77 Mo. App. 629 | Mo. Ct. App. | 1899
This is an action which was brought by the plaintiff against the defendant — an insurance association incorporated under the laws of the state of Iowa and duly licensed to do business in this state — on a joint certificate of membership issued by the defendant to the plaintiff and her husband, Franklin L. Bur-dick, since deceased, whereby the defendant agreed in the event of the death of either of them during their membership to pay $1,000 to the survivor, etc.
The defenses pleaded by the defendant’s answer to the action were, that the plaintiff and the deceased by joint and separate instruments in writing made application to the defendant for the said certificate sued on; that said applications by the terms of said certificate were made a part thereof; that the statements therein contained became warranties; that the plaintiff, by the terms of said certificate, warranted the statements contained in said applications to be full and true and agreed that if any of the said statements were false the certificate should be void, etc. It is therein further alleged that the deceased, in answer to certain questions contained in his application, stated that he had no" physician; that the physicians who had treated him or who had been consulted by him were deceased and that he had been last treated by a physician eighteen
These allegations of the answer were put in issue by the general denial contained in the replication. The cause was tried by the court without the aid of a jury.
Two instructions for plaintiff were given by the court declaring the law of the case as requested by her. These instructions are not presented for our review by the abstract of the record. The court on its own motion gave an instruction in effect declaring the defendant to be an assessment company upon the plan provided in article 3, chapter 89, Revised Statutes.
The defendant by several other instructions requested the court to declare that, if it was found from the evidence that the deceased had committed a breach of the several warranties alleged in the answer, the plaintiff could not recover. To each of these the court added this modification, namely: “Unless the court further finds that, with a knowledge of the breach of warranty, the general manager of the defendant afterward collected of deceased premiums on said policy.” The plaintiff objects that the said instruction given by the court on its own motion is an incorrect expression of the law, but as the judgment is in her favor and she is not appealing, we are not obliged to notice her objections thereto. As the defendant had a consideration of the case by the court upon each of the several theories presented by its instructions, with the modification annexed by the court, it would seem that about
The undisputed evidence shows that Grady was from the time of the issue of the certificate to that of the death of the plaintiff’s husband the general agent of the defendant in this state. But it is insisted by the express terms of the articles of agreement entered into between him and the defendant, and by virof which he was appointed the general manager of the defendant for this state,. certain limitations were thereby imposed 0n his authority. In the first clause of said articles it was stipulated that he should have no authority to waive forfeiture of any policy of insurance in said association. But by the terms of the fifteenth clause it was provided that: “The agreement should be treated and held strictly confidential between the parties thereto and any disclosure should be sufficient cause for its annulment and relinquishment of all rights accruing thereunder.” This secret limitation, it seems, was never disclosed by Grady during the lifetime of the plaintiff’s husband. As far as the public or the plaintiff and her husband knew he was the general agent of the defendant intrusted with the transaction of its business in this state, unhampered by limitations on his authority of any kind.
It has been held that any limitation upon the authority of the agent of a foreign life insurance company must be brought home to the knowledge of the beneficiary in order to invalidate his claim. Mowry v. Ins. Co., 9 R. I. 346. And in this state it has been held that if any officer of an insurance company assumes to possess certain powers and the nature of his employment justifies the assumption of authority, and the party dealing with him has no notice of want of the
Accordingly we conclude that the plaintiff’s rights were in no way affected by the secret limitations in the authority of Brady as general agent.
But the defendant contends that a provision inserted in the certificate itself to the effect that, “no agent of the association is authorized to change, alter or waive any of the conditions of this contract, nor to waive any forfeiture thereof; and any such act to be valid must be done in writing and signed by the president or secretary of the association,” contained an inhibition on the authority of Grady to waive-any forfeiture and of this inhibition the plaintiff and her husband must be presumed to have had knowledge. The waiver here claimed is by acts in pais. The question arises, is such an inhibition or instruction, as that just referred to, binding?
In Reiner v. Ins. Co., 74 Wis. 89, the policy contained a provision to this effect: “No act or omission of the company or any of its officers or agents shall be deemed, construed or held to be a waiver of a full and strict compliance with the foregoing provisions of the terms and conditions of this policy, except it be a waiver or extension in express terms and in writing signed by the president or secretary of the company.” In the course of the opinion in the case the court say: “But the clause of the policy referred to is claimed to
In Ins. Co. v. Gray, 43 Kan. 497, there was a provision in the policy substantially the same as that pleaded in this case and it was there held that notwithstanding the inhibition the company through any of its general agents could waive any of the conditions of the policy. It was further held that the knowledge of the general agents was the knowledge of the company and their act was its act. And to the same effect is the well reasoned case of Ins. Co. v. Munger, 49 Kan. 178.
In leases requiring assent in writing as to subletting or alteration, a parol assent will suffice. And the waiver of a forfeiture under a policy has been likened to a forfeiture under a lease. Ins. Co. v. Norton, 96 U. S. 242. The doctrine of waiver, it has been well said, to avoid the enforcement of the conditions of a
Joyce in his excellent Treatise on Insurance, section 439, uses this language: “We deduce, however, the rule that the tendency of the weight of authority at the present day is against making restrictions in the policy upon the agent's authority conclusive upon the assured and that the company, or any agent with general or unlimited powers clothed with an actual or apparent authorization, may either orally or in writing waive any written or printed condition in the policy notwithstanding such restrictions, and many cases apply this rule even though the policy provides that a distinct specific agreement shall be indorsed therein or otherwise prescribes a particular mode of waiver, and there would be no valid reason why, if the agent may waive the restriction in the first case he may not in the latter, for such restrictions are declared to be ineffectual to limit the legal capacity of the company to bind itself by waiving the conditions of the policy through an agent acting within the real or apparent scope of his authority. So it is held that although the policy
In Hamilton v. Ins. Co., 94 Mo. 353, the policy provided that, “If the assured should have or hereafter make any other insurance on the property herein insured without notice to, or consent of, this company in writing hereon,” etc. The agent of the company had notice of other insurance and took no steps to cancel the policy sued on. In the opinion in the case it is said that, “Failure of literal compliance with the stipulation in the policy will not be allowed to work a forfeiture, and the company is held estopped from making such claim.” Other eases of similar import might be cited from our own appellate court reports.
If the evidence tended to prove, as it does not, that aifter the breaches of each of the several warranties by the plaintiff’s husband, pleaded in defendant’s answer, had been brought to the notice of G-rady, he in his quality of general agent for the defendant in this state demanded and accepted of the plaintiff’s said husband the last premium due on said certificate, then it is clear, as we think, from the authorities which we have already alluded to, that Grady’s knowledge of the breaches of the warranty or grounds of forfeiture at the time of the collection of said premium was that of the defendant, and that in that transaction he was the defendant. Not only this, but that the reception of such premium with such knowledge could have been a waiver of the right of the defendant to afterward insist upon a forfeiture of any of the conditions of the policy, notwithstanding it appears that such waiver was not evidenced by a writing signed by the president or secretary of defendant as required by the restriction in the contract. The defendant could not, by this
But it is further insisted that the modification by the court of the several theories embraced in defendant’s instructions, upon which the defendant sought to have the cause determined, was unauthorized by the evidence. This insistence must be upheld. The court by its modification of the defendant’s instructions in effect declared that if it found from the evidence there was a waiver of the forfeiture pleaded by defendant’s answer then such defenses would be unavailing. The undisputed evidence tended to establish the several breaches of warranty pleaded in the defendant’s answer, and hereinbefore referred to. There is no evidence whatever of any waiver by the defendant of such grounds of forfeiture. It nowhere appears that Grady, the general agent of defendant, at the time of the receipt by him of the last premium on the certificate, had knowledge of the existence of any of the several grounds of forfeiture pleaded and relied on by defendant. There is no evidence, that he then knew that the physicians by whom plaintiff’s husband 'had been treated within the last eighteen years next before the date of his application were not all dead or that he then knew that within that time Drs. Mansfield, Pursley, Gordon and Murphy had treated him for
It is quite true that the evidence tends to prove that Grady was informed, before he accepted the last premium paid' by the plaintiff’s husband, that he was afflicted with Bright’s disease of the kidneys, but there is, as already stated, no evidence that Grady knew of the existence of the grounds of forfeiture hypothesized in the defendant’s instruction. There was therefore no evidence to justify the inference that the defendant intended, by the reception of the last premium paid by plaintiff’s husband, to waive the. forfeiture resulting on account of any of the breaches of warranty relied on as a defense to the action. The defendant was entitled to a consideration of the case upon the theory of his instructions as requested without the court’s modification thereof.
It therefore follows that the judgment must be reversed and the cause remanded.