| Or. | Apr 25, 1916
Lead Opinion
delivered the opinion of the court.
While neither, party contends that the notes given in 1913 are invalidated in their entirety by Section 4632, L. O. L., yet, before discussing the arguments advanced by the litigants, it will be necessary to determine whether the notes are affected by that statute, which reads thus:
*419 “No life insurance company or any of its representatives doing business in this state shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life in the amount of payment of premiums or rates charged for any of its policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; nor shall any such company or any representative thereof make any contract of insurance, or agreement as to such contract, other than as plainly expressed in the policy issued thereon; nor shall any such company or representative pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premiums payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any valuable consideration or inducement not specified in the policy contract of insurance. Every officer or agent of any such corporation who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor and shall be fined in any sum not exceeding $500 or imprisoned in the county jail not exceeding six months or both at the discretion of the court, with revocation of his license to do business in this state.”
It is plain that the primary object of the quoted legislation is to prevent discrimination, and indeed convincing evidence of that purpose is found in the statute as passed by the legislature and as codified in Lord’s Oregon Laws, for the original act is entitled an act to amend Section 3722,. B. & 0. Code, and “to define life insurance companies, to declare what companies are subject to this act, to provide for valuation of policies and to prevent discrimination and prescribe penalties for the same * * ”; and, furthermore, the quoted section is headed, not only in the Code, but in the original act as well," by the words: “ To Prevent Discrimination.”
Section 4632, L. O. L., is almost a literal exemplification of Section 656, Kentucky Statutes of 1899, and it is therefore fair to assume that the Kentucky statute, or one just like it, served as the model for our statute. In Fidelity Mut. Life Ins. Co. 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), the company, on April 22, 1896, issued a policy on the life of George T. Price in consideration of $217.80 and the annual payment of a like sum. Not being able to pay a renewal premium, the insured executed his note, on April 22,1900, which was made payable on August 22, 1900. Price was not able to pay the full amount of the note, and before it matured he paid the company $50 and gave a new note for the balance' of the premium, payable November 20, 1900. The note provided that if it was not paid at maturity, the policy “for which it is given shall be null and void, without notice to the maker thereof, and without any act on the part of the company, and shall remain so until restored by its terms.” The insured failed to pay the note and died on December 10, 1900. The beneficiary sought to recover on the policy. The court held that by receiving the note the company simply agreed to postpone the payment of the premium for four months, and that it would not exercise its rights of forfeiture for that period; and, when speaking of the statute which provides that no insurance company “shall make any contract of insurance or agreement as to such contract other than is plainly expressed in the policy issued thereon,” the court said:
*422 “This clause evidently is not applicable to the facts of this case. It relates to .the time the policy was issued. If it had the effect, as contended by counsel, that the note was void and likewise its provisions, because it was not attached to the policy, the appellee could not get any benefit from the execution of the note. If it was void because it was not attached to the policy, its terms would not be binding on either party. The logic of counsel’s position would be that, as there was no valid agreement between the parties as to the extension of time for the payment of the premium, the policy was forfeited on the 20th of November, 1900, and the insured was never relieved from the forfeiture. If the contract was void, then the court would not uphold the part that was beneficial to the insured, to wit, the extension of time for the exercise of the right of forfeiture, and deny the company the right to insist upon the forfeiture upon the failure to perform that part of the contract which induced the company to extend the time for declaring the forfeiture.”
The' doctrine was reaffirmed: New York Life Ins. Co. v. Meinken’s Admr. (Ky.), 81 S. W. 239; Citizens’ Ins. Co. of Missouri v. Henderson Elevator Co., 123 Ky. 478 (96 S. W. 601, 97 S. W. 810). The construction placed upon the Kentucky statute is especially significant when considered in the light of Provident Sav. Life Assur. Soc. v. Puryear’s Admr., 109 Ky. 381" court="Ky. Ct. App." date_filed="1900-11-22" href="https://app.midpage.ai/document/provident-sav-life-assur-so-v-puryears-admr-7134538?utm_source=webapp" opinion_id="7134538">109 Ky. 381 (59 S. W. 15), where it was held that the statute means “that the entire contract of insurance is to be plainly expressed in the policy,” and that:
< i ippg requirement that the whole contract as to life insurance should be set out in the policy was aimed, not only to prevent discriminations and rebates, but all the evils growing out of uncertainty in these contracts, and the imposition which otherwise might be practiced. * * The purpose of the legislature was that the assured might know from his policy what his contract was, and that contracts not contained in the*423 policy, or written upon the hack of it or attached to it, should not he considered, in order to avoid imposition by agents eager to earn commissions, and to avoid the litigation incident thereto after the death of the assured, when his tongue had been forever silenced, and any explanation he might have made could not be told.” N
Assuming that our statute had its origin in the Kentucky legislation, then it follows that we also adopted the construction put upon that legislation by the courts of Kentucky, and, applying the judicial construction of that state, the notes are not prohibited by Section 4632, L. O. L., and, moreover, the giving of the notes did not contravene the expressed purpose of the statute, because the payments to be made by the insured were not reduced in amount or rates, and no discrimination was worked out by the notes.
The execution of the renewal premium notes with the provision for the termination of the policies did not constitute an agreement to waive the right of forfeiture nor relieve the insured from the obligation to pay. The parties simply agreed to postpone the time for the payment of a single premium, and that during the extension period the insurer would not exercise its right of forfeiture. As was said in Occidental Life Ins. Co. v. Jacobson, 15 Ariz. 242" court="Ariz." date_filed="1914-01-14" href="https://app.midpage.ai/document/occidental-life-insurance-v-jacobson-6474080?utm_source=webapp" opinion_id="6474080">15 Ariz. 242 (137 Pac. 869):
“Where a forfeiture for the nonpayment of premium notes is provided for, either in the policy or the note, and the facts do not show any subsequent agreement or conduct which amount to a waiver of such provision by the insurer, the giving of the note must be regarded as merely postponing the time for the payment, and not as a payment of the premium. ’ ’
Our statute is also similar to legislation enacted in the states of Massachusetts, New York, Mississippi and Texas: Section 68, c. 118, Rev. Laws Mass. 1902;
“We are not prone to believe that the provisions of the statutes were intended to prevent an extension of credit, where insurance companies thought it expedient to do so, in payment of premiums for such contracts. * * We are not inclined to think that these statutes contemplated a well-known method pursued by insurance companies was to be prohibited to them in the conduct of their business.” ■
Most of the adjudications coming to our notice, when speaking of the statute, either concede or expressly hold that the legislation was not designed to prevent the making of notes like the ones involved here. The expressed purpose of the statute itself, the judicial construction given to a statute which appears to have served as the model for our legislation, and the references of other courts to similar laws, all combine to support the conclusion that Section 4632, L. O. L., does not prohibit the notes given in 1913. The policies declare that “agents are not authorized to make, alter or discharge contracts, or to waive forfeitures, or to waive or postpone payment of premiums”; and it has been argued that this provision in the policies affects the notes and also the claims of waiver. ' The persons who represented the company when the notes were accepted were more than mere agents to secure insurance. One was the secretary and actuary of the company, and S. P. Lockwood was vice-president and “general manager of the company’s business in all departments.” Both were also directors. Neither
The defendant alleges that both policies had lapsed before James M. French died. The company argues that by the express terms of the notes the policies terminated in July, 1913, for the reason that the insured failed to pay the notes when they matured. The position taken by the defendant is assailed by the plaintiff from four different angles: (1) She claims that the premiums were paid by the execution of the notes; (2) she argues that the provisions for the forfeiture of the policies, found in the notes, create new contracts which do not bind the beneficiaries because not assented to
In support of the allegation of payment the plaintiff claims that since the insured owed no pre-existing debt, the mere fact that he executed the notes raises a presumption that they were given in payment of the premiums, and that therefore the notes must necessarily be regarded as payments, unless the parties expressly agreed to the contrary; that the letter of June 24, 1913, conclusively shows payment; and that the letter of November 12, 1913, confirms this theory. When the insured signed the note dated April 10, 1913, he received the official- receipt already mentioned, and it will be assumed that he also received a letter like the one dated June 24, 1913, although it is not certain that he received any letter concerning the April note. Assuming, however, that he did receive a letter, the transaction would involve the note, the receipt" and the letter. The note explains that it is given on account of the renewal premium, and it expressly states that failure to pay the full sum of $170.13 on July 15, 1913, will cause the policy to lapse on that day and immediately make the note payable “to the extent of so much thereof as may be required to cover the pro rata premium” to the date of the cancellation of the policy. The note only obligates him to pay the pro rata part of $170.13 up to July 15,1913. It is true that the writing says that the maker promises to pay $170.13, but it is also true that the note nowhere states that the full sum of $170.13 shall, at any time, “become due and payable.” The maker has the option of paying the full sum, but he is not obliged to pay the whole amount, and the only penalty for
The plaintiff argues that the beneficiaries “have the right to insist that their policies shall not be forfeited, except as prescribed by the terms of the policies themselves.” The policies did not contain any agreement for a forfeiture in case of failure to pay a premium note, and the contention is that the beneficiary is not bound by a forfeiture clause appearing in the notes. The language employed in Fidelity Life Ins. Co. 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. 389), completely answers the plaintiff:
‘£ The parties had the same right to agree to the extension of the time for the payment of the premium and the setting forward of the time of forfeiture as they had to enter into the original contract of insurance. The beneficiary named in the policy had no vested rights in it, because it is expressly provided therein that the insured may change the beneficiary by the surrender of the policy. Besides, under the express terms of the policy, if the beneficiary was not changed, she did not have any rights under it, unless the premiums were actually paid.”
If the plaintiff has any rights at all, they are preserved by the notes, and, unless waived, the same provisions which-preserve those rights also measure them. It makes no difference whether the policy or the note alone contains the provision for the forfeiture of the policy if the premium note is not paid; in either event
The question of waiver and the claim that the company agreed to extend the time for the payment of the two 1913 notes may be considered together. At the very outset it must be conceded that forfeitures are not favored by courts, and that sometimes slight circumstances will be taken advantage of to avoid a forfeiture; but it must likewise be admitted that a forfeiture cannot be prevented unless warranted by evidence. The contention that there was an agreement for an extension grows out of the sale of 500 shares of stock of the Johnson Bradford Safe Company for $5,000 to one Oswell by E. P. Troeh, who was to receive a commission for the sale. Oswell gave two $2,500 notes, one of which was paid in June, 1913, and the second was liquidated on November 28, 1913. James M. French had introduced Troeh to Oswell, and on that account, when the first note was paid, Troeh divided his commission by giving $125 to French, who in turn divided that amount with another, so that French ultimately received only $62.50; and this is evidently the $62.50 which, on June 11,
The record may be searched from the beginning to the end, and it will be found that every act of the defendant is in complete harmony with the agreement evidenced by the note. In the case of each policy, the note, the receipt, the letter, the entries on the card and in the premium journal, and the letter of November 12, 1913, speak out in unmistakable terms with all the unwavering certainty of truth, and demonstrate that the parties agreed that the policies would terminate, one on July 15th and the other on July 24th. Both the insurer and the insured treated the policies as lapsed after July 24th; the company only claimed the pro rata portions of the 1913 notes, and no demand was made at any time for the full face of the notes, and neither note was, at any time, treated as a binding obligation for the full sum of $170.13. The company did not carry either note as an asset for more than the pro rata portion, although the premium journal and the card contained the entries already
There is no evidence to support a finding that there was an agreement to extend the time for the payment of the notes, and there is likewise a lack of evidence to sustain the claim of waiver, and therefore the judgment should be affirmed. Aeeirmed.
Concurrence Opinion
delivered the following specially concurring opinion:
This is an action to recover upon two insurance policies, in one of which the plaintiff herself is the beneficiary and in the other the assignee of the beneficiary. The question for decision is the same in both causes of action; hence they will be treated together. The transaction was initiated by the written application of the insured, James M. French, husband of the plaintiff, in which occurs the following clause :
“I hereby agree that the statements herein contained together with the statements made by me to the medical examiner and contained in part two of this application are hereby warranted to be true, full and correct as facts, and that this application together with the policy which may be issued, shall constitute the contract between me and the company.”
It is admitted by the pleadings that a policy was issued containing the following matter:
*433 - “This policy shall not take effect until the first premium shall have been actually paid during the good health of the insured. No premium after the first shall be considered paid unless a receipt shall be given therefor, signed by the president, a vice-president, or secretary, and countersigned by an agent authorized to receive such premium, nor shall any premium payment have the effect to continue this policy in force longer than for the period covered by such payment, except as otherwise provided herein. Agents are not authorized to make, alter or discharge contracts, or to waive forfeitures, or to waive or postpone payment of premiums.
“Should default be made in the payment of any premium within three years from the date hereof, this policy shall cease and determine, and, unless reinstated, all payments hereon shall remain the property of the company. The first year’s insurance hereunder is term insurance, and shall be valued as such.
“A grace of thirty-one days, during which the policy shall remain in full force, will be allowed in the payment of all premiums, except the first, subject to an interest charge of not to exceed six per cent per annum. ’ ’
There is no question about the payment of the initial premium. The dispute arises about the second one due March 11, 1913, and the plaintiff claims that her husband paid it by the delivery to the company of the instrument here quoted:
“$170.13. Portland, Oregon, April 10, 1913.
“On the 15th day of July, 1913, without grace, for value received, I promise to pay to the order of Columbia Life & Trust Company, at its office, in the city of Portland, Oregon, one hundred seventy and 13/100 dollars in TJ. S. gold coin, with interest thereon in like gold coin at the rate of six (6) per cent per annum, from the 11th day of March, 1913, until paid.
“This note is given on account of the renewal premium for the period of 12 months ending on the 11th*434 day of March, 1914, on policy No. 6551, issued to me by said Columbia Life & Trust Company.
“If this note is not paid, principal and interest, at the maturity thereof, said policy shall thereupon and on the 15th day of July, 1913, without notice or other action by said Columbia Life & Trust Company, lapse and become of no further force or effect; and thereupon this note shall, without notice or other action by said Columbia Life & Trust Company, immediately become due and payable, to the extent of so much thereof as may be required to cover the pro rata premium of the insurance under said policy to the date of such cancellation thereof.
“[Signed] James M. French.”
She avers that this was received by the company and the following receipt issued therefor:
“Columbia Life & Trust Company, “Portland, Oregon.
“No. 1695.
“Premium for one year $170.13, subject to note given in payment hereof.
“Premium as above received this 10th day of April, 1913.
“T. H. Richey.
“Received the annual premium due March 11, 1913, as per statement in the margin hereof, on policy No. 6551 insuring the life of James M. French. This receipt must be countersigned before delivery by T. H. Richey.
“M. M. Johnson,
“Secretary.”
For convenience the instrument executed by French and quoted above will be called a note. It is stated by both parties that this so-called note was not paid. Indeed, the plaintiff tenders with her complaint for the first time the full principal and interest thereof. It is alleged by the plaintiff and denied by the defendant that the latter extended the time of payment. The assured died December 19,1913. The company denied
From the complaint it is manifest that the assured did not fulfill the terms of the policy, and that if the plaintiff would prevail in this litigation, she must prove something else as the ground of her recovery. Although she is a beneficiary, she cannot take more than her husband provided for her by his contract of insurance and other transactions with the defendant. During the life of the policy she had interest enough therein as beneficiary to keep the insurance in force by paying the premium; but, in the present juncture, in the absence of any action on her part, her rights cannot arise above their source, namely, the action of her husband. As stated, in the complaint, the defendant is a corporation organized under the laws of the State of Oregon. It is said in Section 6691, L. O. L., that:
*436 “From the first meeting of the directors, the powérs vested in the corporation are exercised by them, ,or by . their officers or agents under their direction, except as otherwise specially provided in this chapter.”
It is not pretended anywhere in the pleadings or evidence that any action whatever was taken by the directors in relation to the matter in question. In law, the board is the person of the corporation, and the authority of agents and officers must be traced to and be shown to originate in its action. On the face of the documents offered in evidence, as well as by the testimony, all the transactions took place with agents of the company. It is a well-settled principle that one dealing with the agent of another does so at his own peril, and that it is incumbent upon him to prove, either the actual authority of the representative, or that the latter acted within the apparent sanction given him by his supposed principal. The phase of acting within the ostensible authority of the agent disappears, and cannot affect the case in the face of actual knowledge on the part of one seeking to charge the corporation that the agent was without authority to do the act upon which the moving party relies: Roberts v. Lombard, 78 Or. 100" court="Or." date_filed="1915-11-09" href="https://app.midpage.ai/document/roberts-v-lombard-6905023?utm_source=webapp" opinion_id="6905023">78 Or. 100 (152 Pac. 499); City of Portland v. American Surety Co., 79 Or. 38" court="Or." date_filed="1915-12-28" href="https://app.midpage.ai/document/portland-v-american-surety-co-6905149?utm_source=webapp" opinion_id="6905149">79 Or. 38 (153 Pac. 786). The insured stipulated by his application that it, together with the policy to be issued, should constitute the contract between himself and the company. He accepted the policy upon which the plaintiff relies and which contains this clause:
“Agents are not authorized to make, alter or discharge contracts, or to waive forfeitures, or to waive or postpone payment of premiums.”
Above all this, Section 4632, L. O. L., referring to life insurance companies, says:
*437 “No life insurance company or any of its representatives doing business in this state shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life in the amount of payment of premiums or rates charged for any of its policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; nor shall any such company or any representative thereof make any contract of insurance, or agreement as to such contract, other than as plainly expressed in the policy issued thereon; nor shall any such company or representative pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premiums payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any valuable consideration or inducement not specified in the policy contract of insurance. Every officer or agent of any such corporation who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor and shall be fined in any sum not exceeding $500 or imprisoned in the county jail not exceeding six months or both at the discretion of the court, with revocation of his license to do business in this state.”
The note mentioned was plainly an agreement as to the contract of insurance other than that expressed in the policy. The insured was charged with the knowledge of this law forbidding such a stipulation. By the terms of his own contract, he knew that no agent had any power to alter, discharge or waive any provision of the policy. There is nothing whatever in that instrument authorizing the acceptance of anything except money in settlement of the premiums, and it is plainly said that if default should be made in such payments within three years from the date of the policy, it should cease and determine. The law and the words of the contract of insurance could not
The scope of this statute and the reason of the rule it establishes is wider than the contention between the immediate parties before us. It declares a principle of public policy in this state regulating all life insurance, and putting that business on a sound financial basis. Like laws governing banks and other moneyed institutions, it aims to weed out unsound insurance. It is in the interest of not only any particular individual, but also of the general public, and it is in that light that the statute must be construed. . It is. on a parity with the provisions requiring such concerns to invest their capital in certain kinds of securities as in Section 4610, L. O. L., or compelling them to specify in their policies the amount and manner of payment of benefits as stated by Section 4629. The section under consideration specifically forbids distinction or discrimination in any of the terms and conditions of the stipulations an insurer makes. It goes further, and requires all the contract of insurance to be plainly “expressed in the policy,” and under criminal penalty explicitly interdicts any other “agreement as to such contract.” The original policy requires actual payment of a money premium in default of which the insurance lapses. Jones and Brown, insuring with the company, have thus liquidated the required fee for
It is argued that the policy does not state that it shall be forfeited for default in meeting a premium note at maturity. With equal force it may be said that it is not provided in the policy that any such instrument as the plaintiff relies upon shall be accepted as payment of a premium. The contract is equally obligatory upon both parties to it, and under the plain mandate of the law each of them must find relief only in the terms of the original policy. Upon the collection of premiums alone can any insurance institution expect to pay its obligations or do business at all without impairment of its capital and ultimate insolvency. The matter involved is not altogether the case of the French insurance. It affects everyone holding a policy in the defendant company. If would-be beneficiaries can force upon it dishonored paper as payment, or if it, however willing, may be permitted even to accept such a substitute, other policies it has issued will be impaired. The application of the doctrine for which the plaintiff contends will depreciate the value of every policy in this state, notwithstanding the careful legislation designed to strengthen insurance. Once the door is open to such a notion, the security of the frugal policy-holder who pays will be frittered away and wildcat insurance will be enthroned. While it may not be unlawful to insure people on the basis of taking notes for overdue premiums, yet the command of the law is that provisions to that end must be incorporated in the policy, so that those who contract for insurance may know in advance that the company
Passing this for the moment, it is well settled that a note is not payment unless there is an agreement that it should be so accepted: Black v. Sippy, 15 Or. 574" court="Or." date_filed="1888-01-04" href="https://app.midpage.ai/document/black-v-sippy-6895132?utm_source=webapp" opinion_id="6895132">15 Or. 574 (16 Pac. 418); Johnston v. Barrills, 27 Or. 251" court="Or." date_filed="1895-07-20" href="https://app.midpage.ai/document/johnston-v-barrills-6896835?utm_source=webapp" opinion_id="6896835">27 Or. 251 (41 Pac. 656, 50 Am. St. Rep. 717); Schreyer v. Turner Flouring Co., 29 Or. 1" court="Or." date_filed="1896-02-17" href="https://app.midpage.ai/document/schreyer-v-turner-flouring-co-6897049?utm_source=webapp" opinion_id="6897049">29 Or. 1 (43 Pac. 719); Kiernan v. Kratz, 42 Or. 474" court="Or." date_filed="1902-08-25" href="https://app.midpage.ai/document/kiernan-v-kratz-6899202?utm_source=webapp" opinion_id="6899202">42 Or. 474 (69 Pac. 1027, 70 Pac. 506); Stringham v. Mutual Ins. Co., 44 Or. 447" court="Or." date_filed="1904-03-14" href="https://app.midpage.ai/document/stringham-v-mutual-ins-6899511?utm_source=webapp" opinion_id="6899511">44 Or. 447 (75 Pac. 822). It is contended, however, that the assured was under no Obligation to pay any premium, and hence that he was not compelled to give the note. If anything, this proves too much, for if the defendant had undertaken to collect the note from him by action at its maturity, he could have defended against it for at least partial failure of consideration. But we are not left without evidence of the intent of the parties in the execution and reception of the note. They themselves put into that instrument the conditions governing their stipulation, conceding that authority existed for making the same. It is plainly written there that:
“If this note is not paid, principal and interest, at the maturity thereof, said policy shall thereupon and on the 15th day of July, 1913, without notice or other action by said Columbia Life & Trust Company, lapse and become of no further force or effect.”
It is true by the terms of that instrument the company retained the right to collect the pro rata premium to the date of cancellation, but even this clause signed
The plaintiff must rely on the so-called note if she recovers at all. She cannot take the part favorable to her and ignore the other conditions therein expressed. That instrument either affected the policy or it did not. If not, it is conceded that she has no standing in court; for the only pretense of compliance with the contract of insurance must be worked out through the note. If the policy was affected by it in respect to payment of the premium or otherwise, it must be according to all the conditions of the note, and not by part of them to the exclusion of others. It is primary learning that one who would rely upon an executory contract must allege and prove compliance with it on his part, and confessedly there was no semblance of performance of what was to be done by the assured under the terms of the note. Arnold v. Empire etc. Life Ins. Co., 3 Gra. App. 685 (60 S.E. 470" court="Ga. Ct. App." date_filed="1908-02-24" href="https://app.midpage.ai/document/arnold-v-empire-mutual-annuity--life-insurance-5602916?utm_source=webapp" opinion_id="5602916">60 S. E. 470), is a precedent cited and strongly relied upon by the plaintiff. It is distinguishable from the instant case by the fact that the company credited on the notes dividends earned by the policy. Expressly upon that feature the court held that the company was estopped to deny liability. Yet even under those circumstances the opinion contains this language:
“The company might have declared the policy avoided for the nonpayment of the first note at its maturity, and as it might still have held the insured as maker of the note for the proportionate part thereof equal to the portion of the premium for 1903, which*442 accrued up to the date of the maturity of the note this would not of itself have shown that the company waived its right to forfeit the policy, or that it had not availed itself of that right.”
Here the plaintiff herself shows that the defendant occupies exactly the position thus outlined by the Georgia court; and not only so, but she also sets out in her reply the letter of the defendant written to the assured November 12, 1913, distinctly notifying him that his policies had lapsed. How this can be tortured' into a waiver passes the most technical special pleading.
Again, in Arnold v. Empire Ins. Co., supra, there is this excerpt from Insurance Co. v. Eggleston, 96 U. S. 577, 24 L. Ed. 841" court="SCOTUS" date_filed="1878-04-29" href="https://app.midpage.ai/document/insurance-co-v-eggleston-89742?utm_source=webapp" opinion_id="89742">24 L. Ed. 841:
“Any agreement, declaration, or course of action on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.”
The dominant idea in the rule thus stated is that the assured himself, as well as the company, must comply with the new contract or arrangement into which he has been led by the insurer if the latter is to be estopped thereby; for it is elementary that estoppels must be mutually binding upon both parties.
Summers v. Des Moines Ins. Co., 116 Iowa, 593" court="Iowa" date_filed="1901-12-19" href="https://app.midpage.ai/document/summers-v-des-moines-insurance-7109962?utm_source=webapp" opinion_id="7109962">116 Iowa, 593 (88 N. W. 326), is cited in opposition to the views here expressed. That case depended upon a peculiar Iowa statute (Code, § 1741), as follows:
“All insurance companies or associations shall, upon the issue or renewal of any policy, attach to such policy, or indorse thereon, a true copy of any applica*443 tion or representation of the assured which, by the terms of such policy, are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy. The omission so to do shall not render the policy invalid, but if any company or association neglects to comply with the requirements of this section it shall be forever precluded from pleading, alleging or proving any such application or representations, or any part thereof, or falsity thereof, or any parts thereof, in any action upon such policy, and the plaintiff in any such action shall not be required, in order to recover against such company or association, either to plead or prove such application or representation, but may do so at his option.”
This enactment is not like ours. It does not forbid the making of any contract relating to the insurance involved. It only prevents the company from pleading or proving such a contract unless it is attached to or indorsed upon the original policy. The case is not in any wise an authority under our statute, which absolutely forbids the making of any agreement concerning insurance outside the policy itself. The same may be said of Lewis v. Insurance Co., 71 Iowa, 97" court="Iowa" date_filed="1887-03-07" href="https://app.midpage.ai/document/lewis-v-burlington-ins-7102565?utm_source=webapp" opinion_id="7102565">71 Iowa, 97 (32 N. W. 190), reported on second appeal in 80 Iowa, 259" court="Iowa" date_filed="1890-05-24" href="https://app.midpage.ai/document/lewis-v-burlington-insurance-7104500?utm_source=webapp" opinion_id="7104500">80 Iowa, 259 (45 N. W. 749), Provident Sav. Life Assur. Soc. v. Puryear, 109 Ky. 381" court="Ky. Ct. App." date_filed="1900-11-22" href="https://app.midpage.ai/document/provident-sav-life-assur-so-v-puryears-admr-7134538?utm_source=webapp" opinion_id="7134538">109 Ky. 381 (59 S. W. 15), Considine v. Mutual Life Ins. Co., 165 Mass. 462" court="Mass." date_filed="1896-03-10" href="https://app.midpage.ai/document/considine-v-metropolitan-life-insurance-6425565?utm_source=webapp" opinion_id="6425565">165 Mass. 462 (43 N. E. 201), and New Era Life Assn. v. Musser, 120 Pa. 384" court="Pa." date_filed="1888-05-14" href="https://app.midpage.ai/document/new-era-life-assn-v-musser-6238946?utm_source=webapp" opinion_id="6238946">120 Pa. 384 (14 Atl. 155). They are all illustrative of statutory regulations similar to that of Iowa quoted above. Bowyer v. Continental Casualty Co., 72 W. Va. 333 (78 S.E. 1000" court="S.C." date_filed="1913-05-13" href="https://app.midpage.ai/document/state-v-bethune-3878768?utm_source=webapp" opinion_id="3878768">78 S. E. 1000), enforces a similar statute, to the extent that an application, not copied into or attached to the policy issued upon it, although referred to in the policy as a basis thereof, could not be received in evidence to vary or affect the terms of the contract of insurance itself,
“But this well-recognized principle falls far short of sustaining plaintiff’s contention in this case. The question still remains, With what rights was she vested? This obviously depends upon the terms and conditions of the contract creating them. The husband assumed to act as her agent in the negotiation of a contract intended to be beneficial to her. He gave a consideration therefor, consisting partly of certain*445 executory promises. He secured the promise from the insurance company to pay money to the wife, in case of his death, by promising that such death should not, for two years at least, be the result of his own act, sane or insane. All this was so done as to disclose a clear intention on the part of both that no risk against such death should be assumed by the company. The wife, by asserting a claim on the policy, ratifies and affirms the contract as made by her agent, and that, too, subject to all its terms and conditions. She cannot avail herself of the promise to pay her the amount of the policy, and simultaneously repudiate the promise made by her husband, which was given to the insurer as a consideration for its undertaking. Neither can she enlarge the obligation of the insurer beyond the scope of that undertaken by it.”
In the instant case the beneficiary herself, the plaintiff here, did nothing whatever in the matter involved. All that was done was performed for her by her husband, upon whose actions alone she must stand or fall. She is compelled, under the very nature of the case, to rely upon the so-called note. She cannot take parts of this instrument which are favorable to herself and reject the rest of his written stipulation. She must take the good with the bad if she would act at all. This principle is stated in Guaranty Trust Co. v. Dinwiddie, 79 Or. 653" court="Or." date_filed="1916-03-28" href="https://app.midpage.ai/document/guaranty-trust-co-v-dinwiddie-6905256?utm_source=webapp" opinion_id="6905256">79 Or. 653 (156 Pac. 279), in Department No. 2 of this court, in which Mr. Chief Justice Moore and Justices Bean, Harris and the writer concurred. The principle is controlling here.
The quintessence of the case is that the plaintiff is relying upon a contract, not contained in the policy, which the assured knew the agents had no authority to make, forbidden, as it was, by the policy itself and by the statute; and, further, that even this invalid outside agreement has never been performed by the assured, nor anyone else on his behalf. No sophistry
The judgment should be affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
This is an action upon two life insurance policies issued by the defendant company upon the life of James M. French for $2,500 each, numbered 6551 and 6579, respectively. Upon the trial of the cause, at the close of all the evidence, the trial court directed a verdict in favor of the defendant. From a judgment thereon plaintiff appeals.
The following is shown by the record: In so far as material to this controversy, policy No. 6551, upon which the first cause of action is based, is, in substance, as follows:
“Columbia Life & Trust Company promises to pay, at the home office of the company, in Portland, Oregon, the sum of twenty-five hundred dollars (less any indebtedness hereon to the company, and any unpaid portion of the premium for the then current policy year), to James M. French, of Portland, county of Multnomah, State of Oregon, herein called the insured, on the eleventh day of March, nineteen hundred and thirty-two, if the insured be then living; or, to make such payment upon receipt at said home office of due proof of the prior death of said insured, to Elizabeth French, his wife, herein called the beneficiary, if said beneficiary be living; otherwise, to the executors, administrators or assigns of the insured, subject to the right of the insured to change the beneficiary, as hereinafter provided.
“This contract of insurance is made in consideration of the application for this policy, a copy of which is*447 hereto attached, and which application is hereby made a part of this contract, and in consideration of the first annual premium of one hundred seventy and 13/100 dollars, the receipt whereof is hereby acknowledged, for insurance, as herein provided, terminating on the eleventh day of March, 1913, and in consideration of the further payment of one hundred seventy and 13/100 dollars, to be made on or before every eleventh day of March hereafter during the first twenty years of the continuance of this policy.
“This policy shall not take effect until the first premium shall have been actually paid during the good health of the insured. No premium after the first shall be considered paid unless a receipt shall be given therefor, signed by the president, a vice-president, or secretary, and countersigned by an agent authorized to receive such premium, nor shall any premium payment have the effect to continue this policy in force longer than for the period covered by such payment, except as otherwise provided herein. Agents are not authorized to make, alter, or discharge contracts, or to waive forfeitures, or to waive or postpone payment of premiums.
‘ ‘ Should default be made in the payment of any premium within three years from the date hereof, this policy shall cease and determine, and, unless reinstated, all payments hereon shall remain the property of the company. The first year’s insurance hereunder is term insurance and shall be valued as such.
“A grace of thirty-one days, during which the policy shall remain in full force, will be allowed in the payment of all premiums, except the first, subject to an interest charge of not to exceed six per cent per annum.
“The mode of premium payment may be changed on any anniversary date, from annual to semi-annual, or quarterly, or vice versa, at the. premium rates in use by the company at the date hereof.
“In the event of default in the payment of any premium hereon, this policy may be reinstated upon evidence satisfactory to the company of the insurability*448 of the insured, and by the payment of all past-due premiums, with interest thereon at the rate not to exceed six per cent per annum. The policy reinstated will be subject to any unpaid indebtedness.
‘ ‘ Should there be any error in the statement of the age of the insured, it will be adjusted by the payment of such amount of insurance as the premium actually would have purchased at the correct age.
“This policy and the application therefor shall constitute the entire contract between the parties, and all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, unless a copy of snch statement shall be used in. defense to a claim under this policy unless it is contained in the written application therefor.
“This policy shall be incontestable after one year from its date, except for nonpayment of premium.
“The insured, subject to the rights of any assignee, may nominate a beneficiary or beneficiaries, provided none be herein named, or may change the beneficiary or beneficiaries at any time, during the continuance of this policy, by filing with the company a written request accompanied by this policy, such nomination or change to take effect upon the indorsement of same on the policy by the company.”
The second annual premium upon the policy became due by the terms thereof on March 11, 1913, and was not paid on that day, but James M. French availed himself of the 31 days of grace, and on April 10, 1913, for the second annual premium of $170.13, executed and delivered to the company his promissory note as follows:
“170.13.
Portland, Oregon, April 10, 1913.
“On the 15th day of July, 1913, without grace, for valued received, I promise to pay to the order of Columbia Life & Trust Company, at its office, in the city of Portland, Oregon, one hundred seventy and 13/100 dollars in U. S. gold coin, with interest thereon in like*449 gold coin, at the rate of six (6) per cent per annum, from the 11th day of March, 1913, until paid.
“This note is given on account of the renewal premium for the period of 12 months ending on the 11th day of March, 1914, on policy No. 6551, issued to me by said Columbia Life & Trust Company.
“If this note is not paid, principal and interest, at the maturity thereof, said policy shall thereupon and on the 15th day of July, 1913, without notice or other action by said Columbia Life & Trust Company, lapse and become of no further force or effect; and thereupon this note shall, without notice or other action by said Columbia Life & Trust Company, immediately become due and payable, to the extent of so much thereof as may be required to cover the pro rata premium of the insurance under said policy to the date of such cancellation thereof.
“[Signed] James M. French/'
Thereupon defendant executed and delivered to James M. French its receipt, as follows:
“Columbia Life & Trust Company, “Portland, Oregon.
“No. 1695.
“Premium for one year $170.13, subject to note given in payment hereof.
“Premium as above received this 10th day of April, 1913.
“T. H. Richey.
“Received the annual premium due March 11, 1913, as per statement in the margin hereof, on policy No. 6551, insuring the life of James M. French. This receipt must be countersigned before delivery by T. H. Richey.
“M. M. Johnson, “Secretary.
“ (For terms of mutual agreement see policy.) ”
On March 4,1914, the defendant presented its claim against the estate of French as follows:
Note due March 1, 1913............$170 13
June 11, 1913, paid................ 62 50
$107 63
Interest to March 4, 1914.......... 7 46
$115 09
Note for premium policy No. 6551 to July 15, 1913................. 58 59
Interest to March 4, 1914.......... 3 46
62 05
Note for premium policy No. 6579 to July 24, 1913................. 28 35
Interest to March 4, 1914.......... 1 30
29 65
E. and O. E. $206 79
The mode of premium payment as originally provided in the policy was never changed to a semi-annual or quarterly payment.
In her complaint plaintiff alleges, inter alia, that the note was not paid at maturity, but that James M. French was assured by defendant that he might protect the interests of the beneficiary under the policy by agreeing to apply, upon the amount of notes given for the premiums, a claim held by French against the Johnson-Bradford Safe Company, on account of commissions previously earned by him through the sale of its stock to one Oswell; that the sum of $125 was still due to French for commissions upon the sale of the stock, and that the defendant company, French, and the Johnson-Bradford Safe Company, and one Troeh, who had an interest in the commissions, agreed
“Policy No. 6551, Jas. M. French, lapsed on July 15, 1913. Policy No. 6579, Jas. M. French, lapsed on July 24, 1913. Under these circumstances there is no occasion for furnishing blanks for proof of claim as there is no claim. ”
Plaintiff tenders defendant all moneys due upon the notes in payment of the premiums, and also a portion of one given for the first premium upon the policy dated May 24, 1912, and consents that the court may deduct from the amount due upon the policies of in
For a second cause of action plaintiff declares substantially the same upon policy 6579, issued May 24, 1912, to James M. French, in consideration of the payment to it of the premium of $170.13 upon his life, in which Irene C. French, his daughter, was named as beneficiary, which policy was assigned to plaintiff after his death. The note given for the second annual premium due on the May policy, which was dated June 24, 1913, for $170.13 is of the same tenor and form as the note set forth above. Upon the execution and delivery of such note the defendant company delivered to James M. French a receipt of substantially the same purport as the one above stated, but the note was referred to therein as follows: “Given in accordance with note dated June 24th, 1913.” In connection with sending this receipt to French, the vice-president of the company wrote him a letter on June 24, 1913, in which he made the following statement regarding the payment of the premium, to wit:
“We are in receipt of your valued remittance, in payment of the premium on your policy, and have the pleasure of handing you the official receipt herewith. ’ ’
The other allegations are practically the same as in the first cause of action except as to dates and name.
In its answer the defendant admits the execution of the two policies and the notes for the second annual premiums, but denies that the premiums were thereby paid, alleging that a conditional receipt was given therefor as set forth in plaintiff’s complaint. The defendant denies that the conditional promissory notes were accepted by it in payment of the premiums; that under and by the terms of the conditional promissory
For answer to paragraph 9 of the first cause of action of the complaint the defendant “denies each and every allegation therein contained, except that this defendant denies any knowledge or information sufficient to form a belief as to whether or not there was still due to the said French for commissions on the sale of said stock in said paragraph set forth the sum of $125, and further except that this defendant admits that the conditional note in said paragraph referred to was not paid at the maturity thereof.”
For answer to paragraph 10 of the first cause of action the defendant “denies any knowledge or information sufficient to form a belief as to whether or not the said Oswell made his final payment upon the said corporate stock on December 1, 1913, and thereupon the said $125 due the said French on account of said commissions became immediately payable.”
Defendant admits that it still retains possession of the notes; that it refused to furnish blanks on which to make due proof of the death of James M. French, upon the ground that the policy had lapsed and was void, and that plaintiff had no claim thereunder; that this defendant was not liable theréfor; that at that time defendant wholly repudiated its alleged liability upon the policies; and that James M. French is dead.
In its further and separate answer the gist of the allegations of the defendant is:
“That the second annual premium upon the said policy of life insurance became due, by the terms thereof, on the 11th day of March, 1913. That the said James M. French wholly failed, refused and neglected to pay the same upon said date, and the said James*454 M. French represented unto the said defendant that he would pay said premium on or before July 15,1913, and requested the said Columbia Life & Trust Company to take his conditional promissory note therefor, payable on or before July 15, 1913, and to keep said insurance in force until said date, to wit, July 15,1913. That the said defendant agreed to accept the conditional promissory note of the said James M. French in the sum of $170.13, as herein alleged, and agreed to keep said-policy of life insurance in force until July 15, 1913, but if said conditional promissory note was not paid on said date, that said policy of life insurance should, on said date, to wit, July 15, 1913, lapse and become of no further force and effect. It was mutually-understood and agreed by and between the said James M. French and this defendant that said conditional promissory note so to be executed as aforesaid was not payment of said premium-then due on said policy of life insurance, but, on the contrary, the said Columbia Life & Trust Company agreed to keep .said policy of life insurance in force until July 15, 1913, and thereafter for the current policy year, provided that the conditional promissory note was paid in full at the date of maturity thereof, to wit, July 15, 1913. That pursuant to the agreement aforesaid, and within the days of grace allowed by said policy, the said Jas. M. French made, executed, and delivered to the Columbia Life & Trust Company his certain conditional promissory note, as set forth in the complaint. That thereafter the defendant issued to James M. French its conditional receipt for the conditional promissory note as set forth' in the complaint, no part of which was paid when the same became due or at any time thereafter. That after the notes became due James M. French was repeatedly notified and told that his policies of life insurance had lapsed and were of no force and effect, and on November 12, 1913, the company notified French to that effect in writing. That on or about February 20,1914, and after the Columbia Life and Trust Company had knowledge of his death, a clerk of the company, through a clerical error and mistake, mailed a notice to French as set forth in the*455 complaint. That by reason of the acts and facts herein set forth said policy of life insurance so issued on the life of James M. French lapsed and became void and of no further force and effect on the 15th day of July, 1913, and there is now nothing due on account of or by virtue of said policy of life insurance.”
For like reasons the May policy became void and lapsed on July 24, 1913. The reply puts in issue the new matter of the answer in so far as it varies from the complaint.
The substance of the evidence deemed necessary to note is as follows: Mr. S. P. Lockwood, vice-president of the company, was called as a witness by plaintiff, and testified in part that the first premium on the March policy was paid by note, and he believed the note was afterward paid; that when the premium on the March policy for the second year became due, it was not paid in money, but within the days of grace Mr. French gave a note in connection with that premium dated April 10, 1913; that the note was on that date entered on a record card as a premium payment and as a premium loan, and carried as an asset; that the company never offered to return the note to Mr. French before his death, to his knowledge, nor asked for a return of the policy; that it was not the practice of the company to demand a return of a policy ; that on February 22,1914, he had a talk with Mrs. French in regard to money due her husband from the Johnson-Bradford Safe Company, and said, “I told her the money had certainly not been paid to us, * * and did not know whether there was any money due,” but would inquire of Mr. Johnson, the secretary (who is also secretary of the Johnson-Bradford Safe Company, but not the Johnson for whom the safe company is named); that on the same day he, as vice-president of the company, wrote Mrs. French a letter which is in the record and states in part:
*456 “Our Mr. Johnson informs me that about Dec. 1st, the second installment of $2,500 on the stock of the Johnson-Bradford Safe Co. was paid to the Johnson-Bradford Safe Co., but that up to the present time the commission which was due Mr. Troeh on this installment, and included in which is any amount which was due Mr. French, has not yet been paid to Mr. Troeh—there being some agreement between Mr. Troeh and the Johnson-Bradford Safe Company under which Mr. Troeh is leaving the amount with them.”
Mr. M. M. Johnson, secretary and actuary of.the company, was also called by the plaintiff, and he testified that the books of the Johnson-Bradford Safe Company show that the $2,500 due December 1, 1913, given by Mr. Oswell for stock, was paid November 28, 1913, upon which the $125 commission was due French; that the books of the insurance company regarding these two notes show as follows:
“Policy number 6551, twenty year endowment, $2,500.00, second year annual payment $170.13, March 11, entered on the 10th day of April. J. M. French, premium note entered under renewal premium, pure 163.67, load 6.56.”
“Description of policy number 6579, twenty year endowment, amount $2,500, year, second, fraction, annual, amount of premium $170.13, due May 24. Entered June 24. J. M. French, premium note. Under' renewal premium pure 163.57, load 6.56.”
A similar entry in regard to the note given for the first annual premium is also shown on such books. Mr. Johnson further testified that the company’s books do not show that the notes were “charged off,” but that they were “considered charged off November 29, 1913”; that first premium notes are usually given to the agent and indorsed by him to the company and second premium notes are made to the company direct; that they investigated the financial standing of Mr. French before taking the notes and making the exten
Mrs. French, plaintiff, testified that Mr. French died December 19, 1913; that soon afterward she went to the office of the defendant and was told that the policies had lapsed; that she inquired of Mr. Johnson, the secretary, if a commission of $125 that Mr. French was to receive from the Johnson-Bradford Safe Company had not been paid and he said, “No”; that in three or four days she went to Johnson-Bradford Safe Company to get the commission, and Mr. Johnson informed her that the $2,500 note had been paid, but not the commission; that the $125 “belonged to the Columbia Life”; that her husband had left a check or arranged so “it was to be paid to the Columbia Life as soon as the note was paid,” the $2,500 note; that the $125 payment was for premiums already earned; that she asked if it “was usual for a man to pay on a lapsed policy”; and that afterward Mr. Lockwood wrote her the letter above referred to.
Edwin Lindstedt, witness for plaintiff, stated, in substance: That about December 23, 1913, he went to the office of defendant after the death of Mr. French and asked for blanks to prove the same. That Mr. Johnson said the policies were not in force, and when he inquired about the $125 commission, said “French made arrangement that that commission when (paid) should go direct to the Columbia Life to be applied upon the insurance policies.” That the $2,500 note has not been paid. The witness stated that after he talked with Mr. Oswell he went to Mr. Johnson and told him he understood the $2,500 note was paid. That Johnson said: “It may have been paid. I see there is a commission due in. the morning mail.” That witness claimed a part of the commission, but that French had a right to use it.
A motion for a nonsuit was interposed by defendant and overruled, whereupon T. H. Richey, general agent of the insurance company for Portland, testified for defendant that it was his duty to see to the collection from policy-holders; that he had several interviews with Mr. French in respect to the payment of his premiums; that between the dates of maturity of the notes for the second premiums and about November 1, 1913, he tried to get him to reinstate his policies, and called his attention to the amount he would have to pay on a pro rata basis, even though he did not reinstate his policy; that Mr. French was very anxious to reinstate his policy, but was very hard up; that French said he was very sorry the policies had lapsed because of the terms of the note. The testimony of plaintiff’s witness in regard to the statements made by Mr. Johnson, secretary of the insurance company, in regard to the arrangement for the payment of the $125 commission to that company on the policies, was not contradicted.
It is contended by counsel for plaintiff that the second annual premiums on the policies were paid by the two notes given by French; that at that time French was under no legal obligation to pay the second annual premium, and there was then no preexisting debt owing to defendant; that in such case the presumption is that notes were taken in payment of the legal obligation created at the time the notes
We will first take up the matter of the forfeiture clause in the premium notes, and for a better understanding will refer to some of the general rules of law as announced by the courts and text-writers. As has been stated, may times, the law does not favor forfeitures, and very slight circumstance will be taken advantage of to avoid the effect of a forfeiture: Security L. & A. Co. v. Underwood (Tex. Civ. App.), 150 S.W. 293" court="Tex. App." date_filed="1912-06-20" href="https://app.midpage.ai/document/security-life--annuity-co-of-america-v-underwood-3937845?utm_source=webapp" opinion_id="3937845">150 S. W. 293; Insurance Co. v. Norton, 96 U.S. 234" court="SCOTUS" date_filed="1878-02-18" href="https://app.midpage.ai/document/insurance-co-v-norton-89700?utm_source=webapp" opinion_id="89700">96 U. S. 234 (24 L. Ed. 689). It is said in 2 May on Insurance (4 ed.), Section 341, in effect, that if the policy by its terms is forfeitable for nonpayment of premium, or any note, given for a premium, when due, a failure to pay at maturity a note given for a premium, or any installment
“But when the policy is forfeitable for nonpayment of the premium, but does not distinctly provide that the nonpayment of a note given therefor at maturity shall work a forfeiture, as this clause is inserted for the benefit of the insurers it must be taken most strongly against them, and the nonpayment of the note at maturity will not work as a forfeiture. The courts will not extend the operation of a condition, the breach of which involves a forfeiture, to a case not clearly within it. # * ”
Much to the same effect, see, also, 2 Joyce, Insurance, § 1211; 2 May, Insurance, §§ 468, 469; Dwelling-House Ins. Co. v. Hardie, 37 Kan. 674" court="Kan." date_filed="1887-07-15" href="https://app.midpage.ai/document/dwelling-house-insurance-v-hardie-7887078?utm_source=webapp" opinion_id="7887078">37 Kan. 674 (16 Pac. 92); Arnold v. Empire Mutual Ins. Co., 3 Ga. App. 685" court="Ga. Ct. App." date_filed="1908-02-24" href="https://app.midpage.ai/document/arnold-v-empire-mutual-annuity--life-insurance-5602916?utm_source=webapp" opinion_id="5602916">3 Ga. App. 685 (60 S. E. 470); McGehee v. Rinker, 9 Ga. App. 147" court="Ga. Ct. App." date_filed="1911-04-03" href="https://app.midpage.ai/document/mcgehee-v-rinker-5604837?utm_source=webapp" opinion_id="5604837">9 Ga. App. 147 (70 S. E. 962); Fidelity Mut. Life Ins. Co. v. Goza, 13 Ga. App. 20" court="Ga. Ct. App." date_filed="1913-06-25" href="https://app.midpage.ai/document/fidelity-mutual-life-insurance-v-goza-5606474?utm_source=webapp" opinion_id="5606474">13 Ga. App. 20 (78 S. E.. 735); Columbia etc. Ins. Co. v. Mulkey, 13 Ga. App. 508" court="Ga. Ct. App." date_filed="1913-08-25" href="https://app.midpage.ai/document/columbian-national-life-insurance-v-mulkey-5606717?utm_source=webapp" opinion_id="5606717">13 Ga. App. 508 (79 S. E. 482); Union Cent. Life Ins. Co. v. Buxer, 62 Ohio St. 385 (57 N. E. 66, 49 L. R. A. 737); Montgomery v. Phoenix M. Life Ins. Co., 14 Bush, 51" court="Ky. Ct. App." date_filed="1878-06-06" href="https://app.midpage.ai/document/montgomery-v-phoenix-mutual-life-insurance-7379581?utm_source=webapp" opinion_id="7379581">14 Bush (Ky.), 51; McAllister v. Northeastern Mut. Life Ins. Co., 101 Mass. 558" court="Mass." date_filed="1869-03-15" href="https://app.midpage.ai/document/mcallister-v-new-england-mutual-life-insurance-6415709?utm_source=webapp" opinion_id="6415709">101 Mass. 558 (3 Am. Rep. 404); Insurance Co. v. French, 30 Ohio St. 240 (27 Am. Rep. 443); Thompson v. Insurance Co., 104 U.S. 252" court="SCOTUS" date_filed="1881-12-19" href="https://app.midpage.ai/document/thompson-v-insurance-co-90451?utm_source=webapp" opinion_id="90451">104 U. S. 252 (26 L. Ed. 765).
It has been held that where the policy provides for a forfeiture thereof for the nonpayment of the premium or a premium note, the right to declare such forfeiture may be waived by the insurer, and that whether the insurance company, has exercised its option to declare a forfeiture of the policy or waived its rights to do so, where such an issue is raised, is a question of fact for the determination of the jury under all the circumstances of the case: Security L. & A. Co. v.
It has also been held that an unconditional demand for payment followed by proceedings to collect a past-due premium note, operates as a waiver: 3 Cooley, Insurance Briefs, §§ 2724, 2726. See, also, Federal Life Ins. Co. v. Warren (Ky.), 181 S.W. 331" court="Ky. Ct. App." date_filed="1916-01-14" href="https://app.midpage.ai/document/federal-life-insurance-v-warren-7143071?utm_source=webapp" opinion_id="7143071">181 S. W. 331.
We will hereafter refer to only one policy, as the same discussion will apply to both. In the present case the provisions in the policy plainly direct that any indebtedness thereon to the company shall be deducted from the amount to be paid to French or the beneficiary named. It is also clearly stipulated therein that the “policy and the application therefor shall constitute the entire contract between the parties.” A clause to the same effect is contained in the application. There is no provision for a forfeiture thereof on account of the nonpayment of a premium note. At the time the premium was due the company did not insist upon a forfeiture in case of nonpayment, as. it had a right to do. On the contrary, as set forth in the answer and claimed in the brief of defendant, the company extended the time of payment and accepted
“Nor shall any such company or representative thereof make any contract of insurance, or agreement as to such contract, other than as plainly expressed in the policy issued thereon.”
While there is some divergence in the opinions of the courts upon the question of forfeiture of an insurance policy, which is in the main due to the variant facts in the cases considered, our statute above noted directs with which line of decisions those of the courts of this state should be classed. In Mutual Life Ins. Co. v. Kelly, 114 F. 268" court="8th Cir." date_filed="1902-02-17" href="https://app.midpage.ai/document/mutual-life-ins-v-kelly-8746873?utm_source=webapp" opinion_id="8746873">114 Fed. 268 (52 C. C. A. 154), a case before the Circuit Court of Appeals, Judge Adams construes a statute of the State of Iowa, similar to ours, which contains this clause:
“Nor shall any company or any agent thereof make any contract of insurance or agreement as to such contract, other than is plainly expressed in the policy issued thereon.”
At page 272 of 114 Fed., at page 158 of 52 C. C: A., of the opinion he clearly states the purpose of this statute thus: -
*463 “The act ox Iowa, supra, in onr opinion, creates no exception to the foregoing general rule governing the interpretation of contracts. That act was obviously intended for three purposes: (1) To prevent discriminations in favor of particular insurants; (2) to secure that certainty with respect to the rights and duties of the parties which is always best attained by written agreements; (3) to provide a ready and available method by which the insured or assured may, at all times have before them the covenants and agreements which they are required to observe or perform.”
We also find the following at page 274 of 114 Fed., at page 160 of 158 C. C. A.:
“It cannot be disputed that plaintiff, who was Kelly’s wife and beneficiary in the policy in question, had a certain vested interest in the policy immediately .upon its issue; such an interest, in fact, that neither Kelly nor the insurer, nor both, could, by appointment or agreement, take from her without her consent. Her rights were created by the contract, and she, as one of the parties thereto, must, on familiar principles, consent to any deprivation, modification or change of such rights before the same can be accomplished: Bank v. Hume, 128 U.S. 195" court="SCOTUS" date_filed="1888-11-12" href="https://app.midpage.ai/document/central-bank-of-washington-v-hume-92324?utm_source=webapp" opinion_id="92324">128 U. S. 195, 206 (32 L. Ed. 370, 9 Sup. Ct. Rep. 41), and cases cited.”
In Bowyer v. Continental Casualty Co., 72 W. Va. 333" court="W. Va." date_filed="1913-04-22" href="https://app.midpage.ai/document/bowyer-v-continental-casualty-co-8177205?utm_source=webapp" opinion_id="8177205">72 W. Va. 333 (78 S. E. 1001), we find:
“The purpose of statutes of this kind, as declared by the courts, in other states, is to require the contract to he so formed as to enable the insured or assured at all times to have before him the covenants and agreements which he is required to observe or perform and relieve him from the burden of relying upon his recollection of the terms of his contract.”
To the same effect, see Provident Sav. Life Assur. Sog. v. Puryear’s Admr., 109 Ky. 381" court="Ky. Ct. App." date_filed="1900-11-22" href="https://app.midpage.ai/document/provident-sav-life-assur-so-v-puryears-admr-7134538?utm_source=webapp" opinion_id="7134538">109 Ky. 381 (59 S. W. 15). The Iowa Code provides that an insurance company which neglects to attach to or indorse on its policies
James French, the insured, died on December 19, 1913, while the policy was still in force. The insurance company waived formal proof of death. There is no controversy in regard thereto. The trial court erred in directing a verdict and entering judgment in favor of defendant. Under the facts in this case the, judgment of the lower court should be reversed and the cause remanded for a new trial.
Rehearing
Denied May 16, 1916.
Petition for Rehearing.
(156 P. 1058" court="Or." date_filed="1916-04-25" href="https://app.midpage.ai/document/portland-v-portland-ry-l--p-co-6905304?utm_source=webapp" opinion_id="6905304">156 Pac. 1058.)
delivered the opinion of the court.
We have read with great care and consideration the appellant’s able petition for rehearing, but find nothing contained therein that had not already received the most earnest consideration of this court prior to the preparation of the opinions heretofore handed down. We have given much time and thought to the arguments and authorities cited by appellant and have examined the testimony very thoroughly and carefully. In addition to this, we have heard a reargument of the case by the learned counsel for both parties, and we see no reason for any change or
Affirmed. Rehearing Denied.