Jennings v. Metropolitan Life Insurance

| Mass. | Nov 28, 1888

W. Allen, J.

Baldwin testified, that, after sending the proof of death to the defendant, he received the answer through Bailey as from the company, that “ somebody wrote to the company that something was wrong some way, and I must wait a little longer,” and that “ the case was all right, and if I would wait a little while he would pay me the money.” Bailey was the defendant’s superintendent at Fall River, his certificate accompanied the proof of death, and the check in settlement of the claim was to be sent to him. Bailey was a witness for the defendant, and did not contradict this testimony of Baldwin, nor deny that the defendant sent the answer to the proof of death to Baldwin through him. From this evidence, without other proof of Bailey’s agency, the jury would have been justified in finding that the company itself, by the answer which it sent to Baldwin to the claim and proof made by him, waived any informality or insufficiency in the proof. Clark v. New England Ins. Co. 6 Cush. 342. Underhill v. Agawam Ins. Co. 6 Cush. 440. Little v. Phœnix Ins. Co. 123 Mass. 380" court="Mass." date_filed="1877-11-19" href="https://app.midpage.ai/document/little-v-phœnix-insurance-6419055?utm_source=webapp" opinion_id="6419055">123 Mass. 380.

Samuel W. Ashton was counsel for Baldwin, and after the appointment of the plaintiff as administrator was counsel for both him and Baldwin. His conversations with Bailey, as testified to by him and by Bailey, are sufficient to justify the jury in finding that the provision of the policy, that no action should be commenced after six months from the date of the death, as well as that relating to proof of death, were waived by the defendant, if Bailey had authority to waive the provision or to make the statements which it is testified that he made. If the delay to bring suit was caused by assurances, for which the company was responsible, that it would pay if the demand was just, it is estopped to set up as the defence to a just claim that the action was not sooner brought. The testimony of Mr. Ash-ton, that he was kept from bringing the action by the declarations of Bailey, was competent only to show that the plaintiff acted upon such representations, so that the defendant might be estopped if it made or was responsible for the representations.

It will be observed, that the authority called for* is not to make a contract, or to waive a forfeiture. It does not relate to the substance of the contract, or the remedy, or extend to creating or reviving a liability. It is authority to do that which may estop the company from insisting on the condition that the action shall be commenced within a particular time. The policy provides that agents are not authorized to make, alter, or discharge contracts, or waive forfeitures. There is nothing in this provision to prohibit a superintendent from making such representations and giving such assurance as, if acted on, may estop the company from taking advantage of the six months’ limitation. There was no direct evidence as to the authority and duty of the superintendent. Bailey was the only witness in regard to this, and, when asked by the defendant what his duties as superintendent were, his answer was negative, — that he could neither make nor waive contracts, — and referred to the condition in the policy in regard to agents. He said, in answer to a particular question, that he looked after getting insurance, and forwarded applications and proofs of death to the company; but he did not say that there was any limitation on his authority to act for the company, except what might be found in the provision in the policy, before referred to, in regard to the authority of agents. He said, on cross-examination, that he solicited insurance, but did not make the contracts; that he felt authorized in saying that, if the contract was all right, it would be paid; and that he had authority to pay every time the claim was just. He was the superintendent in Fall River of an insurance company of another State, which does not appear to have had any other general agent in this State. In this particular case he received the proof of death, and put his certificate upon it, if he did not forward it to the company, and the check in settlement was to be sent to him. The answer of the company .to Baldwin’s claim and proof of death was made through him. The policy and receipt-book containing entries of premiums paid were sent to the company through him by Baldwin, and the written demand on the company for their return was delivered to him by Mr. Ashton, and they were returned to Mr. Ashton by him. Upon the whole evidence, we think it was a question for the jury, not only whether Bailey was not authorized under his general authority to waive the provision of the policy in question, but whether he was not specially authorized to represent that the company would make no question except upon the justice of the claim, and would not take advantage of delay in bringing an action. Baldwin is the beneficiary and the party in interest in this suit; whether he could or could not have maintained an action in his own name, any waiver to him or his counsel of the conditions of the policy will enure to the benefit of the plaintiff in this suit.

In the opinion of a majority of the court, the entry must be,

Exceptions overruled.