Sengfelder v. Mutual Life Insurance

The opinion of the court was delivered by Hoyt, J. Plaintiff brought this action to recover of the defendant a certain sum of money which he had paid to one Leadbetter, as the first annual premium upon a policy of insurance upon his life for the sum of five thousand dollars, to be thereafter issued by the defendant. The ground upon which he sought to recover this premium back was that the defendant had failed to approve his application, and issue him a policy as required by the terms of his ap [122] plication. Defendant in its answer, after making certain denials, alleged by way of affirmative defense that it had delivered to the plaintiff a policy of insurance for the sum ■ of ten thousand dollars, with the understanding that at the end of the first year it should be reduced at the request of the plaintiff to the sum of five thousand dollars. The plaintiff recovered a judgment for the amount of the premium paid by him, and defendant has brought the case here, and alleges three reasons why the judgment should be re■versed. First, Because it was not alleged or proved that defendant was a corporation, or any other association or body capable of being sued. Second,, That there was no sufficient proof that Leadbetter had authority to contract for the defendant, or that the money was ever paid to the defendant. Tim'd, For error on the part of the court in .allowing a certain written instrument, wherein a demand was made by the defendant upon the plaintiff for payment ■of the second year’s premium on the ten thousand dollar policy, to be introduced in evidence. As to the first alleged error, we think the answer of the defendant, in which it by way of affirmative defense asserted the issuance of a policy by it, was a sufficient admission of its corporate capacity. The rule laid down by this court in the case of Frost v. Ainslie Lumber Co., 3 Wash. 241 (28 Pac. Rep. 354), is decisive of this question, for, while it is true that in that case the complaint was not challenged by demurrer, while in this case it was, yet the demurrer being general was under the circumstances of .this case waived by, the answer, and this question must be decided as though it had never been interposed. As to the second ground, the proof clearly showed that Leadbetter was the agent of-the company for the purpose ,of receiving applications for insurance, and we think that this, and the other facts shown ■ by the proofs, clearly established his authority to act for the company. [123] The paper to which the third allegation is pointed was clearly entitled to be put in evidence. Under the allegations of its answer, defendant was attempting to show the delivery of the ten thousand dollar policy with the understanding that after the first year it should be reduced to one for five thousand dollars. Hence it was competent for plaintiff to show that the company, through its proper channels, had made a demand upon him for the'full amount of premium for the second year upon the ten thousand dollar policy. The paper to which objection was made clearly tended to establish this fact. We find no error in the record. The judgment must be affirmed. Anders, C. J., and Stiles. Dunbar and Scott, JJ., concur.