I cannot concur in the foregoing opinion. As to whether the legal principles announced are correct, I express no opinion. I have not been able to accept the case decided as the one presented by the plaintiff below in his complaint or as tried and determined by the district court as evidenced by the record of the trial, including the findings and objections thereto and denial thereof, nor as presented in argument here.
The theory of the case as urged by plaintiff from the filing of her complaint down to the last argument here, as it seems to me, is that the contract of insurance was an oral one effectuated by application of the deceased husband of plaintiff for the insurance, accompanied by the payment of a premium and the receipt thereof in the Albuquerque office of the defendant in the State of New Mexico.
Defendant attempted throughout the trial to drive plaintiff into the position of relying upon acceptance or approval of the application by the company's officials in the Albuquerque office or elsewhere as the circumstance which completed the contract according to the testimony adduced on the part of the plaintiff. Plaintiff energetically repelled this effort of defendant. I understand appellee's theory to be that the agent who secured the application accepted and approved the same on behalf of defendant company, subject to the contingency that such application and premium money should arrive in the Albuquerque office of defendant. It is a reasonable inference brought forward by this court in support of the judgment that what was meant by the defendant's soliciting agent accepting the application and premium was that the insurance would be in effect when the application was received at the defendant's Albuquerque office upon acceptance and approval there. There was but one witness who testified as to statements and representations in conversations between the deceased and the soliciting agent of defendant, and defendant's counsel earnestly contended in the lower court and here that according to the testimony of this witness that was all that could be made out of the representations made by the defendant's soliciting agent. Plaintiff just as earnestly *Page 215 and energetically in the trial court and here contends that the representations of the agent were that the insurance would be in effect when the application for insurance and the premium therefor "reached the Albuquerque office of the defendant in the State of New Mexico," and that the testimony of the witness did not support an inference that acceptance and approval by the company's officials in Albuquerque was necessary in order for the insurance to be in effect. If the trial court had accepted defendant's view as to the effect of the witness' testimony, it might be said that plaintiff's theory as presented by her complaint would be deemed to have been amended at the trial. It appears in the course of the argument that counsel for appellee (plaintiff) assisted the trial court in the preparation of findings of fact and conclusions of law. Finding of fact No. 5 is as follows: "That on and prior to the 19th day of February 1935, one Grover Pryor was the duly authorized agent of the defendant company residing at Des Moines, New Mexico, and that on said 19th day of February, 1935, the said decedent applied to said agent for accident insurance, that on said date said Grover Pryor did solicit the application of said decedent for said accident insurance and advise said decedent that the initial premium upon the same would be the sum of six dollars fifty cents ($6.50), explained generally the terms of the policy for which application was being considered, and that the coverage in event of death by accident while riding in or driving an automobile would be the sum of twenty-five hundred dollars ($2,500.00), and that if the decedent would sign an application for said insurance, said insurance would be in full force and effect from and after the receipt of said application with said initial premium in the sum of $6.50 by the Albuquerque Agency Office of said defendant company, and that said application and remittance would reach said Albuquerque office of said defendant company within twenty-four hours after the application had been signed and delivered and the premium paid to said Grover Pryor."
Defendant made objections and exceptions to the findings of fact and conclusions of law, and among the objections to finding of fact No. 5, quoted supra, is the following: "(b) There is no substantial evidence that Grover Pryor stated, explained, or represented to the decedent, Joe C. Douglas, that the insurance applied for would be in force or effect from and after the receipt of the application with the initial premium by the Albuquerque agency office of the defendant. On the contrary, it appears from the only evidence touching this subject, namely, the evidence of the witness Ralph Baum, that the understanding between Grover Pryor and the decedent was that the insurance would not be in effect unless and until the application should be approved by the defendant company."
The objections and exceptions made by the defendant were separately and severally overruled by the court. This leads to the conviction that the court agreed with the plaintiff that the testimony disclosed an *Page 216 understanding between the company's agent and the decedent that the insurance would be in effect from and after the receipt of the application with the initial premium by the Albuquerque office of the defendant without the necessity of approval by the defendant company further than the approval which had already been given to it by defendant's agent, who solicited, received, and forwarded such application and initial premium.
The majority make out of the failure of the defendant to come forward with proof of facts concerning the handling of the application and the acceptance or rejection thereof after it reached the Albuquerque office a circumstance indicating an acceptance and approval of such application. I am unable to see how a duty rested on defendant to present evidence to disprove acceptance or approval in Albuquerque by the defendant's officials there, or at the home office, when plaintiff had dug herself into the position that acceptance or approval by the agents or officers of the defendant company in the Albuquerque office or the home office was not essential to the establishment of her case.
With great respect for the opinions and decisions of the Justices who concur in the majority opinion, it seems to me that they have departed from the theory of the case as presented in the court below. This has been influenced perhaps by humanitarian impulses, but I believe it to be outside the province of this court and contrary to the proper administration of justice, and, therefore, I dissent.