| Ark. | Jul 22, 1907
(after stating the facts.) 1. Appellee contends here that the proof does not show that the policy was forfeited on account of the nonpayment of dues. But appellee tried the case in the court below upon the theory that the policy had been forfeited, but that such forfeiture was waived by the act of appellant’s agents in receiving the dues after the forfeiture for nonpayment. No issue was made in the court below as to non-forfeiture, and none could be made here.
2. The court instructed the jury at the'instance of appellee that if the forfeiture resulted from the nonpayment of dues, and was known to the agent of appellant, and if such agent thereafter received and collected the amount of the dues in arrears, this would constitute a waiver of the forfeiture. The court further, instructed that: “If the plaintiff relies for recovery on the defendant waiving the forfeiture on account of the nonpayment of assessments for a longer term than four weeks, the plaintiff must show by a preponderance of the testimony that the defendant authorized said waiver by its agents or ratified the act of its agents in waiving said forfeiture.”
The appellant contends that the instructions were erroneous tor the reason that the agents who collected and held the money were not authorized, under the terms of the policy, to collect the assessments and thereby waive a forfeiture after same had occurred, but .that they were expressly prohibited from waiving such forfeiture. Appellant contended that a waiver of this kind under the express provisions of the policy could only be effected “in writing signed by either the president, vice-president or secretary.” Appellant asked instructions in conformity with its contention, which the court refused. Appellant relies upon the authority of Fidelity Mutual Life Ins. Co. v. Bussell, 75 Ark. p. 25, for reversal on the issue of waiver of forfeiture. But in that case the facts were different. The waiver in that case was-by a mere local agent, who had only power to solicit insurance and collect premiums. If the waiver in this case had been by McCain, who was a mere local agent with authority to solicit insurance and collect premiums, the analogy would be perfect, and Fidelity Mutual Life Ins. Co. v. Bussell, supra, would control. But here, after the past-due assessments were received by McCain, he forwarded same to Metlock, who accepted same. He, Metlock, was “the superintendent of agencies.” While the duties of that position are not more particularly explained, it indicated far more than mere local power, and, for aught that the proof shows to the contrary, may have embraced the authority and power to superintend agencies whose duties it was to pass upon applications for and to issue policies of insurance. It is a broad term, and, without more definite and specific limitations, may be taken to indicate very general powers. Furthermore, Metlock had power, and it was his duty, to adjust and settle claims. This would certainly include authority to waive a forfeiture. The proof certainly showed that he had authority to adjust and settle claims. For he undertook to settle her entire claim for the sum of $28.50, giving her this amount and taking her receipt “in full settlement of all claims and demands against” the company “arising under or by reason of the policy.” The receipt itself shows that Metlock had power to waive a forfeiture. For how could he adjust and settle a claim of $210, that had been forfeited, for $28.50 unless he had the power to waive the forfeiture ? The very fact that he settled the claim, as he supposed he had done, shows that he had waived the alleged forfeiture. One can not settle a forfeited claim without waiving the forfeiture. It would involve a contradiction in terms. It is not pretended by appellant that Metlock did not have authority to “adjust and settle claims.” This being true, appellant can not be heard to. say that he did not also have authority to waive forfeitures. The instructions should have told the jury that the waiver could only have been made by an agent acting within the scope of his authority. But, as the uncontroverted proof showed that Metlock was acting within the scope of his authority in making the waiver, the giving of the instructions without the qualification indicated was not prejudicial. The case is ruled on this point rather by the principles announced in Queen of Arkansas Fire Ins. Co. v. Cooper-Cryer Company, 81 Ark. 160" date_filed="1906-12-17" court="Ark." case_name="Queen of Arkansas Insurance v. Cooper-Cryer Co.">81 Ark. 160, than by Fidelity Mutual Life Ins. Co. v. Bussell, supra.
2. The court was warranted, from the circumstances set forth in the statement of facts, in submitting to the jury the question of whether or not the receipt which appellant obtained from appellee in full acquittance of her claim was a fraud upon her rights. The question as to whether or not the receipt was fraudulently obtained was properly submitted in appellee’s instruction number 2. It was a jury question.
3. Tlie jury having determined, upon evidence sufficient here, that the receipt was fraudulently obtained and therefore void, it was not a prerequisite to the maintenance of appellee’s suit -that she should have tendered to appellant the amount she had been paid. St. Louis, I. M. & S. R. Co. v. Smith, 82 Ark. 105" date_filed="1907-02-04" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Smith">82 Ark. 105, and authorities cited. The jury made a deduction in their verdict of the amount that had been paid. Moreover, the question is raised here for the first time. It could not avail also for that reason.
We find no prejudicial error, and the judgment is therefore affirmed.