National Life Ass'n v. Speer

Wood, J., (after stating the facts). The only question presented by this record is, was the mailing of the policy to Wall and its receipt by him alone sufficient to constitute a delivery to the assured under the terms of the contract of insurance? The court can not make agreements for parties, but must construe and enforce the agreements as the parties themselves have made them. It was agreed between Doctor Speer and the appellant that the latter should “incur no liability under the application until the policy was issued and delivered to Doctor Speer while in good health.” Under this agreement the court erred in its instruction. The issuing of the policy and mailing the same to appellant’s agent Wall and the receipt of the policy by Wall did not constitute a (delivery of the policy, under the above agreement. Wall was the agent of the appellant, and not the agent of Doctor Speer. There is nothing in the testimony to show that Wall, after he received the policy, did any act that would constitute a delivery by him of the policy to Speer. On the contrary, the testimony of Wall shows that Speer told him that he had decided to take the insurance with agent Bray; whereupon Wall wrote the company notifying it that Speer had declined to take the policy and asking it to refund the money that had been paid on the policy, and the day after Speer died Wall returned the policy to the company. There was further testimony in the record showing tha/t the application of Speer made through Wall had been cancelled at Wall’s request and his notes returned to him, and that the policy was issued to the credit of Bray, another agent of appellant, and that as soon as the policy was returned to appellant by Wall it would send the policy to agent Bray to be delivered to Speer. This undisputed evidence shows that the appellant never lost control of the policy after it was issued. ' It had never been delivered by appellant’s agent Wall because Speer refused to accept it from him and Wall held it thereafter for his company and not for Speer, and the testimony shows that the company still claimed dominion over the policy by saying that as soon as it was returned to it by their agent Wall- it would be sent to their agent Bray for delivery. As we view the undisputed evidence, the company never at any time delivered the policy to Speer. Under the broad terms of appellant’s waiver, we must assume that Speer was in good health at the time the policy was issued and mailed to appellant’s agent Wall and at the time the same was received by him to be delivered, and that the agent, upon inquiry, would have ascertained such to be the fact. But, notwithstanding such was the fact, it was still the duty of the agent, under the conditions contained in the application, to make inquiry and to ascertain such to be the fact before he could make delivery of the policy to Speer. Therefore, the policy was not mailed to Wall by the appellant to be delivered unconditionally, and Wall was still the agent of appellant, after the policy had been received by him, to ascertain whether the conditions as to the good health of the appellant existed. The Court of Appeals of Missouri, in Kilcullen v. Life Ins. Co., 108 Mo. App. 61-68, said: “The effort of the deceased to obtain a policy of insurance was but an invitation or proposal, which was entertained by defendant upon the terms expressed in the receipt for the premium payment and the latter received upon the conditions therein recited. The application being a naked offer to enter into a contract of insurance, the defendant was at liberty to accept or reject it at its pleasure, and, if accepted, it was entitled to interpose such conditions as it saw fit. It therefore, reserved, among others, the right to require before the delivery of the policy, that the conditions under which the proposition had been made and favorably considered by it remain undisturbed and unchanged, and that the subject of insurance continue alive and in good physical condition. The contract itself could not become effective until the proposition submitted to the opposite party had been accepted on the terms the latter recited and defined and notice of such acceptance conveyed to the proposing party. The mere act of passing the manual possession of the instrument evidencing the contract to be entered into might have been dispensed with, where, in such event, the defendant had communicated (to) the assured by other method the acceptance of the proposal, thereby completing the contract, but in this case no intimation or other means were resorted to and the policy of insurance remained in the custody of defendant’s agents without being delivered, and the contract failed of consummation and never became operative.” See Horton v. Insurance Company, 151 Mo. 604-620. So here Speer declined to accept the policy from the agent Wall, and Wall never attempted thereafter to hold the policy for him, and neither the company nor Wall mailed the policy directly to Speer. In other words, there is no testimony in this record to warrant the conclusion that the appellant ever relinquished absolute dominion over the policy to Speer from the time it was issued. Appellant was never in a situation where it could not have demanded and required a return of the policy, for it never passed into the control of Speer, and Speer, by refusing to take it from Wall, precluded the consummation of the contract of insurance. If appellant itself, or if Wall, its agent, after receiving the policy, had mailed the same to Speer, or if Wall, by any other act of his, after receiving the policy, had shown that he held the same for Speer, the case might have been different. See Dupriest v. Insurance Co., 97 Ark. 229-232, where this court, speaking through Mr. Justice Hart, said: “Where the agent, in compliance with the directions of the insured, and in good faith, places the policy, duly executed, in the postoffice,' with the postage prepaid, addressed to the insured, so that he would receive it at the address given in due course of mail, while in good health, such acts constitute a delivery and complete the contract of insurance. This is so because there is, in such case, an intention on the part of the insurer to put the policy beyond the control of the insurance company, and the insured must acquiesce in this intention.” See also Travelers’ Fire Ins. Co. v. Globe Soap Co., 85 Ark. 169. The appellee relies upon the case of New York Life Ins. Co. v. Adelaide A. Babcock (Ga.), 42 L. R. A. 88. The conclusion there reached under the facts and the statute of Georgia was correct. But the facts of that case distinguish it from this. If the facts were like the case at bar we would consider the reasoning of that case unsound and the doctrine not the law, and would decline to follow it. Judgment reversed and cause dismissed.