Johnson v. Life Ins. Co.

ON MOTION FOR REHEARING. We do not understand that our decision in the above case is in conflict with the holding in State ex rel. v. Robertson, 191 S.W. 989. It was there held that there was no insurance contract created in the receipt or elsewhere. True, in that case the Supreme Court said that the receipt would have been a completed contract had the entire application been approved. But there are a number of things which, in our view, distinguish the present case from that. In the Robertson case the application refers to the receipt and says the policy is applied for "in accordance with theprovisions of the receipt of date and number according to this application which I hereby accept and agree to the conditions hereof." This reference to the receipt in the application, which the insured in that case signed, made the receipt a part of the insurance contract had the application been approved. But no such reference was made to the receipt in anything the insured herein signed or agreed to. After he executed the application and gave his note for the premium, the agent handed him the receipt and then pinned the stub of the receipt, which was an abstract thereof, to the application when the agent later sent it to the Company. This was all that was done to make the receipt either a separate, independent or completed contract in itself, or a part of the insurance contract contemplated by the application. As stated in the opinion, the receipt never became a separate, independent contract of insurance in itself, for the only insurance contemplated in it is the insurance created by the application and policy, and these two say there was to be "no contract of insurance until a policy shall have been delivered" and that the two — application and policy — "shall constitute theentire contract." So that the insured's mere reception, without more, of the receipt when it was handed to him by the agent after the application for the only insurance contract in contemplation had been executed and paid for, does not, it seems to us, make the receipt a separate, independent and completed contract of insurance in itself; but the most that can be claimed for the receipt is that it became part of the entire insurance contract. However, even if it did, still the provision in the receipt upon which defendant relies as to when the insurance was to begin does not conclusively control, because of the directly contrary provision elsewhere in the contract, made up of the application and policy, namely, that there should be "no contract of insurance" until the policy was delivered and that the application and policy should constitute the "entire contract." Neither of these provisions was present in the Robertson case.

It is said the statement in the opinion that there was no notice given insured of the approval of the policy until it was delivered to him is erroneous. The agent, without testifying that he deposited in the mails a properly addressed and stamped envelope containing a letter notifying insured that the policy had been issued and would be delivered the next time he came around, merely attempted to say that he "wrote" plaintiff to that effect. This testimony, upon objection, was stricken out by the court. Hence we said there was no evidence of notice in the record until the notice given by delivery of the policy.

The motion for rehearing is overruled. All concur.