Gray v. Stone

143 S.W. 114, 102 Ark. 146, 1912 Ark. LEXIS 12

• Court: Supreme Court of Arkansas
• Decided: January 22, 1912
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). The undisputed testimony shows that the two policies of insurance applied for were ■ written, delivered to and receipted for by Stone and his wife, and the note sued on executed in payment of the premium. That neither of said policies was ever returned or offered to be returned by appellee to the agent of the company or to the company itself, and that he in fact refused to return the policies or either of them and kept them; neither did he make complaint to the company or to the agent at all until after his note became due, and then only as to his own policy, contending that his age was incorrectly set out therein. This complaint was made more than six months after the application was made and long after the delivery of the policies.

The insured should examine his policy upon its delivery to him, and is bound to do so within at least a reasonable time thereafter and to reject it if it is not what he contracted for; and if he fails to do this, he will be deemed to have accepted it, and can not avoid liability for payment of the premium note. Remmel v. Griffin, 81 Ark. 269; Smith v. Smith, 86 Ark. 285.

He made no objection to this form of policy issued to his wife, nor did he offer, until long after the premium note was due, to surrender or return this policy, and he declined and refused, he says himself, to return the policy issued upon his own life, after he discovered and notified the company of a mistake made therein as to his correct age.

It is also undisputed that appellant paid to the insurance company the amount of money required for its first premium on the policy, that they were duly issued and delivered, and the company, not having offered to return the premium and cancel the policy after it was notified of the incorrect agemontained therein, was bound by the terms of the policy to its payment without regard to the correctness of the age. Minneapolis F. & M. Ins. Co. v. Norman, 74 Ark. 190, 193; Bloom v. Home Ins. Agency, 91 Ark. 367.

If appellee told the agent, at the time of making his application for insurance, his correct age, as he claims to have done, and it was written by the agent in the application, by mistake or otherwise, incorrectly, the company would, nevertheless, be bound to the payment of the policy issued and delivered thereon, the knowledge of its agent, authorized to solicit insurance and fill blanks, being regarded the knowledge of the company. Insurance Co. v. Brodie, 52 Ark. 11; Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; Mutual Reserve Fund Ins. Co. v. Farmer, 65 Ark. 581.

In any event, appellee had the right to pay the premium upon any sort of a policy upon the life of his wife that she would accept herself, and, not having returned nor offered to return the policy, which was delivered to her and accepted by her with his knowledge, after ascertaining that same was not payable to him as beneficiary as he understood it should be he can not avoid payment of the premium note for failure of consideration.

The court erred in refusing to give appellant’s requested peremptory instruction. The judgment is reversed, and the cause remanded with directions to enter a judgment for the amount of the note sued on.