Mutual Sav. Life Ins. Co. v. Hall , 254 Ala. 668 ( 1950 )

SIMPSON, Justice.

The plaintiff, Mrs. Hall, sued the defendant insurance company on a policy of insurance, insuring the life of Andrew Myrick. It is alleged that the policy was issued January 22, 1945; that the insured died as the result of an accident December 12, 1947; and that said policy is the property of the plaintiff, she being named as the sole beneficiary therein. She claimed, and recovered, under the double indemnity feature of the policy.

The pleas on which issue was joined were lapse of the policy for nonpayment of premiums and non est factum. While the greater part of the evidence related to the issue of payment of premiums, and the greater number of assignments of error arise out of rulings on evidence on this issue, we are met at the threshold with the question presented by the plea of non est factum, solution of which, we think, disposes of the appeal.

Plaintiff undertook to establish the contract of insurance by. secondary evidence, first laying the predicate of loss of the original policy. In doing so she introduced a previously issued policy upon the life of Myrick, which, admittedly had lapsed, and undertook by evidence aliunde to show that the suit policy, bearing a number assigned to it by defendant, was the same as to terms, conditions and provisions as the previously issued policy so introduced. In substance the evidence showed that Myrick, the insured, came to his death by accidental means, and thereafter plaintiff found among his papers a policy upon his life, naming the plaintiff as beneficiary, and bearing date of issue August 2, 1943 (the previously issued policy above mentioned). Also among his papers were several receipt cards tending to evidence payment of weekly premiums upon a policy of another number (the policy sued upon).

Plaintiff’s witness Young testified that after the law firm of which he was a member had been employed by plaintiff in connection with her claim upon said policy, witness contacted one Cooper who, he testified, was a district manager or general agent of the defendant, and talked with Cooper concerning the matter. Over repeated objections interposed by defendant, this witness was permitted to testify that Cooper stated to the witness “that the only difference between policy ‘811’ and policy ‘427’ was -the number was different and the date was different; he statéd that Mrs. Lessie Hall was the beneficiary in both policies. That was sometime in April, 1948, when I was in his office.” (Italics supplied.) The same, or substantially the same, statements were several times testified to by this witness on this examination. Defendant’s objections were upon the apt ground that the statements attributed to Cooper related to past transactions with which he had had nothing to do, about which he had no knowledge, and concerning which he was without authority to bind the company.

The evidence is without dispute that the defendant did issue to Andrew Myrick a policy of life insurance dated January 22, 1945, and that this policy was, as to terms and conditions, the same as the policy previously issued and offered in evidence by the plaintiff. But defendant’s evidence tended to show that the beneficiary named in the later policy was Mattie Lee Gamble, '“as mother” of the insured. Defendant ■offered in evidence the original application for this policy, signed “Andrew Myrick,” .and designating “Mattie ' Lee Gamble, mother” as the proposed beneficiary. The number assigned to this application and the number on the policy in suit are the .same. Mr. Cooper, defendant’s field supervisor or district manager, testified as a witness for the defendant. He denied having made the statement attributed to him by .Mr. Young that “Mrs. Lessie Hall was the beneficiary- in both policies.” He testified .that he had nothing whatever to do with the making or issuing of policies, that this was done in the home office of the company and, in effect, that he had no personal knowledge of the transaction with respect to the application for and issuance of the policy involved. His authority was not otherwise shown to extend beyond that of general supervision of agents in his district, in the matter of soliciting applications and collecting premiums.

In the absence of evidence on the part of anyone purporting to have ■seen the original policy, or evidence otherwise tending to establish the name of the beneficiary actually appearing on the poli■cy, the statement or declaration attributed by the witness Young to the agent Cooper vitally touched the main issue in the case. In our judgment the admission of such •evidence was reversible error. “ * * * To be admissible against the principal, the declarations of an agent must be within the scope of the authority conferred upon the agent and made while in the exercise of his authority. Where the declarations of an agent are merely narrative of a past transaction, they are hearsay and not competent against the principal. * * * ‘The admissions of an agent, to bind his principal, must be made at the time of doing some act in the execution of his authority.’ ” Bank of Phoenix City v. Taylor, 196 Ala. 665, 667, 72 So. 264, 265. See, also, Atlanta Life Ins. Co. v. Bolden, 239 Ala. 231, 194 So. 653; Wade v. Brisker, 233 Ala. 585, 173 So. 64. Cooper’s purported statement was not made at the time of doing an act in the exercise of his authority; it was made, if so, at a time long after the transaction to which it related. The statement was therefore hearsay and inadmissible.

True, plaintiff offered evidence showing her relationship to the insured; that she, as his aunt, had taken him into her home and care when he was a small child, where he remained until the time of his death; that Mattie Lee Gamble, the person named, as beneficiary on the application for the suit policy, as the mother of insured was not the insured’s mother but his aunt, and that there was no reason why insured should have made her his beneficiary and that Mrs. Gamble had never heard that he had done so. But such evidence, while affording an inference that the designation of Mrs. Gamble as beneficiary on insured’s application was the result of a mistake, falls far short of establishing the fact that Mrs. Hall, the plaintiff, was the beneficiary named in the lost policy. It is to be borne in mind that this is not a suit upon a contract to insure, or a proceeding to reform a contract according to the agreement and intentions of the parties; it is a suit upon a certain executed contract of insurance, undertaken to be established by secondary evidence.

In view of our conclusion with respect to the primary issue in the case, we deem it unnecessary to treat those assignments of error relating to the secondary issue of lapse vel non. Without committing ourselves upon that issue, we observe that the evidence adduced and relied upon by the plaintiff on this issue leaves much to be desired in conclusive, probative force.

For the error indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded.

BROWN, LIVINGSTON, and LAWSON, JJ., concur.