Opinion
Opinion delivered January 19, 1931.
1. INSURANCE — SIGNATURE TO APPLICATION FOR BENEFIT CERTIFICATE. — Where an application for a benefit certificate was signed by another for the insured, its effect was as binding upon the insured, so far as the representations and warranties were concerned, as though he had signed it himself. 2. INSURANCE — DEATH BEFORE DELIVERY OF POLICY. — Where a benefit certificate provided that it must be delivered during the lifetime of the member while he was in good health, and that there would be no liability if he died within a year thereafter, the insurer was not liable thereunder where insured died before the certificate was delivered. 3. INSURANCE — PENALTY AND ATTORNEY'S FEES. — No liability was incurred for the statutory penalty and attorney's fee where insurer tendered the full amount due under a policy or benefit certificate.
Appeal from Pope Circuit Court; J. T. Bullock. Judge; modified and affirmed.
H. M. Jacoway and Lee Miles, for appellant.
Robert Bailey and Hays Priddy, for appellee.
STATEMENT OF FACTS.
This appeal is prosecuted by appellant to reverse a judgment on its beneficiary certificate issued to John S. Parton on February 11, 1909, in which appellee was named beneficiary. Parton made application for membership in the Sovereign Camp Woodmen of the World on the 23rd day of January, 1909. The certificate was issued to him on February 11, 1909, in the maximum of $2,000 with Florence Parton, appellee, named as beneficiary.
The original monthly assessment was $3.55, which was increased from time to time, but after December 31, 1919, he refused to pay the increased assessments. In 1929, the appellant company proposed to all its members that they might change the old certificates with the lien and interest charges against them for a new certificate in the full face amount of the original certificate and without lien and interest charges upon the payment of a material increase in rates. The exchange preferred was specifically made contingent upon the member being in good health at the time of the exchange and provided that, if the death of the member occurred within a year thereafter from a disease with which he was afflicted at the time of the exchange, he forfeited all rights under the new certificate and his claim against the association would be settled under the terms of the old certificate.
Appellant received an application purporting to be from the member, John S. Parton, for an exchange of certificates on May 2, 1929, in which it was warranted that he was in good health, and that there was nothing in his habits or condition that was liable to impair his health or shorten his life, and in which it was provided that if he died within one year from the date of the application as the result of any disease with which he was then afflicted, his beneficiary could not receive benefits under the new certificate, but would be entitled to receive only the benefits due under the old certificate. The exchange was made without additional medical examination, appellant relying upon the truth of the warranties in the application and the provisions in the new certificate, which was issued on May 28, 1929. Parton died on June 1, 1929, before receiving the certificate.
The answer denied liability on the new certificate, set out the amount due by the member on the old policy and that the member had misstated his age, in procuring the first certificate, being one year older than he stated he was; that the total amount of benefits under the old policy was $1,043.95, which it tendered in payment of all liability.
It appeared from the testimony that Parton did not sign the application for the new certificate, and did not consult with the man who did sign it at the suggestion of his wife and the agent procuring the exchange of policies. W. D. Eakes, who was keeping the old certificate for Parton, signed the application for the new certificate without having seen or talked with Parton for the six months previous; said he did not know what the physical condition of Parton was at that time, but that he was authorized to sign Parton's name to the application for the new certificate by Mrs. Parton, the beneficiary, and the soliciting agent for the association procuring the exchange of policies, by the name of Jones.
The application also provided that both it and the benefit certificate, with the law, by-laws and constitution of the association, constituted a part of the contract. Among the provisions of the contract was one in the bylaws requiring the certificate to be accepted by John S. Parton over his own signature, witnessed by the Camp clerk. The new certificate was issued and mailed on May 28, 1929. It provided: "I have read the above certificate and accept the same and warrant that I am now in good health and have not been sick or injured since the date of my application," with a blank for signature and the word "member." This indorsement was not signed, but the Camp clerk, G. C. Bewley, wrote on the certificate, "Received after death."
The warranty on the application reads: "I certify, warrant and represent that I am in good, sound bodily health, and that there is nothing in my habits or condition that is likely to impair my health or shorten my life. I agree that this representation is a strict warranty, and that, if the same shall prove in any respect untrue, or if my death occurs within one year from the date hereof, as the result of any disease from which I am now afflicted, none of my beneficiaries shall be entitled to receive benefits on account of the new certificate, but instead will be entitled only to such benefits as may be due under my present certificate."
The member, Parton, was afflicted with Bright's disease for about three years before his death, and was under a doctor's care from February 2, 1929, until his death. He was very feeble at the time the application was signed, and died three days after the certificate was issued and before it was delivered.
Suit was brought by the widow on the new certificate, tender being made by the company of the actuarial liability under the old policy, the alleged misrepresentation of the age of insured of one year being considered and the amount of $301.65 deducted on that account. The jury made a special finding against any misrepresentation of insured's age and returned a verdict in appellee's favor on the new certificate and the court entered a judgment for the full amount thereof with penalty and attorneys fees, from which this appeal is prosecuted.
(after stating the facts). Appellant contends that there was no completed contract for the new insurance and that the undisputed testimony shows, on account of the false warranties, that there could not have been any liability on the part of the company under the new certificate; and that the court erred in not so directing the jury.
It is not questioned that the amount tendered by appellant company in settlement of its liability under the first or old certificate was not the correct amount due thereunder after deduction of charges properly made against it, except as to the $301.65 deducted for misrepresentation of insured's age as one year less than it in fact was. The undisputed testimony shows that the application for the new certificate was not sided by the member or insured, but was signed by Mr. Eakes, who had the old certificate in his possession and was advancing money thereon to the insured; he having signed it upon the suggestion of the beneficiary, the wife of insured, and Jones, the agent of the company employed by the appellant company to effect the exchanges of certificates. Eakes refused to sign the first application until the agent crossed out the words "while in good health," and later signed the application that was presented containing the words that had been stricken out of the first application upon the statement by Jones that it would be all right to do so.
If it be regarded that the contract for the exchange of certificates was not completed, there certainly could be no liability of appellant on the new certificate sued on. It is undisputed that the member did not sign a receipt for the new certificate, and also that he died before the delivery of same, the clerk of the Camp, whose duty it was to make such delivery having indorsed thereon, "received after death."
Without regard to whether the application for the new certificate was in fact signed by the insured, or whether his name was signed thereto by Eakes upon the suggestion of his wife, the beneficiary, or the soliciting agent, not personally present at the time; if it be regarded a valid signature its effect was as binding upon the insured, so far as the representations and warranties were concerned, as though he had signed it himself. The undisputed testimony shows that he had been suffering from Bright's disease for some time, knew such to be the case, and was confined to his bed much of the time during the three months before his death, and that he died of this same disease within three days of the date of the issuance of the new contract, which was never delivered to him.
The new certificate provided it must be delivered during the lifetime of the member, while he was in good health, and that if his death resulted within a year thereafter from a disease from which he was suffering at the time of the application for and issuance of the certificate, there would be no liability under it. The undisputed testimony also shows that the policy was not delivered at all, that the insured's health was not good at the time the application was made; that he in fact died before the policy was delivered, within two or three days of the date thereof, of the same disease from which he had long suffered. There was necessarily no liability on the part of appellant company under the new certificate, and the court should have directed a verdict in its favor accordingly.
Since it is not disputed that appellant company offered to pay and tendered the full amount due under the first or old policy "less $301.65 wrongfully deducted on account of the alleged incorrect statement of the insured's age, the jury having made a special finding to the contrary on the point," in discharge of its liability thereunder, judgment should have been rendered for such amount, $1,061.85 and said $301.65 wrongfully deducted as aforesaid without penalties and attorney's fees, the statute providing for such penalties and attorney's fees not being applicable in cases of this kind, and the amount sued for was not recovered anyway.
The judgment will therefore be modified, reducing it to the said amount shown to be due under the terms of the old certificate, $1,363.50, and as modified, will be affirmed. It is so ordered.