Fraser
J., dissenting.
Appeal
from Common Pleas Circuit Court of Lancaster County; George
E. Prince, Judge.
Action
by H. F. Williams, as administrator of the estate of Margaret
E. Williams, deceased, against the Philadelphia Life
Insurance Company and others. Judgment of nonsuit, and
plaintiff appeals. Order of nonsuit set aside, and new trial
ordered.
Following
is the statement of facts referred to in opinion:
The defendant is a Pennsylvania corporation, in the business
of insuring lives; the Gordon Investment Company is a
corporation under the laws of North Carolina, in the business
of selling life insurance; the plaintiff was husband to
Margaret, and was, at the time in issue, an agent of the
defendant company, duly constituted by writing to canvass for
applications for life insurance in York county, and also, by
his testimony, agent for the Gordon Company; and one Gordon
was president of the Gordon Company.
On 22d December, 1910, Margaret made application to the
defendant, through H. T. Williams, printed as
"Agent" on the application blank, and the Gordon
Company, printed as "General Agent" on the
application blank, "for $5,000 insurance on the 20-year
term plan, annual premium $40.25, payable semiannually"
that application was written into a detached printed form
six by eight inches in size, which, for identification, may
be called part 1, though not so marked.
This part 1 is in these words:
"I, Margaret E. Williams, hereby make application to the
Philadelphia Life Insurance Company for $5,000 insurance on
the 20 yr. term plan; annual premium $40.25, payable
semiannually. I was born on the 12th day of April, 1876. Age
nearest birthday 34 years.
Residence, Yorkville, S. C.
Place of business, Yorkville, S. C.
(No.) (Street) (City) (State)
Premium notices to be sent to Yorkville, S. C.
My occupation is housewife.
(State kind of business.)
Beneficiary, estate.
Dividends to be paid to assured at the end of each year.
I have this _____ day of _____ given to _____, Agent, the sum
of $_____, to be used in payment of the first _____ annual
premium on policy when issued by the company in accordance
with this application, and I hereby agree to be examined
forthwith by an authorized medical
examiner of the company, and to accept the policy when
issued.
I hereby agree that all representations and agreements made
by or with the company or the agent taking this application
are reduced to writing herein and made a part of this
application and the policy issued hereinunder.
Dated at Yorkville, S. C., this 22d day of December, 1910.
Witness: H. T. Williams, Agent.
Margaret E. Williams.
General Agent, Gordon Insurance & Inv. Co."
Upon the face of the original of part 1 is rubber stamped the
numerals "18090," and upon the back of it is rubber
stamped "James H. Perry, General Agent, 27 Dec.
1910." Detached from this application paper, but a part
with it, is a large sheet of paper printed on the back
"Application Part 2," which embodies (1) the
declaration of the applicant made to the company's
medical examiner, and (2) the declarations of the medical
examiner. The concluding sentence of part 1 are those words
already set out in it; and at the end of the applicant's
declaration in part 2 are these words:
"I hereby agree, for myself and all parties who may have
an interest herein, that all the foregoing statements and
answers and those made to the medical examiner are true and
complete, and are offered to the company as a consideration
for the contract which I hereby agree to accept; that no
other information or answer than is herein contained, whether
known to, made by, or given to any person, shall be
considered as a part of the contract; that should this policy
become a claim during its first year, nothing herein shall
prevent the company from introducing any information as evidence of fraud; that the policy granted herefor
shall not take effect until issued, delivered, and the
premium paid thereon to the company or to an agent holding
the premium receipt from the company during my lifetime and
while in good health."
One of the applicant's answers is that the premiums were
to be paid by the husband, H. T. Williams.
This application, part 2, has rubber stamped on the face of
it "Dec. 27, R. E. G.," and on the folded back of
it is the same number, "18090," and on the folded
face there was indorsed, as "at the office of the
company," the following:
"Name, Margaret E. Williams.
No., 18090.
Age, 35.
Amount, $2,000.
1/2 annual premium, $52.56.
Policy date, Dec. 28, 1910.
From 321-6-09. Kind, 20 E. A. S. 20.
Beneficiary, estate.
G. A., J. H. Perry.
Agent, Gordon Ins. & Inv. Co.
H. T. Williams."
And on the folded back there is indorsed the following:
"Approved, December 30, 1910.
For $5,000.00 only.
Fairly good family history.
T. Hewson Bradford, Medical Director."
"Approved:
20 E.
A. S. 20 $2,000.00.
12/30/10.
E. B."
So much for the applications and the writings in and upon the
same.
There was put in evidence a 20-year endowment accumulated
surplus policy of insurance, signed by the defendant, No.
18090, dated 28th December, 1910, for $2,000, to Margaret E.
Williams, the annual premium for which is $101.06, payable
semiannually in equal parts.
Pasted within this policy's sheets is a photographic copy
of the declarations of Margaret, made to the medical
examiner, and the examiner's declarations, before
referred to in an application, part 2, for a $5,000 policy.
And on the back of this policy there purports to be a
"Copy of Application." No original was proven, but
the same is a modified copy of the application for $5,000
insurance, before referred to; for it is a literal copy
thereof, save in these particulars, to wit:
The original is for $5,000; the copy is for $2,000. The
original states nearest birthday to be 34 years; the copy
states nearest birthday to be 35 years. The original is for
20-year term plan, premium $40.25; the copy is for 20 end A.
S. plan, premium $101.06. The original calls for payment of
dividends at the end of each year; the copy calls for payment
of dividends at the end of 20 years.
On the top margin of the third page of the policy in pen
script is this significant admission, to wit:
"At the request of the insured the premiums hereon are
changed to semiannual installments of fifty-two 56/100
dollars each, payable on the 28th day of December and June of
each year hereafter during the premium paying period of this
policy.
Philadelphia, Dec. 31, 1910.
William H. Hubbard, Secretary."
This policy for $2,000 was never put into the hands of
Margaret or her husband. Thereabout the defendants'
actuary wrote a letter, dated 13th April, 1911, to H. T.
Williams, after Mrs. Williams' death, as follows:
"Philadelphia Life Insurance Company, Home Office, North
American Building, Philadelphia.
April 13, 1911.
Ernest M. Blehl, Actuary,
Mr. H. T. Williams, Yorkville, S. C.:
Dear Sir: In re Policy No. 18090--M. E. Williams.
In reply to your telegram of to-day, I beg to state that your
application for a policy on this life was on twenty-year term
plan, and same for several reasons would not be approved. We
did, however, issue a contract in January, on twenty-year
endowment, accumulated surplus plan, and forwarded it to the
Gordon Insurance & Investment Company for delivery, but same
was returned to this office for cancellation, as not taken.
If you desire the policy revived on twenty-year endowment,
accumulated surplus plan, please advise."
There is no mark of cancellation on the policy. Margaret died
in March, 1911, of an operation.
No premium was actually paid to the defendant,
though the plaintiff would have made payment had he the
opportunity to do so; for payment,
the husband relied on that answer in the application which
made him the payer of the premiums; and upon his parol
contract with the Gordon Company (printed in the application
blank as general agent of the defendant), which contract,
when performed, constituted the defendant his debtor by way
of a bonus to the amount of $125, for writing an aggregate of
$50,000 insurance.
Williams & Williams & Stewart and Jones & Jones, all of Lancaster, for
appellant.
Wilson & Wilson, of Rock Hill, Stack & Parker, of Monroe, N. C., and
C. N. Sapp, of Columbia, for respondents.
GAGE
J.
Let the
statement of facts appended hereto be reported with the
opinion.
The
major and decisive issue in the case is one of law, and it is
this: Did the testimony tend to prove a contract of life
insurance betwixt the parties?
We are
of the opinion that the written testimony tended to prove
such a contract, and that, therefore, the order of nonsuit ought not to have been ordered, the second
nonsuit now granted in this cause. 105 S.C. 305, 89 S.E. 675.
Beyond
question a policy for $2,000 was written on the life of Mrs
Williams by the defendant, and was sent from Philadelphia to
Monroe, N. C., to the Gordon Insurance & Investment Company
...
