the provision requiring a cash payment, and these averments were put in issue by rejoinders.
The trial court found that the policy and the receipt for the premium were delivered to the decedent in his lifetime, and that Alexander, the agent, held the policy for safe-keeping; and, further, that Parker was the general agent of the defendant (appellant) for the State of Kentucky, and that as such, under the law, he had a right to take the note of the testator to himself personally, in lieu of the premium payable in advance, and that he did so.
The clause of the application relied on for the defense is conceded to refer only to liability upon the application, and not upon the policy. The clause of the policy relied on is the provision that the company, "in consideration . . . and of the sum of $341, to be paid in advance, . . . does insure the life of ...
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