205 P. 669 | Mont. | 1922
prepared the opin ion for the court.
The complaint, in substance, alleges: That the defendant Montana Life Insurance Company was at the times mentioned, and still is, a corporation under the laws of Montana, and that George M. Guteh was the general agent of said company. That Gutch was engaged in soliciting business for his company, and while doing so it was his general practice and custom as such general agent to represent to prospective and actual patrons of his company that the insurance contemplated was binding from the date the first year’s premium was paid, provided the medical examination by the company’s examiner was favorable and showed the applicant to be a good risk, and that in the course of such business he had procured many profitable contracts of insurance for said life insurance com-
“No. 4677. Sept. 10, 1918.
“Received this day from Horace B. Mayfield the sum of forty-five and 5/100 ($45.05) dollars in cash, in full payment of the first annual premium of $45.05 on a life insurance policy of one thousand dollars applied from the Montana Life Insurance Company, of Helena, Mont. This receipt is issued by the company subject to the terms and conditions printed on the other side hereof.
“[Signed] Montana Life Insurance Company,
“By J. M. Miller, Secretary.
“Not valid unless signed by George M. Gutch, agent.
“Signed this - day of -, 191—.
“[Signed] George M. Gutch, Agent.”
That on the back of the said receipt is printed in small type the following words, to-wit: “Terms and Conditions. (1) The applicant agrees to be promptly examined by a regular appointed medical examiner of the company. If the applicant fails to present himself for such examination within a period of 60 days from the date of this receipt, the amount paid by the applicant shall, at the option of the company, be forfeited to the company. (2) The insurance applied for by the terms of this receipt shall take effect upon the date of approval of same at the home office of the company, after the full premium thereof has been paid in cash, otherwise said insurance shall not take effect until the unpaid balance of the premium has been paid to the company or its agent. (3) If the insurance as hereby applied for is not approved by the company within 60 days of the receipt of the com
It is further alleged that the above-mentioned “terms and conditions” numbered 1, 2, and 3 were not considered as a part of said insurance contract by either of the parties thereto, and that they were no part of said contract of insurance, that Guteh as such general agent agreed with Mayfield to have said insurance contract embodied into a written policy of insurance to be executed and delivered to him within a reasonable time, but that the insurance company has negligently and illegally refused to issue said policy.
It is further alleged that on or about September 10, 1918, at the special request of Guteh, as general agent of the insurance company, Mayfield went to Dr. E. P. Colvin, an examining physician duly appointed by and acting for said insurance company, and was duly examined in the manner required by the insurance company, which examination was favorable and of such disclosures and nature as to warrant and justify the insurance as agreed upon and disclosed that Mayfield was a good insurance risk at that time, as contemplated in said life insurance contract, and thereupon and at that time the said Guteh again informed him that he was insured in the Montana Life Insurance Company in the sum of $1,000, and that, in case of his death, his wife would receive from the Montana Life Insurance Company the sum of $1,000, and that said Montana Life Insurance Company would be obligated to pay said $1,000 from that date.
The complaint further alleges that Mayfield was especially desirous of having his life insured at that particular time for the reason that he then contemplated a trip from his ranch in Carter county, Montana, to St. Louis, Missouri, with several carloads of horses, and for the further reason that at that time there was an epidemic of influenza prevalent among
It is further alleged that on or about said tenth day of September, 1918, Mayfield started on his trip with said horses; that he contracted the influenza, and as a result thereof died at St. Louis, Missouri, on October 20, 1918; that on the thirty-first day of October, 1918, the plaintiff, wife of the deceased Mayfield, and beneficiary under the alleged contract of insurance, furnished the insurance company with notice and proof of the death of Mayfield, and in all respects has performed the conditions of the insurance contract on her part; but that the insurance company has refused to'pay her said $1,000, and denies any liability on said contract. The complaint further shows that the insurance company retained the $45.05 premium paid by Mayfield until some time in the month of December, 1918, when a check for the amount thereof was delivered to the plaintiff by the company, which she declined to accept and afterward returned to the company.
To this complaint the defendants interposed a general demurrer, which was sustained by the court. The plaintiff elected to stand upon her complaint, and judgment was entered against her, dismissing the complaint, from which judgment she has appealed to this court.
The authorities are agreed that, in the absence of a statute
It is to be observed that the entire transaction between the
In the case of Fraser v. Home Life Ins. Co., 71 Vt. 482, 45 Atl. 1046, the question was presented whether an extension of time for payment of a premium on a life insurance policy had been made so as to bind the company. The policy contained a provision to the effect that “No agent has power on behalf of the company * * * to extend the time for paying a premium.” The extension had been granted by a general agent, and the court, in holding that the company was bound, said: “ £A general agent, in absence of proof to the contrary, is presumed to possess authority to transact the business of the company generally,’ certainly such business as related to the procurement and continuance of risks. He was the company’s alter ego.”
In 3 Cooley’s Briefs on the Law of Insurance, page 2478, speaking of the authority of agents to waive conditions and forfeitures, it is said: “The extent of an agent’s power to waive conditions and forfeitures is, of course, dependent on the extent of his authority to act for the insurer. If he is a general agent, his power to waive conditions and forfeitures is, according to the weight of authority, coextensive with that of the insurance company itself.” And in support of the text the author cites a long line of authorities.
While some of the authorities cited are cases involving fire insurance contracts, so far as the question involved in this case is concerned, that is immaterial, for in the authority last referred to, at page'2479, it is "said: “With reference to waiver, no distinction seems to be made between the power of a general agent of a life insurance company and that of a fire insurance company.”
In the case of Halle v. New York Life Ins. Co., 22 Ky. Law Rep. 740, 58 S. W. 822, it appeared that “Joseph Halle was a citizen of the city of Manaos, Brazil, South America, and on September 21, 1892, at the solicitation of one Garcia,
This language is particularly applicable to this case, where it appears from the allegations of the complaint that the ap
The Halle Case is referred to and explained in Mohrstadt v. Mutual Life Ins. Co. of New York, 115 Fed. 81, 52 C. C. A. 675, when the court, referring to this case, said: “The court found that there was a complete oral agreement for temporary insurance, and that this contract continued in force pending a proposition by the company to make a different contract than the one applied for, or, in other words, until there had been a final termination of pending negotiations.”
In a later Kentucky case, Northwestern Mutual Life Ins. Co. v. Neafus, 145 Ky. 563, 36 L. R. A. (n. s.) 1211, 140 S. W. 1026, the court made reference to the Halle Case, and, while disapproving it in part, did not criticise that portion to which we have made reference. The court then said: “It will be observed that in this case it was agreed by and between Halle and the agent of the company having authority to speak for it, and to vary the terms of the application, that Halle stood insured from the date of the receipt, and from the language of the opinion it cannot be doubted that this parol contract between Halle and the agent was in itself sufficient to authorize the court in holding that Halle was insured from the date of his application.” The same case is cited in 1 Cooley’s Briefs on the Law of Insurance, page 845, as sustaining the statement in the text that “An agreement between the applicant and the agent that the insurance shall
According to the allegations of the complaint in this case
We hold that under these allegations the general agent, Guteh, was clothed, prima facie, with the ostensible authority to, and did, waive the conditions of the receipt issued to May-field, .and that his agreement that the insurance should be in force from the date of its issuance was binding upon the company (sec. 7947, Eev. Codes 1921), and therefore that the complaint states a cause of action.
For the reasons above indicated, we recommend that the judgment be reversed and the cause remanded to the district court, with directions to overrule the demurrer.
Per Curiam: For the reasons given in the foregoing opinion, the judgment is reversed and the cause remanded to the district court, with directions to overrule the demurrer.
Reversed.