Miller v. Brooklyn Life Ins.

17 F. Cas. 312 | U.S. Circuit Court for the District of Maryland | 1868

GILES, District Judge,

after taking time to consider, announced the decision, and, taking up the plaintiff’s position, in reversed order, ruled that the company was not es-topped from denying the payment of the premium by the recital in the policy, and that, though that point was upheld by the authority of Parsons, in his late work on Marine Insurance, the court could not accede to that doctrine, unless in a case where the interests of innocent third parties, who have purchased upon the faith of such a recital, have intervened, Which had not happened in this case.

With regard to plaintiff’s second point, the court held that there was nothing to show actual payment to the agents, nor any transaction tantamount to a payment. There was, it is true, an order on a party, in St. Louis for the money, but there is no evidence of the agents having received that as a payment, nor of their having charged themselves with the money in the account rendered the company on the 1st of August.

With regard to the plaintiff’s first position THE COURT held that there was a waiver of the cash payment by the general agents, which bound the company. THE COURT said that the fact that the payment of the cash premium was waived, and the policy delivered and considered as binding, was evident throughout the whole correspondence. In the agents’ first letter they say, “We give you your policy,” and they inclose the notes for the balance of the premium, prescribing how they shall be filled out and sent, and as to the cash, say it will be called for at the proper time. This was a clear and unquestionable act of waiver. They make no demand upon Scott until the 22d July, and, upon his refusal to pay, write their second letter to Miller, in which they say, “We now depend upon you for it (the cash), to which you must add interest,” etc. This letter clearly treated the policy as existing. The third letter does not vary the position; in it they say, "Now, sir, we are fearful you will lose your policy, if payment is not made soon.” ■ Now, a man cannot lose what he has never had. Throughout the whole transaction — -the giving credit, the taking of a third party for payment, and the coming back upon Miller upon the third party’s refusal to pay — there has been a clear waiver of the cash payment, and a delivery and treatment of the policy as a valid executed contract, recognized alike by the agents in St. Louis and the principal in Maryland. From the 2d of July up to the death of Miller, the company could have sued him for the unpaid premium.

THE COURT

further held that the general agents had power to waive the payment of tlie first cash premium. The marginal notice referred to the provisos contained in the policy, and the proviso relied upon referred, not to the first premium, for that was recited in the policy itself as paid, but to the future premiums only, and a failure to pay upon the days therein named. There was no' provision in the policy that it shall not become binding until the first premium is paid, and consequently there was no violation of any provision of the policy by the agents when they delivered it as binding before the premium was paid. The memorandum at the foot of the due bill was a mere direction to the agent, and nothing more. The private instructions of the company to its general agents had never been brought to the knowledge of the assured, .and had, therefore, nothing to do with this case. It seemed to THE COURT, however, that those very instructions contemplated that a policy might be delivered by the agents without payment of the premium. This is shown by the rule that premiums not paid in such cases will be charged to the agents personally. It appearing, then, that the cash payment was waived by the agent, and that the waiver was within the general scope of the business of the general agents of the company, and the assured not being bound by the secret instructions issued by the company to their ágents, THE COURT will enter judgment for the plaintiff for the amount of the policy, less the amount due for premiums, etc. Exceptions reserved by defence, Judgment entered for $5,013.25 and costs.

[This case was taken, on writ of error, to the supreme court, and the judgment of the circuit court was affirmed. 12 Wall. (79 U. S.) 285.]