APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment reversed.
Messrs. Ellinwood & Ross, Mr. Jos. S. Jenckes, Jr., and Mr. Everett M. Ross. for Appellant.
Mr. Frank W. Beer and Mr. Wm. G. Christy, for Appellee.
This is an appeal by New York Life Insurance Company, a corporation, hereinafter called the company, from a judgment in favor of Charles Lawrence, as administrator of the estate of [56 Ariz. 29] Thelma Lawrence, hereinafter called plaintiff. The ultimate facts on which the action is based are not in dispute, and may be stated as follows:
On or about July 8, 1938, Charles Lawrence and Thelma Lee Lawrence, husband and wife, made applications to the company for a joint policy of life insurance, in the sum of $2,000, with double indemnity in the case of death resulting through accidental means. The applications each contained the following provision:
"It is mutually agreed as follows: 1.... that if the applicant at the time of making this application, pays the soliciting agent in cash the full amount of the first premium for the insurance hereby applied for, and so declared in this application and receives from the soliciting agent a receipt therefor on the form attached as a coupon to this application and corresponding in date and number therewith, and if the Company, after medical examination and investigation, shall be satisfied that the applicant was, at the time of making this application, insurable and entitled under the Company's rules and standards to the insurance, on the plan and for the amount hereby applied for, at the Company's published premium rate corresponding to the applicant's age, then said insurance shall take effect and be in force under and subject to the provisions of the policy applied for from and after the time this application is made, whether the policy be delivered to and received by the applicant or not...."
The soliciting agent was Van B. Brinton. Plaintiff paid to him at the time of
the application the sum of $10 and promised to pay $8 more in the next week, whereupon Brinton issued to him a receipt which contained, among other things, the following provision:
"Received from Chas. Lawrence this 9 day of July, 1938, the sum of Eighteen 00/100 -- Dollars ($18.00), in connection with an application for insurance in New York Life Insurance Company, said application corresponding in date and number with this receipt and containing said applicant's declaration that he has [56 Ariz. 30] paid the sum hereby receipted for, and that he assents to the terms of this receipt as follows, to-wit:
"First. If the applicant paid the soliciting agent in cash at the time of signing the application the full amount of the first premium for the insurance therein applied for, and so duly declared in his application, and there and then received from him this receipt, and not otherwise, the Company shall be bound in accordance with the agreement which is contained in the application and printed on the reverse side of this receipt for the convenience of the applicant.
"Second. Except when each and all the conditions obtain for the insurance taking effect coincident with the signing of the application, then --...
"(b) If within sixty days from this date the Company fails to offer to deliver a policy to the applicant, or offers to deliver a policy upon payment of the balance of the first premium and the offer is refused, the Company will return said sum to the ...