106 Neb. 409 | Neb. | 1921
The plaintiff recovered a judgment against the defendant upon a life insurance policy in which she was named ■as beneficiary. By stipulation of the parties, a jury was waived, and trial was had to the court. Defendant appeals.
It was pleaded as a defense that the first premium was never paid, and also that the policy was never delivered to and received by the insured during his continuance in good health; that these requirements were conditions precedent to the contract of insurance becoming binding and effective, and that therefore the policy never became a binding contract. The reply pleaded a waiver of the conditions of the contract requiring the first premium to be paid before the policy became effective, and alleged that credit was extended to the insured for the payment of the first premium, and that within the time of the extended .credit full payment of the premium was tendered and refused. The reply also denied the allegations of the answer, and alleged that at the time the policy was delivered to and received by the insured he was in good health. ,A brief reference to the facts will serve to make clear the precise points in controversy.
T'he record shows that on October 30, 1918, Philip K. Echols, the insured, who lived at Cheyenne, Wyoming, made application to the defendant company through its local soliciting agent, Theodore Thulemeyer, for a life insurance policy in the sum of $5,000, requesting therein
It appears that the company maintains a general agency at Denver, which has general charge of the business of the company originating in the states of Colorado and Wyoming. This Denver agency was in charge of O. C. Watson, who is styled “manager,” and who had authority to appoint soliciting agents, collect premiums, deliver policies, and in fact conduct a branch office of the company’s business within the states mentioned. The
On November 13, 1918, the policy was received at the Denver agency, and by it, on the same day, mailed to Thulemeyer at Cheyenne for delivery and settlement. Owing to the absence of Thulemeyer from Cheyenne, he did not receive the policy until Saturday, November 16, at which time, at about 4 o’clock p. m., he met Echols by appointment at Thulemeyer’s room, and delivered the policy. On that occasion it was agreed that an extension of time for the payment of the premium was to be given to January 2, 1919. As to what occurred at that time, Thulemeyer’s testimony is as follows: “I handed him the policy, and he asked me something about the settlement, and I asked him when it would suit him best to pay for the policy, and he told me it would suit him best if he could pay for it immediately after the first of the year, and ,1 agreed to that with the understanding that he was to give me a note, of course, which he Avould have done then, but I had no notes in my room, and I told him that I would fix it up with him in a few days. He asked me then if that would be all right, and I told him, sure, it .would be.”
On the day the policy Avas delivered to the insured, Thulemeyer wrote to the Denver agency that he had delivered the policy, and asked Watson whether he could handle his note. Whether he referred to his OAvn note ,or Echols’ note is not entirely clear. On November 18' fWatson replied to Thulemeyer as follows: “With reference to policy No. 2534687, Echols, which you have delivered, please send note to me and I will advance the net .premium right away.”
Thulemeyer again left Cheyenne on Monday, November 18, and was absent when in the due course of mail Watson’s letter should have been received. In the meantime, .and before the letter Avas delivered to Thulemeyer, Echols died, on November 24, from a sudden attack of influenza, without having given the note for the premium. It ap
It also appears, although upon this point there is a little •confusion in the testimony, that a. rule of the company permitted its agents to accept a note in payment of the first premium. In such case, however, the note was to be taken in the name of the agent, was to be his property, and the agent was required to remit the net premium to the company. The purpose of such a rule was no doubt to enable the agents to extend credit to persons of known financial responsibility in cases where they were willing to advance to the company the net premium.
It is quite obvious that the stipulations in the application and policy, which have heretofore been quoted, and which form the basis of the defenses pleaded, are for the benefit of the company, and can be waived by it, and such waiver may be shown by conduct on the part of the company which indicates an intention to do so. It is manifest that the rule of the company permitting its agents to accept notes in their own names for the first premium, they becoming responsible to the company for the net premium, is entirely inconsistent with the provisions of the contract that the policy shall not take effect until the first premium shall have been paid, and also inconsistent with the provisions that no agent or other person except certain designated officers shall have power on behalf of -the company to extend the time for paying the premiums. Under such circumstances, the court will construe the action of the company in its most favorable light to the insured, with the view of sustaining rather than defeating the contract. It is clear that the insured believed at the time the policy was delivered to him that he had a valid and effective contract of insurance, and it is equally clear that Thulemeyer intended that the policy should be effective, and that he was to advance the net premium to
In addition, it will be observed that Watson was the general manager of the company’s business in the states of Colorado and Wyoming, and that he had been notified by Thulemeyer that the policy had been delivered without the payment of the premium, and, inferentially at least, that an extension of time for paying the premium had been granted to the insured. This notice to Watson was in legal effect notice to the company as to what had been done. It is a general principle of agency that knowledge to the agent is knowledge to the principal, in so far as such knowledge pertains to matters within the scope of the agent’s powers. Watson knew that the policy had
The principle here involved was considered in German Ins. Co. v. Shader, 68 Neb. 1, in an opinion by Commissioner Pound, and it was held: “Provisions in a policy of insurance that the risk shall not attach unless the premium has been actually paid are waived in case the policy is delivered upon an agreement to extend credit, and the insurer does not take advantage of such provisions,, but treats the policy as in force.” And, in discussing the proposition, the court said: “The general rule that an insurance company cannot take advantage of conditions in a policy whereby such policy is to be void by reason of circumstances existing at the time the policy issued, in case the facts were known to its agent at the time, has been recognized universally. More recently insurance companies have sought to avoid the consequence of this well-established rule by provisions to the effect that the conditions of the policy 'could be waived only by written indorsement, and by clauses in which agents áre forbidden to waive any of the conditions of the policy in any other manner. Notwithstanding provisions of this type, an overwhelming majority of the state courts have continued to apply the rule that an insurance company cannot set up that a policy issued by its agent with knowledge of the facts was void when it was issued, by reason of facts
As hearing generally upon the questions discussed, see Washburn v. United States Casualty Co., 108 Me. 429; Berliner v. Travelers Ins. Co., 121 Cal. 451; Griffith v. New York Life Ins. Co., 101 Cal. 627; Home Ins. Co. v. Gilman, Exr., 112 Ind. 7; Bush v. Insurance Co., 85 Mo. App. 155.
Appellant contends that the insured was not in good health at the time of the delivery of the policy to him on November 16, 1918. We have examined the record, and find there is some conflict as to the precise time the insured became ill, but there is ample evidence in the record to support the finding made by the trial judge that the insured was in good health at the time of the delivery of the policy, and his finding of fact upon conflicting evidence is entitled to the same weight as the finding of a jury would be given, and, under the familiar rule in. force in this state, will not be disturbed unless clearly wrong.
In view of the liberal allowance made to plaintiff’s attorneys in the trial court, an attorney’s fee of only $100 is allowed in this court.
The judgment of the district court is
Affirmed.