Batson v. Fidelity Mutual Life Ins.

| Ala. | May 14, 1908

DOWDELL, J.

This is an action upon a life insurance policy. The defendant filed four pleas to the complaint. The first and second pleas were a general denial of the allegations 'o'f the complaint. The third and fourth pleas set up special matters of defense. Issue ■ was joined on the first three pleas, and special replications were made to the fourth plea, to which demurrers were interposed and sustained. We pretermit consideration of the ruling of the court below on the demurrers to the replications, since any consideration of these rulings, in the view we take of the case, is unnecessary to a final determination of the cause.

The third plea, on which issue was taken by the plaintiff, sets up a failure by the assured to pay the initial premium on the policy, a nonpayment of which by the terms of the contract rendered the policy invalid. The provisions in the contract of insurance in the case before us are much the same as those in the case of Powell v. Prudential Ins. Co. of America, 153 Ala. 611" court="Ala." date_filed="1907-12-19" href="https://app.midpage.ai/document/powell-v-prudential-insurance-co-of-america-7363172?utm_source=webapp" opinion_id="7363172">153 Ala. 611, 45 South. 208. The principles of law stated in that case and the authorities there cited find ready application here. The contract here sued on provides in terms that it “shall not be operative and binding until the actual payment of the initial premium and delivery of the policy during the lifetime and good health of the assured.” It is also stipulated in the contract and agreed to by the assured that no agent of the company has the power or authority “to grant credit, or to extend the time for payment of any premium, or to waive any forfeiture, or bind the company by making any promise, or by making or receiving any representation or information; it being agreed that such power can only be exercised in writing by the president, vice-president, actuary, or assistant actuary of the company, at its head office, and shall not be delegated.”

The undisputed evidence is that the initial premium was never paid. The soliciting agent, who delivered the policy, together with the receipt introduced in evidence, instead of collecting and receiving from the assured the initial premium, as was his duty, and which only as such agent he had the authority and power to do, took the note of the assured for the initial premium payable to himself individually at 30 days. This he had no authority to do, and the assured was informed of this want of authority in the agent by the terms of the contract. The note was never turned over to or accepted by the company, and it is not shown that the defenclant company ever had any knowledge or notice of this act of the agent until after the death of the assured. The act of the agent in taking the note of the assured for the initial premium, without authority from the defendant company, and without any subsequent waiver on its part of the agent’s unauthorized conduct, or ratification of said act of the agent, cannot in reason be said to constitute in law an actual payment of the initial premium within the meaning of the contract.

The receipt delivered to the assured by the agent at the time of the delivery of the policy, and which was introduced in evidence by the plaintiff, was open to explanation by parol evidence. It was shown, and not denied by the plaintiff, that no actual payment of the initial premium was made; and, this being true, the taking of the insured’s note by the agent could avail the plaintiff nothing, as it was not paid at maturity, and as, for that matter, it has never been paid, and there being in the face of the receipt given to the assured a condition that the failure to pay the note at maturity operated to ' end and determine the policy. — Knickerbocker Life Ins. Co. v. Pendleton, 112 U.S. 696" court="SCOTUS" date_filed="1884-12-15" href="https://app.midpage.ai/document/knickerbocker-life-insurance-v-pendleton-91245?utm_source=webapp" opinion_id="91245">112 U. S. 696, 5 Sup. Ct. 314, 28 L. Ed. 866" court="SCOTUS" date_filed="1884-12-15" href="https://app.midpage.ai/document/knickerbocker-life-insurance-v-pendleton-91245?utm_source=webapp" opinion_id="91245">28 L. Ed. 866; Iowa Life Ins. Co. v. Lewis, 187 U.S. 335" court="SCOTUS" date_filed="1902-12-08" href="https://app.midpage.ai/document/iowa-life-insurance-v-lewis-95737?utm_source=webapp" opinion_id="95737">187 U. S. 335, 23 Sup. Ct. 126, 47 L. Ed. 204" court="SCOTUS" date_filed="1902-12-08" href="https://app.midpage.ai/document/iowa-life-insurance-v-lewis-95737?utm_source=webapp" opinion_id="95737">47 L. Ed. 204; Fidelity Mut. Life v. Price, 117 Ky. 25" court="Ky. Ct. App." date_filed="1903-12-09" href="https://app.midpage.ai/document/fidelity-mut-life-ins-v-price-7135448?utm_source=webapp" opinion_id="7135448">117 Ky. 25, 77 S. W. 384; Ressler v. Fidelity Mutual Life, 110 Tenn. 411" court="Tenn." date_filed="1903-04-15" href="https://app.midpage.ai/document/ressler-v-fidelity-mutual-life-insurance-8300052?utm_source=webapp" opinion_id="8300052">110 Tenn. 411, 75 S. W. 735.

The third plea being sustained by the undisputed evidence in the case, the defendant was entitled to the sen-eral charge, as requested in writing, and which the court gave. We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.