ALICE W. MCCLELLAND, Appellant,
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent.
APPEAL by the plaintiff, Alice W. McClelland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 22d day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Onondaga Trial Term.
A. C. Stevens and B. J. Shove, for the appellant.
Jerome L. Cheney, for the respondent.
The action is upon a policy of life insurance payable to plaintiff, issued upon the life of her husband, Eugene B. McClelland, for $1,000, dated January 12, 1910. McClelland made a written application for this policy on January twelfth when he was in good health. It was delivered on January seventeenth and the first premium paid on the next day. On the twelfth, after signing the application, McClelland went to New York city from his home in Syracuse and returned on the evening of the fourteenth, ill with a cold and grippe. He was put to bed, a physician summoned, and did not again leave his house; his death occurred on February seventeenth.
Defendant's local agent at Syracuse, who had secured the application, called at McClelland's store on Saturday, the fifteenth, with the policy ready for delivery, and was then informed that McClelland was at home ill with what was thought to be a slight attack of the grippe. He called again on Monday, the seventeenth, and was again informed to the same effect. He then delivered the policy to a clerk in McClelland's employ at his store, who put it in McClelland's safe, where it remained until after his death. This clerk promised to, and did, secure McClelland's check for the first premium on the
following day, the eighteenth, and the agent called at McClelland's store on that day and received the check. He was then informed that McClelland was still ill and confined to his house in bed with the grippe, but that his physician did not consider the illness serious. Pneumonia developed, which the physician discovered early in February. Inflammation or degeneration of the muscular tissues of the heart followed, which was the immediate cause of death. This inflammation was preceded by gradually developing broncho-pneumonia, also described as atypical pneumonia because lacking some of its usual features, such as lung involvement. Although the presence of pneumonia had not been discovered by the attending physician on January eighteenth, he testified upon the trial that in his opinion, based upon the subsequent history of the case, McClelland was suffering from atypical pneumonia on that day.
The application for the policy which McClelland signed contained the following: 'All the following statements and answers, and all those that I make to the company's medical examiner in continuation of this application, are true, and are offered to the company as an inducement to issue the proposed policy, which I hereby agree to accept, and which shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been issued during my continuance in good health.' This application was subsequently attached to and became a part of the policy contract.
It was the claim of plaintiff at the trial that the delivery of the policy and the acceptance of the first premium by defendant's agent, with knowledge that McClelland was ill at home, was a waiver of the condition that it should not 'take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been issued during my continuance in good health.'
A nonsuit was granted at the close of plaintiff's case, the trial court holding that, although the agent may have had power to bind the company by waiver, the evidence did not show that the agent had knowledge or notice that McClelland had the serious illness, pneumonia, which he in fact had.
The policy contained these ...