Opinion
No. 23340
Decided June 15, 1932.
Insurance — Effective date — Policy date controls, regardless of delivery date and repugnant clauses in application — Mailing policy to agent constitutes delivery to insured, when.
1. Where a provision in an accident and death policy of insurance recites that it takes effect as of the 12th day of March, 1930, which provision appears immediately over the signature of the authorized officers of the insurance company, such policy becomes effective March 12, 1930, regardless of the date of delivery and of repugnant clauses contained in the application for insurance.
2. The facts disclosed by the record show that there was a delivery within the terms of the policy in this case.
ERROR to the Court of Appeals of Lawrence county.
This action was originally filed in the court of common pleas of Lawrence county. In that action the defendant in error here was the plaintiff, and the plaintiff in error was the defendant.
The suit was brought by Elizabeth Clutts, the beneficiary under a combined accident and death policy of insurance, claimed by her to have been issued by the New York Life Insurance Company on the life of George E. Kurtz, by the terms of which policy the insurance company agreed to pay her two thousand dollars upon the death of Kurtz, who died on March 21, 1930. She prayed for a judgment in the sum of two thousand dollars.
The insurance company admitted the issuance of the policy, but claimed that it did so pursuant to a written application made to it by Kurtz, in which application it was agreed that the insurance applied for should not become effective until the policy was delivered to and received by the applicant, and the first premium thereon paid, and then only if the applicant had not consulted or been treated by any physician since his medical examination.
The insurance company further claims that the policy was not delivered until March 17th, and that after his medical examination on March 7th, and before the policy was delivered, Kurtz had consulted and been treated by physicians for the illness that caused his death, and that the insurance thereby never became effective.
The insurance company further claims that the answers made by Kurtz to the questions submitted to him before the policy was issued are to be considered as continuing answers up to and until the time the policy was delivered, and that while these answers may have been true, at the time they were made, they ceased to be true when applied to the conditions that obtained on March 17th, when, according to the claim of the insurance company, the policy was delivered.
All these matters were traversed by the defendant in error in her reply, and she further pleaded that the insurance company had waived any claim it might have had by reason of the illness of the insured after the application for insurance was made, as it delivered the policy to him with knowledge of such illness.
The case came on for trial, and at the conclusion of all the testimony the beneficiary made a motion for a directed verdict, whereupon the insurance company also moved for a directed verdict. The trial court directed the jury to return a verdict for plaintiff for the amount sued for, which was done, and judgment entered on the verdict. Error proceedings were prosecuted in the Court of Appeals of Lawrence county, which court affirmed the judgment of the common pleas court, and this proceeding is brought here to reverse both courts.
Mr. Louis H. Cooke and Messrs. Arnold, Wright, Purpus Harlor, for plaintiff in error.
Mr. H.A. McCown, for defendant in error.
As this court views it, the insurance company has no standing whatever in this case. It undertakes to plead a violation of a clause of a provision of the application. This court is of the opinion that the facts in this case do not bring it within the provision of this clause, and if they did the beneficiary was entitled to a verdict in her favor for the full amount of the policy, according to the terms of the policy.
The insurance company insists that the insured is charged with a complete knowledge of every provision contained in his application; that if, after he has been examined and made application for his policy, and before the delivery of the policy, he is obliged to have medical attention, upon the delivery of the policy he must refuse to accept it and must direct the company to cancel it.
The provision in this application contains several clauses:
First, immediately following the one complained of by the insurance company, we find the following language: "Provided, however, that if the applicant, at the time of making this application, pays the agent in cash the full amount of the first premium for the insurance applied for in Questions 2 and 3 and so declares in this application and receives from the agent a receipt therefor on the receipt form which is attached hereto, and if the company, after medical examination and investigation, shall be satisfied that the applicant was, at the time of making this application, insurable and entitled under the company's rules and standards to the insurance, on the plan and for the amount applied for in Questions 2 and 3, at the company's published premium rate corresponding to the applicant's age, then said insurance shall take effect and be in force under and subject to the provisions of the policy applied for, from and after the time this application is made, whether the policy be delivered to and received by the applicant or not."
Second, "That a receipt on the form attached as a coupon to this application form is the only receipt the agent is authorized to give for any payment made before the delivery of the policy."
Third, "That only the president, a vice-president, a second vice-president, a secretary or the treasurer of the company can make, modify or discharge contracts, or waive any of the company's rights or requirements; that notice to or knowledge of the soliciting agent or the medical examiner is not notice to or knowledge of the company, and that neither one of them is authorized to accept risks or to pass upon insurability."
It will be seen that if the insured complies with the latter clauses of this provision in the application, the clause depended upon by the insurance company to defeat the beneficiary is entirely neutralized. The final clause of this policy reads as follows:
"This policy takes effect as of the twelfth day of March, nineteen hundred and thirty which day is the anniversary of the policy.
"In witness whereof the New York Life Insurance Company has caused this contract to be signed this twelfth day of March, nineteen hundred and thirty."
The above is signed by the president, secretary, and registrar, and immediately above these signatures, and the clause just quoted, we find that the contract is made in consideration of the application and the payment in advance of $56.38, the receipt of which is acknowledged on the 12th day of March, 1930.
We are of opinion that it makes little or no difference when this policy was delivered, in view of these provisions. However, if delivery was necessary, according to the law as we view it and as announced by the Court of Appeals, the delivery of the policy was as a matter of fact made on March 15th. We are in complete accord with the law announced by the learned judge of the Court of Appeals, to the effect that "where the premium has been paid delivery may be effected by delivery to the agent, and delivery to the agent is accomplished by placing the policy in the mails, directed to him."
We find no error in this case, and the judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.