Mid-Continent Life Ins. Co. v. Dees

1954 OK 20, 269 P.2d 322, 1954 Okla. LEXIS 488

• Court: Supreme Court of Oklahoma
• Decided: January 19, 1954
• Docket: 34060
• Status: Published

Opinions

' JOHNSON, Vice Chief Justice.

The parties will be referred to herein as they appeared in the trial court.

The policy in suit is alleged to have been issued by the defendant upon the life of Dudley Lancaster, payable to Vincent Dees, business partner, if living; otherwise to estate of insured, who, it is claimed, died while the insurance so provided was still in force and effect. The defense of defendant is that there was never any sufficient delivery of the policy.

The record discloses that on February 20, 1948, insured made an application through defendant’s agent, C. M. Hubbard, for a $5,500 insurance policy on his life, which is the policy in question. On March 10, 1948, insured paid defendant’s agent $90.31, the first year’s premium. Under the terms of the policy, the agent was authorized to accept premiums on the company's policies not in excess of $10,000, and the fact that he did accept insured’s premium is unquestioned. The insured’s application, together with the doctor’s favorable report on insured's physical condition, was received and the company (defendant) issued its policy, effective as of March 16, 1948, in accord with the insured’s application and mailed it to their agent at Seminole, Oklahoma on March 16, 1948. When the policy was issued and mailed to the agent unconditionally for delivery to insured, the insured was alive and apparently in good health. Admittedly, the insured thereafter was asphyxiated by gas fumes and was found dead on March 17, 1948, the date that the agent says the policy was delivered to him by the Seminole, Oklahoma postal authorities. No conditions, restrictions or instructions other than such as were contained in the application and policy, accompanied the policy when received by the agent.

It was provided in the application that the company (defendant) would not 'become liable upon the application until the policy was issued, the first premium actually paid to the company or its authorized agent and the policy delivered to and accepted by the applicant during his lifetime and good health.

The admission that the first premium was paid and the policy issued in accord with insured’s application, which constituted insured’s acceptance thereof, leaves only the question of whether the policy was delivered during applicant’s lifetime, which, if not so delivered, constitutes a defensive contingency, unless waived.

Defendant argues that depositing the policy in a postage prepaid envelope addressed and mailed to its • agent is not a delivery to the insured person.

This conception of what constitutes delivery may hold true in some instances, but not where the first premium has been paid, the application has been approved, the policy executed in accord therewith thereby completing the insurance contract, and nothing remains to be done but to deliver the policy to the insured. In such case, the mailing of the policy to the agent unconditionally while insured was in good health and alive, to be given by him to the insured person constitutes delivery in law, manual delivery, or further acceptance, being unnecessary.

While this is our first occasion to apply this rule, yet the rule has been applied many times in other jurisdictions. Unterharnscheidt v. Missouri State Life Ins. Co., 160 Iowa 223, 138 N.W. 459, 45 L.R.A.,N.S., 743 and cases cited therein; Acacia Mut. Life Ass’n v. Berry, 54 Ariz. 208, 94 P.2d 770; Jones v. Metropolitan Life Ins. Co., 158 Misc. 466, 286 N.Y.S. 4; Tarlton v. De Veuve, 9 Cir., 113 F.2d 290, 132 A.L.R. 343, certiorari denied, De Veuve v. Tarlton, 312 U.S. 691, 61 S.Ct. 710, 85 L.Ed. 1127; Republic Nat. Life Ins. Co. v. Merkley, 59 Ariz. 125, 124 P.2d 313; 29 Am.Jur. Insurance, Sec. 152; 44 C.J.S., Insurance, § 265(5) c.

In the Merkley case, supra, it was" held that the words “ ‘delivered to and received by insured’ ” in life policy, mean the same thing and do not imply actual manual delivery; that it is sufficient delivery of a life policy when the application is approved and policy issued in accordance with the plan and for the amount of the application and mailed by the insurer to its agent for delivery to the insured, and/or that a policy' is “constructively delivered” when it is mailed to an agent unconditionally and for the sole purpose of delivering to insured, even though the agent does not actually deliver the policy to the insured, and notwithstanding a stipulation that insurance should not take effect unless the policy was .“delivered to and received by insured during his lifetime.”

Further array and discussion of authorities would be an unnecessary waste of time as the authorities cited sustain the rule.

The record amply sustains the verdict of the jury and judgment based thereon. The judgment is affirmed.

WELCH, DAVISON, O’NEAL and BLACKBIRD, JJ., concur. HALLEY, C. J., and CORN, ARNOLD and WILLIAMS, JJ., dissent.