63 Ill. App. 188 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
The defendant in error recovered judgment on a life insurance policy, to reverse which, this writ of error is prosecuted. The errors assigned relate to the admission of evidence, the giving and refusing to give instructions, and overruling the motion for a new trial.
The certificate of the clerk to the record shows that it does not contain all the evidence; it specifies a number of papers that were read in evidence that are not in the record; therefore this court can not consider the error assigned that the verdict and judgment is not supported by the evidence, but notwithstanding such omissions, can consider the errors assigned on the ruling of the court on the admission or rejection of evidence, and the giving or refusing to give instructions. I. C. R. R. Co. v. O’Keefe, 154 Ill. 508.
The only error really discussed is that relating to the admission of evidence to show a waiver of the condition of the policy that the assured should not go into certain prohibited territory, and the giving of instructions based thereon. The assured went to, and lived for a time in the State of Texas, without the consent of the company, where he died, which was prohibited by the policy.
The authorized agent of the company received several premiums, and gave receipts therefor, after he knew that the assured had gone to the State of Texas, and stated, when informed of the fact, that it did not make any difference where the assured was. It seems that the agent did not inform the home office of the fact of such change of residence. The receipts that were given contained the following printed matter: “ Agents holding an appointment from the company are authorized to receive premiums at or before the time when due, upon the receipt of the president or secretary of the company, but not to make, alter or discharge any contracts, or waive any forfeitures. This receipt is not valid until countersigned by the agent of the company.”
The court instructed the jury in effect that if they believed from the evidence a duly authorized agent of the company received such premiums after notice of such change of residence, and the company retained the same, then it “ became as much bound as if the premium had been paid directly at the home office in New York, and had been received there with a full knowledge of the change of residence * * * and this regardless whether the agent informed the company of the violation of the policy or not.”
The plaintiff in error contends this is not the law. Our Supreme Court is committed to the doctrine that such facts would constitute a waiver of the right to declare a forfeiture. The Illinois Fire Ins. Co. v. Stanton, 51 Ill. 354; The Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; The N. B. & M. Ins. Co. v. Sterger, 124 Ill. 81; Phenix Ins. Co. v. Hart, 149 Ill. 513, 523. In the latter case the question of the right of a local agent to waive a right to forfeiture was discussed. It is there said, p. 524, “ The stipulation in the policy that the waiver could be made only by indorsement upon the policy by the general agent at Chicago, was inserted for the benefit of the insurer, and, like any other clause or condition of the policy, might be waived by the company. As we have seen, notice to the agent of matters falling within the general scope of his apparent authority is notice to the principal and the company may be estopped from asserting a forfeiture of the policy by the knowledge of its agent of facts which would justify it in declaring the forfeiture, which right it has failed to exercise, but instead has treated the policy as in force. * * * Independently of whether the local agent was authorized to waive the indorsement of consent upon the policy, the company being chargeable with notice of the fact that the assured was relying upon the policy as valid insurance and having failed to exercise its right of forfeiture until a cause of action accrued upon the policy, must be held to have waived the necessity of such indorsement of consent. It would be most inequitable to permit the company to insist upon the forfeiture after the fire, when, by its silence and apparent acquiescence in the validity of the policy, the assured had been led to rely thereon and prevented from obtaining other insurance.”
In that case it will be observed by reading p. 523, that the company insisted, as here, that as the insured had notice of the stipulation in the policy and of the limitation of the local agent’s authority that he could not have been misled by any apparent authority with which the agent was clothed.
Another objection to the instructions is that they assume the payments were made upon terms and conditions. The language thus used is subject to criticism, but it evidently refers to the undisputed fact that the agent was informed of the place where the assured was living at the time of such payments, and to the assurance given by the agent that such fact made no difference.
Under the facts as indisputably proven, the defendant in error was entitled to recover, in which case it is not every error that will cause a reversal.
As counsel'have not discussed the other assignments of error, we will not do so, or do more than state they have been examined and are not deemed well founded. The judgment is affirmed.
