Rogers v. Equitable Mutual Life & Endowment Ass'n

Granger, J. The following are provisions of the certificate: “That the Equitable Mutual Life and Endowment Association, Accident Department, in consideration of the warranties and agreements made in the application for membership, and of the sum of three dollars, and of the quarterly payment of three dollars and seventy-five cents, — the first quarterly payment falling due January 18, 1895, and the second May 1, 1895, and quarterly 'thereafter, — hereby accepts Lewis R.. Rogers, 'by occupation, profession, or employment a freight brakeman, postoffi.ee address, Boone, county of Boone, state of Iowa, as a member of the accident department of said association, and entitled to the benefits hereinafter described, provided all the conditions contained herein, and the by-laws of said association, as now or hereafter amended, .are 'complied with. In the event the member herein named shall [339] sustain wholly disabling accidental injury, effected through external, violent, or accidental means alone, without the intent and meaning of this contract and the conditions now or hereafter made, there shall be due and payable ($6) dollars per week for a period immediately following said injury, and during such total disability, not exceeding fifty-two consecutive weeks; provided, always, that this certificate is issued and accepted subject to the provisions, conditions, limitations, and exceptions herein contained or referred to, and upon the express agreement that all the statements and declarations made by the member in his application for membership are warranted to be true in all respects, and that said application, together with classification of risks indorsed thereon, are referred to, and made a part of this certificate. The member is accepted under classification special hazardous.” The parties are in contention as to when the certificate took effect so as to become a contract of insurance; it -being that of appellant that it was at the date of the certificate, while appellee contends that, when the certificate issued, it related back, so as to be of force from the date of the application. The applica,tion is simply one for membership in the association, and the fact of membership is the basis of a right to indemnity. It is nowhere contended that the agent at Boone had authority 'to accept a person to membership. The application contained the date on which the association was to determine the question of membership. It is not claimed that there would be a liability had the certificate not issued, but that, when issued, it' had a retroactive operation. Appellee’s reliance for such a legal proposition is some language in Wood on Fire Insurance (volume 1), from sections 18 and 20, as follows: “When application is made for insurance by mail, and the agent taking the application has no authority to 'bind the company during the pendency of [340] the .application, or there is nothing in the application itself that binds the company in the interim of tims-, the risk does not attach until it is actually accepted by the company. But as so-on as the risk is accepted, and acceptance is signified by the posting of a notice thereof, the contract is complete, and has relation back to the time when the application was made, or the time designated in the application, if any, when the risk should commence, and covers a loss occurring before the acceptance. When a risk is accepted upon the terms designated in the application, whether the same is made by writing or parol, the contract is. complete, and neither can recede therefrom, and, whether a policy has been executed or not, the risk attaches at the date of the application, or the time designated therein; and the insurer is liable for any loss that occurs after the time when the risk, by the contract, commenced, even though it occurred before its acceptance thereof.” In view of the authorities cited in support of the text, there is reason to doubt a meaning as broad as that claimed by appellee. The text takes for its support Lightbody v. Insurance Co., 23 Wend. 18; Kohn v. Insurance Co., 1 Wash. C. C. 93. In both of these eases the policies were executed, but not delivered, and there wa,s held to be a completed contract of insurance. Neither case allows the contract or the liability of the company to antedate the policy. The author also cites Insurance Co. v. Ruggles, 12 Wheat, (erroneously cited 1 Wheat.) 408. The case malíes no holding whatever on a question like the one at bar. It is a fact in the ease that the loss occurred before the policy was effected, but no question is made of that fact affecting'the insurance because the policy was not in force. The case turned on the misconduct of the master of the sloop that was insured. Appellee also refers to Keim v. Insurance Co., 42 Mo. 38. In that case the application was filed in the office of the secretary of the company February 9. The policy was made [341] out and was to take effect at noon of that day, and the application and policy were permitted 'to remain in the office of the secretary. A loss occurred February 14, and the policy was held in force. Baldwin v. Insurance Co., 56 Mo. 151, is also cited. In that case the application was accepted and the policy made out, but held for the payment, of the premium, which was not paid' till after the loss; and it was held that, after the payment of the premium and the delivery of the policy, the contract related back to the date of the policy, even though the company had no knowledge of the loss. In short, there is no case coming to our notice that holds to the rule of appellee’s contention. In fact, we do not find a case where the question is considered as to a company being liable on a policy where an acceptance of the application was necessary to complete the contract,' and 'the application had not been received when the loss or accident occurred, that an acceptance afterwards is held to relate back to the date of the application. Such a rule would be violative of all general rules governing the tailing effect of contracts. There are cases in which recovery has been sustained for losses occurring before the policies issued, but they all turn on a different state of facts from this case. In such cases the contract of insurance was complete without the policy, and the policy was to issue in pursuance of such a contract. In 2 May, Insurance, section 400, it is said that the policy, if delivered, takes effect from its date, unless it be otherwise stated. That seems to be the iiniform rule where not otherwise provided. It is thought that the fact that the policy provides that the application is made a part of the certificate favors appellee’s construction, but we think not. Nothing in the application or certificate indicates such an intent. The obiect in making the application a part of the certificate is to know the intent of the parties, by construing the two together, as they [342] are largely dependent instruments. We think, under the undisputed facts of the case, there can he no recovery, and the judgment must stand reversed.