Ofield v. National Ben. Life Ins.

LEVY, J. (after stating the facts as above). The written application for the policy, made a part of the “contract” of insurance, as recited in the face of the policy, stipulates as follows: “That said contract shall not be binding upon the company unless on the date of the actual delivery of policy to me or my agent I am alive- and in sound health.” This provision is cumulative, and not in conflict with the further provision in the policy reading: “Provided, however, that no obligation is assumed by the company previous to the date hereof, nor unless on said date the insured is alive and in sound health.” However perfect in form the contract may have been, and although all of its other terms and conditions may have been complied with, the “sound health” of the assured at the time “of the actual delivery of policy” was a condition precedent in order to complete its execution. Wright v. Federal Life Ins. Co. (Tex. Com. App.) 248 S. W. 325. And the .evidence showed with certainty that the insured had been “ill” with influenza “several days” before the actual delivery of the policy on July 29, 1925, which illness resulted in death on August 7, 1925. The question then remains only of whether or not the written application could be deemed a part of the contract of insurance as stipulated; such policy of insurance not being, “accompanied by a written, photographic, or printed copy of the application for such insurance-policy or contract.” According to the Texas statute, the application could not be deemed a part of the contract or policy of insurance. Article 5049, R. S. But this statute bears entirely upon insurance contracts or policies “issued or contracted for in this state.” And the evidence is conclusive, and not contended to the contrary, that the insurance was not contracted nor the policy issued in Texas. *273 The facts show that the application was taken in Arkansas by a local agent of Arkansas, the assured and his father living in Arkansas. The premiums were paid in Arkansas. The agent, having no authority to conclude the contract, forwarded the application and the premiums to the.domicile of the insurance company, and it was there accepted and the policy issued. The policy when returned did not have to be countersigned. The agent was not authorized to withhold delivery, and there was nothing to prevent the immediate conclusion of the contract or postpone the taking effect of the policy. Therefore the insurance contract was, in point of fact, made in Arkansas. The performance of the contract, however, would be, by its terms and intention, at the domicile of the company. Fidelity Mutual Life Asso. v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813. Hence .the court correctly sustained the defense. The character and form of the contract were entirely valid in Arkansas, as proven. It was not formally proven valid within the District of Columbia ; but no act of Congress makes it invalid, and of this we can judicially know. 1 Green-leaf on Evidence, § 490; 1 Rice on Evidence, p. 32; 1 Jones Com. on Evidence, § 112; Apollos v. Staniforth, 3 Tex. Civ. App. 502, 22 S. W. 1061. The judgment is affirmed.