Appeal from the Circuit Court of Peoria County; the Hon.
ROBERT E. HUNT, Judge, presiding. Reversed.
The plaintiff, as successor to Thomson Advertising, Inc. brought suit on a life insurance policy issued by the defendant on the life of a Robert Thomson, late president of the plaintiff, formerly named Thomson Advertising, Inc.
The Manhattan Life Ins. Company defended on the ground that the initial premium was not paid during the life of the insured, as the policy required. The trial court found for the plaintiff and entered judgment against the defendant for $25,000, from which this appeal is taken.
The judgment was based on the court's finding that the Sam J. Stone Insurance Agency, which procured the policy for the plaintiff, had waived payment of the initial premium, and represented and agreed that the payment could be made later, and that the plaintiff relied thereon and refrained from making the payment promptly which it otherwise would have done. It is here contended for the defense that these findings are not supported by the evidence and this requires examination of it.
The policy was of the type called "key-man insurance" and was one of a number of similar policies the plaintiff obtained on the life of its president, some from other companies and some from this same defendant.
It contained a provision that it would not be effective unless the first premium is paid during the lifetime of the insured. This is usually a provision in life insurance policies since a company would not want to insure a life that did not exist, or give anyone reason to try to obtain insurance on a dead man. The policy also contained a statement that none of its conditions could be waived except in writing signed by one of several designated officers of the company.
Notwithstanding these provisions, the plaintiff asserts that the payment was waived orally in a conversation on Saturday, April 20, 1963, between Errett Zendt, one of plaintiff's directors, and Thelma Pierson, office manager of the Stone Insurance Agency. It is undisputed that Mr. Thomson died that afternoon, and the premium had not been paid. In fact, plaintiff mailed a check for the first premium about 9:00 p.m. that night, received in the Stone office on Monday, April 22, 1963.
Mr. Zendt was an insurance broker with years of experience. Therefore, he was put in charge of the insurance program of the plaintiff.
He also had a contract with the defendant, the Manhattan Life Insurance Company, to solicit applications for insurance in Peoria and vicinity, and was authorized to deliver policies sent to him by the company "when the terms and conditions governing such delivery had been complied with." This contract, in evidence as defendant's Exhibit 1, contained this reservation: "No policy shall be delivered save during the applicant's good health and after the first premium shall have been duly settled for."
Thus Mr. Zendt had three positions: as an insurance broker, as a solicitor for the defendant, and as a director of plaintiff. The testimony is undisputed that in this particular case he was acting as broker. He testified that in all his dealings with the policy sued on he acted as broker, and the Stone Agency so considered him. He stated that when he procured insurance at the request of plaintiff, he charged them a brokerage commission. There was no evidence that the insured, Mr. Thomson, had ever seen this policy.
The judgment herein contained a finding that the policy had been unconditionally delivered to Mr. Zendt as the broker and duly authorized agent for plaintiff. This is correct but it conveys a false impression in that it would seem to indicate it was delivered unconditionally to the defendant whereas in fact, it was delivered to Mr. Zendt as the broker procuring a policy for his client. As such, he was entitled to look over the policy and see that it did accomplish for his client what he intended them to obtain. But he could not deliver it to the defendant to put it into effect until the first premium was paid during the lifetime of the insured.
As to the matter of waiver and extension of time, Mr. Zendt had read the policy carefully and thought there were some errors in the premium rates. He telephoned Miss Pierson about 9:00 a.m. that Saturday and told her his observations. He also told her he was trying to contact the fiscal officers of his company but had not been able to do so at that time.
Miss Pierson called him back within the hour and confirmed that the first premium stated by the policy as $2427 was correct. She also testified she told him "if he had his appointment or if he could get in touch with either Mr. Mathias or Mr. Thomson and pick up a check for $2427, the initial premium, and deliver it to me, bring it to me, that the policy would be in full force and effect."
We perceive nothing in this statement nor in anything else in the testimony of Miss Pierson indicating that the provisions of the policy were waived, or that the policy would be in effect even though the first premium had not been paid. Of course, she was a defense witness, therefore we expected the appellee to point out some contradictory testimony to justify the trial court's disbelief of Miss Pierson. Nothing whatever of that kind has been called to our attention. On the contrary, Mr. Zendt, the only other party to the conversation, testified in substance to the same ...