
    Parker v. The Mutual Life Insurance Co. of New York.
    
      Insurance — Life—Payment of first premium during insured’s life — Question for jury — Failure to submit question of delivery of policy, not prejudicial, when — Evidence—Agent’s testimony upon conversation with decedent, admissible— Section 1H95, General Code, inapplicable — Statements made when application taken and policy delivered, admissible — Argument to jury — Conclusiveness of policy recital that premium paid.
    
    1. In action on life policy acknowledging receipt of first premium, it was proper to submit to jury question whether or not first premium had in fact been paid.
    2. In action on life policy, failure to submit question whether policy had been delivered was not prejudicial to beneficiary, where trial judge assumed proper delivery in charging that, if first premium was paid during lifetime of insured, beneficiary could recover.
    3. Local agent of insurance company, not being party to action by beneficiary on life policy, was properly permitted to testify to conversations with decedent at time application for insurance was taken and policy left with decedent, to show whether first premium had actually been paid; Section 11495, General Code, prohibiting testimony of conversations with deceased persons, being inapplicable.
    4. In action on life policy, involving issue whether payment of first premium had been made, evidence in regard thereto was What transpired at time application was taken and policy left with decedent, and any statements made at such time would be admissible as part of res gestae.
    
    5. In action on life policy, involving issue whether first premium had been paid, plaintiff’s counsel could not argue that recital of payment of premium in policy was conclusive, and it was proper for court to order counsel to desist from such argument and instruct jury that payment was necessary.
    (Decided November 23, 1925.)
    Error: Court of Appeals for Huron county.
    
      
      Messrs. Rowley é Carpenter, and Mr. E. M. Palmer, for plaintiff in error.
    
      Mr. G. Ray Craig, and Messrs. Squire, Sanders & Dempsey, for defendant in error.
   Williams, J.

An action was brought in the court of common pleas upon a life insurance policy to recover double indemnity in the sum of $10,000 for the accidental death of Claude Robert Parker, who was killed on or about December 20, 1923. The plaintiff in that action was decedent’s wife, Veda Parker, who was named as beneficiary in the policy, and the defendant was the Mutual Life Insurance Company of New York, which had issued the policy on November 26, 1923, and through its agent left it with the decedent only a few days before his death. The policy contained a recital acknowledging the receipt of the premium, and also contained a provision that the policy should not be in effect until the first premium was paid during the lifetime of the person named as the insured. The agent of the insurance company claimed that the policy was left with the decedent for the purposes of examination only, with the request that he should pay the first premium and put the policy in force. The beneficiary claimed on the trial that the first payment had been made before the death of the insured, and whether it had been so paid was the sole issue submitted to the jury. The trial resulted in a verdict for the defendant company, and, judgment having been rendered thereon, this proceeding in error is brought by the plaintiff in error, who was plaintiff below, for a reversal of this judgment.

It is claimed in the first place that the court erred in its charge to the jury. It is contended that it was error for the trial court to submit for the jury’s consideration the single issue whether or not the premium had been paid. The claim is made by the plaintiff in error that the recital of the policy that payment of the first premium had been made was conclusive, and therefore the issue of payment was erroneously submitted to the jury. While it is true that outside of Ohio there are many decisions supporting this view, the question is not an open one in this state, for it has been settled by the Supreme Court of Ohio in the case of State Life Ins. Co. v. Harvey, 72 Ohio St., 174, 73 N. E., 1056. Under the authority of that case it was proper for the trial court to submit to the jury for determination the question whether or not the first premium had in fact been paid.

It is also claimed that the court erred in the charge in not submitting to the jury the question whether or not the policy had been delivered. Of course, if the policy had not been delivered to the decedent, the beneficiary would have no right of recovery in a suit based on it. The plaintiff in error, however, has no right to complain of the failure of the court to submit that question to the jury, for the reason that the trial judge assumed that proper delivery of the .policy had been made when he charged the jury that if the first premium was paid on the policy during the lifetime of the decedent the beneficiary could recover. While it is perhaps true that the defendant below could have complained of the failure of the trial judge to charge the law as to delivery of the policy a failure to do so was not prejudicial to the plaintiff below under the circumstances.

It is claimed, in the second place, that the trial court erred in permitting the agent of the insurance company to testify to conversations with the decedent, at the time he took the application for insurance, and again at the time that he left with decedent the policy, for the purpose of showing whether or not the first premium had actually been paid.

Under Section 11495, General Code, it is provided that “a party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person,” except in certain specified instances. The section referred to only forbids a party to the action testifying, except as therein specified. Since the local agent of the insurance company was not a party to the action, there seems to be no reason why he could not testify in the case. Cockley Milling Co. v. Bunn, Admx., 75 Ohio St., 270, 79 N. E., 478, 116 Am. St. Rep., 741, 9 Ann. Cas., 179. It is also true that the adverse party was the beneficiary, and was not a guardian, trustee, executor, or administrator; nor did she claim or defend as heir, grantee, assignee, devisee, or legatee of a deceased person. Section 11495, General Code, therefore has no application.

It is further claimed that the .evidence came within the rule laid down in Fraternal Mutual Life Ins. Co. v. Applegate, 7 Ohio St., 292, and Union Central Life Ins. Co. v. Cheever, 36 Ohio St., 201, 38 Am. Rep., 573. We think the rule in those cases is not applicable. In them it was sought to show as a defense to recovery npon the policy sued upon that the insured made statements or representations, upon which the policies were issued, which were false. There are convincing reasons why such evidence would not be admissible. As the issue in the instant case was whether or not payment of the first premium had been made, the legitimate •evidence in regard thereto was what transpired at the time the application was taken and the policy left with decedent, and any statements made at such time would be a part of the res gestae, and admissible in evidence.

In the third place, it is claimed that the trial judge was guilty of misconduct in interfering with the argument of counsel. During the course of the opening argument, counsel for the plaintiff used this language: “And we believe that the recital of payment in the policy is payment.”

The court thereupon instructed the jury that payment was necessary and asked counsel to desist from that line of argument. As payment was properly an issue in the case, we think that plaintiff’s counsel had no right to argue that the recital of payment in the policy was conclusive.

"We find no error apparent upon the face of the record, and the judgment will therefore be affirmed.

Judgment affirmed.

Richards, P. J., and Young, J., concur.  