Waggoner v. Burg

The action is by Waggoner on a note for $411.20, executed to plaintiff, payable to him "on delivery of policy after date." The petition alleged that by "on delivery of policy" was meant a policy on the life of defendant, Burg, in the Citizens' Life Insurance Company of Louisville, Ky., and alleged that such policy was delivered to defendant some months before the filing of this suit, and on demand defendant had refused to pay, etc.

Defendant pleaded by demurrers, denial, and failure of consideration, alleging: That about September 6, 1907, defendant, at the instance of S. J. De Pew, who represented himself as the agent of the Citizens' Life Insurance Company, signed an application for a policy of $10,000, and at the same time, to evidence the amount to be paid as a premium on the policy, as a part and parcel of the application, gave the note sued on, upon the statement that the note should not be used until such policy should be delivered to defendant within a reasonable time and accepted by him, in which event only the note was to be binding. Reasonable time was alleged to be 30 days. That about a month afterwards defendant was informed by De Pew, with whom the agreement for insurance was made, and to whom the application and note were delivered, that the Citizens' Life Insurance Company had refused the application, and that he could not obtain the policy, and he thereupon abandoned his application; and it was agreed between him and De Pew that it was abandoned, by reason whereof defendant was released from the note. That at this time defendant did not recall the fact that he had given the note, and then did not insist on its surrender to him. That upon said refusal of the Citizens' Life Insurance Company to insure defendant it became necessary for defendant to obtain other insurance, and De Pew thereupon obtained for him, about October 14, 1907, a policy in the Great Western Life Insurance Company for the sum of $10,000. That long afterwards, about April 1, 1908, plaintiff brought to defendant a policy for $10,000 in the Citizens' Life Insurance Company; but defendant informed plaintiff of the situation and facts and declined to accept it. That plaintiff urged defendant to take this policy also; but defendant informed him he could not carry more, and plaintiff went away with the policy, but called again, and, over defendant's objection, left the policy in defendant's office. That thereafter defendant was informed that plaintiff had possession of the note, and that its collection would be sought, and that it was still in existence; and it was then recalled to his mind that it had not been returned to him, as it should have been. Wherefore plaintiff ought not to recover. That in no event should defendant be held on the note, because his application was made about September 6, 1907, and he failed to obtain the insurance contemplated and applied for; and because, further, he failed to receive it in a reasonable time, in this: That the policy was not attempted to be delivered until about seven months after the application, when it should have been delivered within 30 days, and he was thereby induced to believe that it would not be issued him, and to protect his family he was then compelled to procure other insurance; and, further, because the note was given to evidence the first year's premium on a policy to be issued under defendant's application of September 6, 1907, and such note, in the event of payment, was to secure defendant the benefit of a full year's insurance, and such policy did not become effective until a policy was issued and delivered to defendant. That no attempt was made to deliver one until about April 1, 1908, and that then a policy was tendered him, dated October 14, 1907, by the terms of which the year's insurance began on October 14, 1907, and defendant would be required to pay for insurance from October 14, 1907, to April 1, 1908, a period of time that, in fact, the policy was not in force, and defendant would not have been protected thereby, by reason of which the policy contemplated by said note has never been issued and tendered to defendant.

The cause was tried by the judge, who overruled the demurrers and gave judgment for the defendant.

The first assignment complains of part of the testimony given by defendant Burg, which was: "He [De Pew] said to me: `Not only I'll give you another insurance policy that will be the equal of this, but will also see that your health record is corrected, and you will be examined again. Then you are at liberty to take it, or not.'" This statement, if any, was made by De Pew to defendant after defendant had been "rejected" by the Citizens' Life Insurance Company, as defendant testified, or "postponed," as plaintiff testified. De Pew was subagent of plaintiff, Waggoner, who was the general agent of the Citizens' Life Insurance Company. De Pew obtained defendant's original application, which the company "rejected" or "postponed." He was still working for or with Waggoner when he procured defendant to take a policy for like amount in another company, the Great Western Insurance Company, in which transaction he made the statement or promise complained of by this assignment. There was testimony which tended to show that De Pew and Waggoner acted together in obtaining this other policy for defendant, in lieu of the one that had become defunct in the Citizens' Life, though Waggoner was admitted not to have been present when De Pew made the statement or promise in question to defendant. However, there was testimony which tended to show that Waggoner knew of it.

Several months after defendant's first application to the Citizens' Life had been refused, and after the time said statement by De Pew was made, and De Pew's connection with Waggoner had ceased, Waggoner, with a physician, called at defendant's office with what in effect was a renewal application to the Citizens' Life, but which was entitled "Certificate of Health," which defendant signed, and at same time was re-examined. This transaction defendant testified he thought was being done in pursuance of what he had been told by De Pew would be done to have his health record corrected, and for that purpose only. He testified to this, and that when they came to his office he said to them, "Finally, my health record will be corrected," and he testified that "he took it what was done was keeping their word that his record would be corrected."

The trial court evidently accepted as true the testimony of defendant, Burg, throughout as against that of plaintiff. It is not our province to pass upon the credibility of the witnesses, nor the weight to be given their testimony, however different our conclusions might have been. The court had the right to believe that Burg stood the examination and signed the paper under the impression, caused by what De Pew had said to him, that its purpose was simply to straighten out his health record.

However, the question is: Was the statement or promise of De Pew admissible testimony against plaintiff?

If we take as true the testimony of Burg, as the trial court did, De Pew and plaintiff acted together in placing him in the Great Western Life Insurance Company; and it was inferable from his testimony that plaintiff knew all along of what De Pew had told defendant in the transaction of getting him a policy in the last-named company. It appears that after the health certificate had been signed a policy came, which was brought by plaintiff to defendant, who testified: "The first time he brought it to me he asked me to consider whether I couldn't take it; and the next day he came again and asked me whether I had decided to take it, or not. * * * Waggoner used these words: `Take that policy and see if you cannot see your way clear to take it.' * * * I did not request him to leave it with me. I declined. I let the policy that he left at my office lay there and asked him — expected him to take it back." This conduct of Waggoner on these occasions, if true, was inconsistent with the idea that he considered defendant bound to accept the policy, but indicated that he knew of something which relieved defendant from having to accept it. Otherwise he would naturally have demanded an acceptance of it and of the payment of the note, given for the premium, which was to become due when the policy was delivered. The court had the right to conclude, as a fact, that Waggoner had really been a party to or knew of the statement made by De Pew. Under these circumstances, there was no error in admitting and considering the testimony. The note sued on was taken to plaintiff, and was held by him as his property. What has been said disposes also of the fourth assignment.

The second and third assignments complain of the judgment, (1) because it is against the weight of the evidence; and (2) because there is no sufficient evidence to support it. These assignments are not briefed with any sufficient statement explanatory of wherein the evidence is too weak or insufficient.

The sixth assignment is such as requires a resort to the testimony, in order to pass on it; and there is no statement whatever in the brief in connection with it. Judgment affirmed.