Feinberg v. Aetna Life Insurance

YORK, J. The complaint in this case alleges that on June 18, 1931, the defendant, in consideration of the premiums therein agreed to be paid by the insured, issued its policy of life insurance to one Samuel Feinberg. The death of Feinberg is then alleged; that the plaintiff became entitled to the sum of $10,000; that demand for payment of said sum had been made and “that each and every condition stated in said policy has heretofore been performed in accordance with the terms thereof before the commencement of this action”.

Defendant in its answer admitted the issuance of said policy of insurance for and in consideration of the premiums therein agreed to be paid; denied that any sum became due plaintiff from defendant; denied that said policy ever became effective; and as a special defense alleged that the policy was delivered to insured by defendant for examination only; that, among other things, the policy provided that it should not become effective until the first premium was paid during the good health of the insured and that said premium was never paid during the lifetime of the insured or at any other time, and that said policy never became effective.

On the issues thus formed the cause was tried, the jury returning a verdict in favor of plaintiff for the sum of $10,000. From the judgment entered pursuant to the verdict defendant appeals.

It appears from the record before us that in the latter part of May, 1931, W. L. Ewing, an assistant general agent of [373]the defendant company, talked to Samuel Feinberg, the insured, at Metro-Goldwyn-Mayer Studios where Feinberg was employed as manager of the musical department, and at the same time talked to Lew Smith, an employee in the same department, regarding their taking out life insurance policies with his company. As result, both men were examined by the company’s doctor on or about June 1st, at which time Feinberg signed an application for a $10,000 policy of life insurance, which application was accepted by Ewing and forwarded by him to the home office of the company at Hartford, Conn. Thereafter, the home office asked for further information regarding the insured’s weight, and on June 5th Feinberg sent this information to the agent Ewing, and on June 18th the home office of the defendant company issued to said Feinberg a policy of life insurance in the sum of $10,000, at the same time issuing a similar policy to Smith. Both policies arrived in the Los Angeles office of the defendant about June 22; 1931, but were held by the agent Ewing in his desk in the Los Angeles office of defendant until they were delivered to Lew Smith. On the day Mr. Ewing went to the studios to deliver the policies, Mr. Feinberg was not there, and Ewing delivered the Feinberg policy to Smith, who signed a “receipt for policy contract delivered for examination’’ without reading the same; Smith in turn delivered the policy to Feinberg without mentioning that he had signed the receipt. The record without dispute shows that a few days after Mr. Ewing left the policies with Smith, Ewing returned and picked up Smith’s policy.