13 Blatchf. 462 | U.S. Circuit Court for the District of Vermont | 1876
This case was tried by the court, upon the following agreed statement of facts, a jury having been waived by the written stipulation of the parties: “The plaintiff’s intestate, Jerry B. Sweatiand, resided in Richford, in this district, and was the keeper of a hotel. The defendants are a corporation created by the laws of the state of Massachusetts, with headquarters at Springfield, in that state. [The defendants’ charter may be referred to so far as necessary, and considered a part of this case. The application of the said Sweatiand, bearing his signature, and the premium receipt and policy made and signed by the defendants, and in question in this suit, are hereby referred to and made a part of this case.]
In order to determine the principles of .law which are applicable to this case, it is necessary for this court to find the inferences of fact which are properly deducible from the agreed statement of facts.
(1.) Prom the retention of the policy, without objection, by Sweatland, for fifteen days, under the circumstances which have been detailed, the court is authorized to infer an acceptance of its terms and provisions.
(2.) Was payment of the premium actually made, as between the insured and the company? If Buxton had undertaken, either expressly or impliedly, to pay the premium to the company, and to make Sweatland his own debtor therefor, the transaction would have been equivalent to payment Oases of this kind are not infrequent. But there is an entire absence of evidence that there was any such express or implied agreement or understanding between them. On the other ¡ hand, the letter of Buxton furnishes evi-1 dence that the premium was not paid, as be-' tween the insured and the company. The. agent says, “You can send the amount due, and I will return you receipt for the same” —showing that no receipt was to be given,: and indicating that no payment was to be considered as made, until the money was' actually received. Buxton’s book-keeping confirms this view. The question is answered in the negative.
(3.) Did Buxton attempt to alter the condition of the policy, requiring a prepayment -of the advance premium before the policy should take effect, and to give a credit to Sweatland for the amount? If the provisions of the policy are agreed to and accepted by the insured, “where the policy is •delivered without requiring payment, the presumption is, especially if it is a stock -company, that a credit was intended.” Miller v. Life Ins. Co., 12 Wall. [79 U. S.] 303. •This is not a conclusive presumption, but the question whether credit was intended is ■one of fact, and there is not an unyielding rule of law implying such a result from the mere fact of the delivery of an executed contract. Waiver is the act of the company, ■acting through its duly .authorized agents. The intention of the only person who acted in this matter is to be gathered solely from .his letter, in which he says, “You can send me the amount due by C. M< Searle, if you wish, and I will return you receipt for the .same, or you can pay it to me when I am up next time, as you please. No hurry about it.” If he had not added the last clause, the letter might have been construed to mean— “You can examine the policy and send me the money, and I will return you receipt,” it being well understood that the policy does not take effect until the premium is paid; but, when the writer says, there is “no hurry about it,” it indicates that he intended that the policy should be subsisting; otherwise, there was need of promptness, as the event proved. If it was desirable to the insured that the policy should take effect, it was also desirable that he should take the proper steps to make it effectual. Although Buxton knew of the express provisions of the policy, he probably relied upon the continuance of the life of a man who was apparently in good health, and, in the expectation that payment would be made in the future, he took the unauthorized liberty of disregarding the terms of the contract. I am, therefore, of opinion, that the presumption which is to be inferred from delivery has not been overcome by the defendants.
It having been thus found, as matter of fact, that there was an attempted waiver by Buxton, the question of law arises—was the attempted waiver effectual? It is not necessary, under the provisions of this application and policy, to consider any distinction between the powers of a general agent, by which term I mean an agent who is authorized to make contracts of life insurance, and the powers of a sub-agent, who is employed “to solicit applications for insurance, and, under such employment, to collect premiums on policies that are placed in his hands, and thereupon to deliver premium receipts and such policies to the assured,” and whose powers are coextensive with the business intrusted to his care, because, in my opinion, the powers of any person who was an agent, and not an officer, of the company, to vary the terms of the contract which had been entered into between the company and Sweatland, had been taken away, and the prohibition of the exercise of such powers was known to Sweatland. The provisions alike of the application and of the policy declare that the policy will not take effect, unless prepayment has been made. This condition could have been waived by the company, or its duly authorized agent, unless the agent had been prohibited from varying the terms of the policy, and that restriction of his powers had been brought home to the knowledge of the insured. In this case, the contract, which the insured had in his possession, bore upon its face the restriction of the powers of any agent, as to the alteration of the provisions of the policy. Sweatland had expressly agreed, in his application, that under no circumstances should the policy be in force until the first premium had been paid during his lifetime. This agreement was embodied in the policy to which he had also assented, and which informed him that an agent could not vary or alter one of its conditions. In the absence of fraud or imposition, it is conclusively
[From 5 Ins. Law J. 736.]