193 N.W. 471 | N.D. | 1922
Lead Opinion
Statement.
This is a consolidated action upon two policies of life insurance. Defendant has appealed from a judgment entered upon a verdict in plaintiffs favor. The same cause was heretofore before this court. 180 N. W. 523. Then plaintiff appealed from a judgment of dismissal entered upon a verdict directed at the close of plaintiff’s testimony. Pursuant to the order of this court, a new trial was had. The salient facts have been fully set forth in the previous opinion of this court. It is unnecessary to restate theme in detail excepting as additional testimony or purposes of this opinion so require. The facts are: In June, 1916, plaintiffs son, then aged nineteen, applied to defendant for insurance upon his life. Two ordinary life policies, dated July 7th, 1916, one for $3,000, the other for $2,000, were issued, payable to plaintiff, his father, as beneficiary. In the former policy, the premium was $57.30, in the latter, $38.20, payable annually on June 23d. The policies recited the payment of such premiums for a period terminating June 23d, 1917. One Kane had been an agent and solicitor of defendant for insurance during some thirteen years. In some respects, he was distinguished in the service of defendant, belonging to the so termed $200,000 club. For many years, since November, 1908, at Minot, North Dakota, as such agent and solicitor, he represented the defendant. During the past eight or nine years he has devoted practically all of his time to such business. At Grand Forks defendant maintains a branch office. There it has an agency director or manager over the agents in the state. This branch office receives premiums from
Kane, as agent, operated under an agreement between him and defendant dated September 1st, 1910. This agreement is countersigned by the agency director of the branch office. The agreement constitutes Kane a special agent for the purpose of canvassing applications for insurance and of performing such other duties in connection therewith as the officers of the company may in writing expressly require of him. It provides that Kane shall have no authority to accept risks of any kind, to make, modify, or discharge contracts or to extend the time for paying any premium, to waive forfeitures, or to receive any moneys due
The insured belonged' to the National Guard which, in 1916, was ordered to the Mexican border. The son performed service there but returned to Minot before enlistment. On June 4th, 1917, at Minot, he enlisted in our United States Army. The premiums fell due on. June 23d, 1917.
The policy provides for a grace period of one month during "which every premium after the first may be paid. On July 14th, 1917, the plaintiff wrote to the branch office to the effect that he did not receive the policies until after four months so that he figured that he had no insurance for that period of time. That the policies are so patched up with clauses that if his son were killed in any country outside of. the United States, his estate would receive little or nothing on such policies. That if such was the company’s way of doing business he did not feel like putting up $95 more for this year’s premium. That if they wished to change the policy and make them a straight life, whether his son is in the army or not, he would pay up the premium. That he preferred to give his note for ninety days as he had just invested considerable money, but he could send the cash if they insisted on it. On July 19th, 1917, the cashier of the branch office wrote to" the plaintiff to the effect that the full insurance took effect on June 23d, 1916, and plaintiff was fully protected. That their records did not show that the policies had any restrictions and that they were liberal contracts indeed. That if plaintiff would forward policies they would be pleased to proceed to do all that they could to adjust matters to his complete satisfaction for the New York Ifife’s aim is to at all times satisfy their policy holders. That it gave him pleasure to attach herewith two extension agreements of $30 and $45 due September 23d which should be signed by his son and returned with a deposit of $20.50. That he trusted that this deposit would be made within the thirty days’ grace which expired July 23d. These extension agreements are the so-termed blue notes, one of which is fully set forth in the former opinion of this court. See 46 N. D. 588, 180 N. W. 525. These two blue notes were signed by both the plaintiff and his son. On July 21st, 1917, he wrote to the company
The cashier of the branch office testified: She took her position as such September 27th, 1917; she is in charge of the cashier’s department. Her office received the renewal receipts for the premium due in June, 1917. The function of her department is the handling and collection of renewal premiums. Neither the notes nor the renewal receipts were ever turned over to Kane for attention; she has examined the records of the office and has found no authority in writing given to Kane to deal with the renewals on these policies. She sent the renewal receipts and
Defendant contends that, under the contract, the policy was not in force beyond the date when the next premium fell due including the grace period of one month; that the note extension extended the insurance and the right to pay the premiums until midnight of September 23d, 191J; that the failure of the makers to pay the notes at such time automatically abrogated any claims against the makers under their very terms; that the blue notes did not change the terms of the policy but that their rights remained the same as if no agreement had been made thereunder; that no waiver is established because the agent became possessed of no authority thereafter to waive any provisions of the policy or the agreements made, and had no authority to solicit or collect a renewal premium; that the trial court erred in reception of evidence concerning the declarations and representations of the agent, Kane.
Decision.
The facts presented upon this record are substantially the same as
There is a good faith that searcheth the conscience of the parties in every transaction; the good faith of the giver, of the receiver, for right and for justice. The law, ever seeking, as its raison d’etre, to render every one his due, is ever ready to heat and apply good faith. Waiver
As a foreign insurance corporation, defendant, by the law of this state, is permitted to do business in this state only through its authorized agents, who must be residents of and Have their office and place of business within, this state. Comp. Laws, 1913, § 4926. Upon this record, defendant Had two representative agencies in this state. THe branch office at Grand Forks, and Kane, at Minot, later at Grand Forks. THe cashier of the branch office, for a part of the time, alone, testified. From Her testimony, limited as it is, it does appear that this branch office Has an agency director or manager. THat it Has authority to receive applications and remittances for first premiums. THat it has authority to collect renewal premiums sent to it and, to a certain extent, to make reinstatements of policies. It was the custom of Kane to confer with this agency director. Later, He Had an office connected with this branch office. Even under the special contract with Kane there might Have been conferred upon Him a duty and power concerning renewal premiums. It is certain that a duty and power was so conferred upon the branch office. Kane was a man of long experience with the company. He enjoyed its confidence. He Had close connections or relations with the branch office. It may be noted that the agency director did not testify. THe record further does not disclose the agency director was a licensed agent in this state. It does disclose that the authorized and licensed agent of "defendant, resident in the state, was Kane. He was not authorized to act as agent for defendant until the commissioner of insurance Had issued to Him a certificate of insurance showing that the defendant Had complied with the requisites of the law. Comp. Laws, 1913, § 4920. To Kane, through state authority, there was issued a certificate which certified that defendant Had appointed Him, a resident of Minot, its agent for the transaction of its authorized business of insurance in this state. It is admitted that this agent Kane
■ The branch office assumed to have a power and a duty, conferred by the home office, contrary to the provisions of the policy that no agent is authorized to waive forfeitures or to make, modify, or discharge contracts. Thus, was the branch office permitted to assume and to accept powers and responsibilities contrary to the right of forfeiture as expressly provided in the policies. Upon this record, in considering the application of waiver and estoppel, there are more elements involved than the mere representations and assurances of the agent Kane. The statute provided that whoever solicited insurance, on behalf of any insurance corporation, oi’ made any contract of insurance, or collected any premium, or in any manner aids or assists in doing either, or in transacting any business of a like nature for any insurance corporation shall he deemed to be an agent of such corporation to all intents and purposes. Comp. Laws, 1913, § 4959. Defendant clothed the branch office with the habiliments of authority contrary to the policy. The branch office, thus clothed, assumed to act and to seek the co-operation and assistance of its agent Kane. Thus, through their activities, so assumed, and so permitted, did they, pursuant to the statute and their representations, appear to have and possess an authority equal to their assumptions. And so, the defendant, as a matter of law, may not hide behind a secret and restrictive agency which it itself, by its acts and statutory regulations, has enlarged, and assert strict enforcement of the policy provisions where the plaintiff, able to perforin, has been misled to his prejudice. Therefore, as held in the former opinion of .this court, the questions of -waiver were for the jury and the findings •thereupon should not be disturbed. We are further of the opinion that the trial court did not prejudicially err in receiving in evidence the statements and admissions of the agent Kane which concerned the res gestan The judgment is affirmed with costs.
Dissenting Opinion
(dissenting). The defendant is held liable in
I am also of the opinion that the evidence is insufficient in the same respect on tliis appeal.
Rehearing
On petition for rehearing.
On December 30th, 1922, the decision of this court was filed in this case. The case was decided by a divided court. The majority opinion written by Mr. Justice Bronson was concurred in by Mr. Chief Justice Birdzell and Mr. Justice Grace. Justices Chris-tianson and Kobinson dissented. On January 1st, 1923, there was a change in the membership of the court. On that day Justices Grace and Kobinson retired from, and were succeeded in, office by Justices Johnson and Nuesslo. On January 13th, 1923, the defendant filed a petition for rehearing. The situation confronting this court upon the filing of the petition was this: There were only two members of the court who had participated in the case upon the original hearing who agreed with the disposition of the case made in the former decision, one of the members of the court disagreed with the former decision, and two members of the court had not participated in the former hearing and were wholly unfamiliar with the case in any of its aspects. In view of the circumstances it was thought advisable to order a reargument without determining whether a rehearing should or should not be granted. The reargument was intended to serve a twofold purpose:
(1) To determine whether a rehearing ought to be granted and the conclusions reached in the former opinion as to the law and facts reexamined; and,
(2) Whether in event any ground for rehearing existed the former decision ought to be departed from.
On oral argument counsel -were informed by the Chief Justice of the purposes for which reargument had been ordered.
After careful consideration a majority of the court are agreed that the petition for rehearing filed in this case does not present any cause