New York Life Insurance v. O'Dom, 56 So. 379

McLean, J.,

delivered the opinion of the court.

■ This is a suit on a policy of insurance, issued by the appellant on the 26th day of January, 1909, insuring the life of appellee’s husband, John W. O’Dom, in the sum of five thousand dollars. John W. O’Dom died on the 20th day of February, 1910, and, payment having been refused by the insurance company, this suit was brought upon this policy. This policy is what is known as a “term policy.” It was to run for ten years, provided, of course, the annual premiums were promptly paid. At the end of ten years it was to expire by virtue of its own limitation. The annual premiums amounted to one hundred and seventy dollars and eighty-five cents, and were to be paid on or before the 18th day of January of each year. It was provided, however, in the policy, as follows: “A grace of one month, subject to an interest charge of five per cent per annum, shall be granted for the payment of every premium after the first, during which time the insurance shall continue in force.” By the terms of the policy all premiums became payable in advance at the home office, or to an agent of the company upon the delivery, on or before the due date of the premium, of a receipt, signed by an executive officer of the company and countersigned by such agent. The policy further provides that, “except as to the period of grace herein provided, the payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable,” and, further, that “no agent is authorized to waive forfeitures, or to make, modify, or discharge contracts, or to extend the time for paying a pre.mium.” The second full premium of one hundred and seventy dollars and eighty-five cents became due January 18, 1910, as called for by the policy. On December 28, 1909, the company gave written notice to the insured, which was received by him, and in this notice the attention of the insured was called to the due date of the premium,' and he was notified that the amount would have to be paid, as fixed by the policy, at the home office of the company in New York, or to the cashier of the Jackson branch office, “in exchange for the company’s official receipt, signed by an executive officer and countersigned by an agent to whom the premium was to be paid,” and further, that, “unless paid in the manner directed, the policy would become forfeited. ’ ’ The insured was further informed by the company that ‘ ‘ only the president, a vice-president, a second vice-president, a secretary, or the treasurer has power, on behalf of the company, to make or modify any contract of insurance, or to extend the time for paying the premium, or to waive any forfeiture, or to bind the company by making any promise, or by making or receiving any representation or information.” It was further shown that on January 23,1910, the insured was further notified by the company of his failure to pay his premium on the 18th of January, and again had notice that the policy required payment of the full premium and of the interest thereon from its due date, on or before February 18, 1910, and was again informed that the company could not waive any of the conditions of the policy contract. Again, on February 3, 1910, the company directed, by mail, the attention of the insured to the fact that the said premium had not been paid, and that the period within which it could be received, with interest, would end February 18, 1910; and, further, that none of the terms of the policy could be waived, and still again, on February 13, 1910, another notice, which was the fourth notice, was mailed to the insured, again stating that February 18th was the last day of grace, and, further, that none of the terms of the policy could be waived. All of these notices were promptly received by the insured, and the premium was not paid, and the insured, John W. O’Dom, died on February 20, 1910. Upon the establishment of these facts the insurance company contended on the trial, and still insists, that the warranties of the policy were broken by the insured, and that under the terms of the contract the insurance was not in force at the death of the insured, and, consequently, it, the defendant, was not liable.

The contention of the plaintiff is that the insurance company waived the requirements of the contract, which called for the full annual premium on or before the 18th day of February, 1910, and, further, that the defendant agreed with the insured that it would accept a quarterly premium on the 21st of February, or the 18th of February, in lieu of the whole amount within the time called for by the policy. At the same time, when this policy was issued, there was also issued to M. A. O’Dom, the son of John W. O ’Dom, another insurance policy of similar tenor, the annual premium for which was the total of the two premiums, with interest, being two hundred and sixty-four dollars and forty cents, - one-fourth of which would be sixty-six dollars and ten cents. In order to support the contention of the plaintiff in the court below, Mr. M.'A. O’Dom testified that he represented his father; that he went to Meridian on the 17th day of February, 1910, just a day before the thirty days of grace expired, to try to dispose of some lumber in order to pay the premiums. Tie failed to dispose of the lumber, but he met one Col. Townsend, who was a mere soliciting agent of the company and he (Townsend) suggested that the witness write to the Jackson branch office relative to an extension of the premiums. Thereupon this witness, M. A. O’Dom, wrote a letter, dated February 17, 1910, addressed to M. V. Flood, manager of the Jackson branch of the company, as follows: “Dear Sir: Please notice that the premium on my policy No. 4117962, and my father’s, J. W. O’Dom, policy No. 4117961, is due tomorrow, February 18th. Kindly hold receipt for the two premiums for ten or fifteen days, as we are not in position to remit you to-day and don’t want the policies to lapse. You will greatly oblig’e us by granting this extension of ten or fifteen days from tomorrow, the 18th instant, and we will appreciate an advice to this effect. Thanking you in advance for an early reply, etc., M. A. 0 ’Dom. ” M. A. 0 ’Dom further testified: ' That it was his intention to convert some lumber that he had into money, if his request in said letter was denied, and forward said premiums on the next day, February 18th. That in response to said letter to Mr. Flood, A. C. Wilson, cashier of the Jackson branch of appellant’s business at Jackson, called said witness over the long-distance telephone, said witness being at the time at West King Junction, in Wayne county, some six miles from the railroad. Mr. Wilson, the cashier of the branch office at Jackson, on February 18th, told the witness that it would he impossible for him to hold receipts for ten or fifteen days, as was requested by him in his letter, hut if he, the witness, was not in position to send the whole premium on the two policies, to send him a check for the quarterly premium, and gave the witness the amount of sixty-six dollars and ten cents, which sixty-six dollars and ten cents would cover the amount as charged under the provisions of the policy during the grace of one month. The witness replied to Wilson, the cashier, saying that he was in the woods at West King Junction, hut would go to Waynesboro, his home, the next day or two, and asked him how it would do if the witness would send check on the 20th and date the check as of the 18th, and date the letter inclosing said check on the same day. The cashier, Wilson, said it would be all right, and he, the witness, said he would have the check at the branch office of the company at Jackson by the 21st day of February, 1910. Having thus been assured by the cashier, Mr. M. A. O’Dom, acting for himself and his father, went to Waynesboro, his home, on the 20th day of February, and sent in the next mail, and on February 20th, a check, which was drawn by the Wetherbee-IIuggins Company on the First National Bank of Meridian, Mississippi for sixty-six dollars and ten cents, dated February 18, 1910, payable to the order of M. A. O’Dom, and by said payee indorsed to the order of the New York Life Insurance Company. This check was received by the said Wilson at Jackson, Mississippi, on the 21st day of February. Mr. Wilson’s version of this conversation over the phone differs from Mr. O’Dorn’s, in that he denies that he stated to Mr. O’Dom that he could date the check back. He says that he told Mr. O ’Dom that it must be mailed by the 18th of February, and, further, that he, Wilson, would send some additional papers to Mr. O’Dom for his signature, changing the payment of premiums from annually to quarterly. Mr. Wilson admits that these papers were never sent to be signed, while Mr. O’Dom denies that there was ever anything said about Mr. Wilson sending him any papers to be signed.

In view of the fact that this case was submitted to a jury, and that the findings of the jury were against the insurance company, we are bound to consider this case as if the testimony of Mr. O’Dom were true. The evidence of Mr. O’Dom further shows that the assured, John W. O’Dom, was sick on Sunday, the 20th day of February, and had been sick for a week or more; that there was no apprehension on the part of any member of his family that he was seriously sick; that the assured died on Sunday night, February 2t0h, at 8:30 o’clock.After the death of the assured the testimony shows that the soliciting agent of the company, Mr. Townsend, applied to the Jackson branch office, at Jackson, for blank proofs of death, and that Wilson, the cashier, forwarded the said Townsend blank proofs; the said Wilson having sent the check to the home office at New York. After the death of the assured, Mr. M. A. O’Dom went to Jackson and there saw Mr. Wilson, the cashier, who referred to the conversation with the witness, O ’Dom, and stated to him that under the peculiar circumstances of the case he had forwarded the check to the home office at New York for action by the company. After this Mr. O’Dom, representing the appellee, gave notice to the home office of the death of the assured, requesting blank proofs of death to be forwarded to him. The home office of the .company, in answer to Mr. 0’Dorn’s application for blank proofs of death, declined to furnish the blank proofs, assigning as a reason that the provisions of the policy had been violated, because the premiums were not received on or before the 18th day of February, 1910, nor until after the said policy had lapsed because of nonpayment of the premiums, because the check was not for the sum' called for as the premiums on said policies, and that each of said policies — that is, the one in favor of the witness, M. A. O’Dom, and that one in favor of his father, John W. O’Dom — had both lapsed for the nonpayment of the January 18th premiums. Said letter was-dated February 26, 1910. It was also stated in said letter that the Jackson branch was not authorized to receive the premiums called for, if not paid on or before the 18th day of February, and that the said office was not authorized to receive any sum whatever after the 18th day of February; also called attention of the witness O’Dom to that provision in the policy, as follows: “No agent is authorized to waive forfeitures, or make, modify, or discharge contracts, or extend the time of paying the premium. ’ ’ Said letter was signed by the vice-president of the appellant, and returned the check of sixty-six dollars and ten cents, which the vice-president in said letter advised had been sent by the Jackson branch to his (or the home) office.

Mr.-Wilson, the cashier of the company testified upon cross-examination that he was under bond to the New York Life Insurance Company' as cashier at the branch office at Jackson; this bond was filed with the company at its home office; the said home office employed him, appointed him to the position of cashier, and gave him written instructions; that these written instructions were at the Jackson office and were not produced at the trial. The witness Wilson also testified that there was an assistant cashier in the office, who worked under Ms supervision ; that he also had two book-keepers, and he had charge of the bookkeepers; he also had two stenographers under his supervision, and that the said Wilson had charge of the entire office force, all of whom were employed by the New York Life Insurance Company, but said force was under his (Wilson’s) supervision and his direction, and that he was the only cashier in the state of Mississippi — that is, the only one having an office in the state; that there was also a branch office at Memphis, Tenn., and one at New Orleans, La.; that the Jackson branch office included, and had jurisdiction over, all the counties in Mississippi, except seventeen counties in the northern part of the state, which were under the supervision of the Memphis branch office, and four counties on the coast, under the supervision of the New Orleans branch office; that he (Wilson) was authorized to receive premiums; that he was authorized to make collection of premiums and delivery of receipts to the policy holders within counties of the Jackson branch district; that the receipts for the collection of premiums were sent to the Jackson branch office, to be countersigned by him as cashier, before the same could be delivered to the policy holders; that all of said receipts for premiums had to be countersigned by him, unless he authorized some clerk in the office to sign Ms name to said receipts; that the notices relative to the payment of premiums were mailed from the Jackson branch office. The witness Wilson further stated that Mr. Flood had nothing to do with the collection of premiums, that his duties were entirely distinct from that of the witness; that the letter written February 17th, by Mr. O’Dom to Mr. Flood, was received and turned over by Mr. Flood, for the reason that Mr. Flood had nothing to do with that matter, and because he had full jurisdiction of that matter; and that in undertaking to answer the letter he called Mr. O’Dom over the long-distance phone and had a conversation about the matter. The witness Wilson stated, further, that he hád never sent any papers to Mr. O’Dom to change from an annual to a quarterly premium, either on his policy or that of his father. This witness also stated that another part of his duties was to receive the original policies from the company, have a record made of them, and then send them to the soliciting agent, to be delivered by the soliciting agent to the policy holder; that the policy in suit has upon it the words “Jackson Br.” stamped on the back of the policy; that it was put there in typewriting by the home office, and that it was on there when the policy was received at Jackson; and that the letters “Br.” after the word “Jackson,” written on the policy, stand for “Branch.’ Another duty of said Wilson, cashier, was to keep up with the policy holders, to send them notices not to let their policies lapse, and that he sent the notices to Mr. J. W. O’Dom of date January 23, 1910, February 3, and February 13, 1910. These notices are the regular stock form, furnished him by the home office for use in the Jackson, Mississippi, branch office; that he (Wilson) is the person designated by the insurance company to send said notices, and that he is the person referred to as cashier; and that the witness Wilson is the agent that is designated to countersign the receipts in this case, and the only agent for all the counties in the jurisdiction of the Jackson branch office, and countersigned said receipts.

We have thus in extenso set out the testimony showing the powers and duties of the Jackson branch office, and in so doing we have accepted the statement of facts as we find them in the brief of counsel for appellee, as the counsel for appellee has fully stated the facts as shown by the record, and left out of the statement nothing that is of material benefit to his client.

It will thus be seen from this statement of facts that the only question which is presented in this record is whether Wilson, the cashier, had any power or authority to waive a forfeiture, and whether the insured was misled by Wilson, and, if so, was the company in any way estopped by the acts or declarations of Wilson, the cashier. The contention of appellee is that the stipulation in the policy, “No agent is authorized to waive forfeitures, or to make, modify, or discharge contracts, or extend the time of paying the premium,” is void, and Wilson, the cashier of the company, had such powers and duties as authorized Mm to waive the forfeitures; in other words, that Wilson was the alter ego of the company.

The fallacy lurking beneath the position of appellee is as dangerous and deceptive as it is open and glaring. It consists in assuming that the cashier of the Jackson branch was a general agent of the company; that, because he had the power, to collect premiums, he also had the power to extend the time of payment; and that he could waive the forfeiture and modify or change the .contract of insurance. There is no provision in the policy which gives the insured the right to change the premium from annual to quarterly. We have made a very careful and exhaustive investigation of this question, have not only read all of thé authorities relied upon by the appellee, hut others, and fail to find any authority which sustains her contention.

Appellee invokes the settled doctrine in this and other courts: First, that “ an agency for a corporation may be proved, and authority to act for it may be implied, as in the case of natural persons,” and, second, that “there can be no more force in an agreement in writing not to agree by parol than in a parol agreement not to agree in writing, and that every such agreement is ended by the new one which contradicts it.” Both of these propositions are well settled in an unbroken line of authorities in this state, beginning with Insurance Company v. Sheffy, 71 Miss. 919, 16 South. 307, and extending to L. G. Accident Co. v. M. C. R. R. Co., 52 South. 789, decided as late as 1910, and these enunciations are in perfect harmony and accord with all of the recent and well-considered cases of other courts. It is also equally well settled that a corporation, through its duly authorized agent, acting within the real or apparent scope of his authority may be bound, and, that the agent may waive forfeitures and estop the corporation, so as to prevent the principal from setting up a defense which would operate as a fraud upon the other contracting parties. Indeed, such is elementary. It rests, and is bottomed upon, the principle that the agent is the alter ego, and what the principle himself can do he can do through another. But the question presented in the case at bar goes directly to the authority of the agent — that is, was he acting within the real or apparent scope of his power, so as to bind his principal; and, second, can the appellee claim, under the facts of this case, that the acts of the agent estopped the insurance company and precludes it from repudiating those acts? In order to determine this question, we must look, first, to the power and authority conferred upon the agent, and his conduct, and also what right the appellee had to rely upon this conduct.

It is urged with learning and ability, both in the oral argument and written brief of appellee, that these facts shown in evidence establish the power of the agent, and that the appellee had the right to rely upon the statement and the conduct of the agent, and that to now hold otherwise would be a fraud upon appellee. The evidence shows that one Flood was the agent of the insurance company (as to what were his duties, and what were his powers, the record is silent); that on February 17th M. A. O’Dom, on behalf of himself and his father, mailed a letter, addressed to Flood, in which he stated that the premiums were due on the following day, and requesting an extension for ten or fifteen days. On the following day Wilson, the cashier of the appellant, called him (O’Dom) over the long-distance phone, and the conversation was had as detailed in the first part of this opinion. The evidence further shows that Wilson had authority to collect the premium and to deliver the official receipts for premiums, that in the Jackson branch office all of the policies issned by the appellant, to persons living within certain territory, were registered, and that all the premiums upon those policies could be paid to Wilson, and that the official receipts for these premiums were forwarded by the company to Wilson. There is no evidence at all which either directly or indirectly, remotely or otherwise, shows that either Wilson, or any other person connected with the Jackson office; has any authority to issue policies of insurance, or to make any contract of insurance, or to extend the time of payment of any premium, or to change or to modify any contract, or that any custom or course of dealing had existed in any way conferring any such power upon him or any other person connected with the Jackson branch, unless such power can be inferred from the evidence above stated.

The burden of proof is upon him who asserts it to show either a direct authorization of the agent, or by proving such facts or circumstances, or such a course of conduct, as by implication it can be presumed that the agent was acting within the real or apparent scope of his authority. If one invests another with real authority, he is bound by reason of tbe actual power conferred. If,, however, he clothes him with apparent authority, he is bound, because he has induced others to deal with him as an agent. The one rests upon a fact; the other upon a supposed fact. But before the alleged principal is precluded from denying the existence of the supposed fact, it is necessary that the other party should show that he was misled, not by the alleged agent, but by the principal. An analytical examination of the adjudged cases, will show that such is the predicate upon which such conclusions are drawn. Another principle is that, although one person has apparent, as contradistinguished from real, authority to act for another, yet if third persons dealing with an agent know, or in contemplation of law are charged with knowledge, that such person was not authorized to do or to perform the particular act, then such third persons cannot be heard to say that such agent was acting within the scope of his authority.

An examination of the authorities, in the light of the above principles, will doubtless reconcile the seemingly conflicting conclusions of the various courts. The Mississippi cases relied upon by appellee are: Rivara’s case, 62 Miss. 728; Bowdre’s case, 67 Miss. 620, 7 South. 596, 19 Am. St. Rep. 326; Sheffy’s case, 71 Miss. 919, 16 South. 307; Gibson’s case, 72 Miss. 58, 17 South. 13. An examination of these cases will disclose that in each and all of them the question as to the authority of the agent arose upon the policies of insurance, the essential parts of which were agreed upon by the agent, who had full power to issue policies and to conclude contracts, without having to refer them to their principles. An agent who is empowered to issue policies and to make contracts of insurance is the general agent of the company, and, being a general agent, can waive conditions and forfeitures, and do any other thing which his principal can do. The cases outside of this state relied upon by appellee are cases easily distinguishable from the case at bar. Most of them are cases where the agent was the general agent of the company, or where, by the conduct of the parties and the custom and the course of business, the insured had the right to rely upon the acts and statements of the agent, and the conclusions in some instances are based upon the statute, which makes the party receiving or collecting premiums the general agent of the company.

After a thorough examination of the authorities, we have been unable to find any case, except the James case, 148 Mo. 1, 49 S. W. 978, and the Fallows case, 110 Tenn. 720, 77 S. W. 937, which holds that an agent, having simply the authority to collect premiums, had the power to waive forfeitures, where the policy, as in this case,, provides that “no agent is authorized to waive forfeitures, or to make, modify, or discharge contracts, or to extend the time for paying a premium.” But even in the James case and Falloivs case, supra, it will be seen that in both of these cases the course of business and the custom had been such as to justify the parties in believing that the agent had the authority to extend the time of payment. Such had been done before and the acts of the agent ratified by the company. But if we be mistaken as to the ruling in Fallows’ case, 110 Tenn. 720, 77 S. W. 937, this case is squarely overruled in Archer v. N. Y. L. Ins. Co., MS. opinion, delivered November, 1910, assenting to Crook v. Insurance Co., 112 Md. 268, 75 Atl. 388. In all the cases relied upon by appellee there can be found general expressions which will justify the conclusions that an agent, authorized to receive and receipt for premiums, is such an agent as clothes him with power to extend the time of payment; but this general language must be construed and interpreted by referring to the facts as shown in each particular case. The difficulty is not so much in making general statements of the law, but applying them to a certain state of facts, and the power of agents to bind their principals is varied by the character of the functions which they are employed to perform.

Turning, now, from the authorities relied upon by'appellee, we find that the best-considered and the decided weight of authority is that a mere collecting agent has no power to vary, alter, or modify a contract of insurance, or to extend the time’ of payment, especially where the notice of the agent’s authority is brought home to the other party. This court, in Insurance Co. v. Sorsby. 60 Miss. 14, has squarely decided the proposition. In that case the policy prescribed that if any other insurance was taken upon the property, without the consent of the insurance company, the policy would be void. After the issuance of the policy, additional insurance was taken out by the insured upon the property. (This was a fire policy.) The insured claimed that the conditions of the policy were waived by Bracy, the agent of the company. Bracy was a soliciting agent. He forwarded the applications to the general manager. The policy was returned to Bracy, who delivered the same to the insured and collected and receipted for the premiums. The proof was that the insured, when he applied to Bracy, informed Mm that he intended to take out addition insurance, and that after he had taken out the additional insurance he informed Bracy, the agent, and that Bracy said that it was all right. This court, speaking through its then distinguished Chief Justice Campbell, ■said: “It whs not within his real or apparent authority to make contracts with the company. He was not authorized to issue policies, or alter the terms of those issued by the company. His information of Sorsby’s purpose to obtain other insurance was not imputable to the company, and his express consent to it did not in any way affect the company.”

The recent case of Crook v. New York Life Insurance Co., 112 Md. 268, 75 Atl. 388, is a case on all fours with the case at bar. The policy in that case contained the identical provisions that the policy under consideration contains, and the local agency had the identical power and authority which Wilson, in this case had. In that case it was held that the cashier of the local agency of the life insurance company, whose home office is in another state, has no power to bind the company by waiving the nonpayment of premium when due, if the policy provides that the waiver can be made only by certain designated officers, and, further, that the acceptance by the local agent of an overdue premium does not operate to waive a forfeiture of the policy on account of nonpáyment when due, unless the company knew, or could have known, what he had done, and adopted or ratified his act, or by its conduct estopped itself to insist upon forfeiture. In Cooley’s Briefs on the Law of Insurance, vol. 3, p. 2486, it is stated that “an insurance agent, who is only authorized to collect and forward premiums, does not have the power to waive conditions in the policy or forfeitures arising out of breaches thereof.” In Cyc. 860, we find a correct statement of the law on this subject, as follows: “A waiver by an officer or a general agent is binding on the company, but ordinarily a mere soliciting agent or collecting agent does not have the authority to waive conditions of the policy. The agent intrusted with the making of the contract may waive conditions affecting its validity and also for forfeiture of the policies.”

An examination of the authorities cited by this author bears out the correctness of the statement. In Iowa Life Insurance Co. v. Lewis, 187 U. S. 335, 23 Sup. Ct. 126, 47 L. Ed. 204, et seq., it is held that “the authority of the agent of an insurance company to waive a forfeiture, which had accrued by reason of nonpayment of a premium note at maturity, cannot be inferred from an act of the company in sending such note to the agent for collecting the same some time before it was due, especially where his contract with the company and provisions of the policy prohibited the exercise of such authority.” The representations, declarations, or acts of an agent, contrary to the terms of the policy will not be sufficient, • unless sanctioned by the company. Phoenix Mutual Insurance Co. v. Doster. 106 U. S. 33, 1 Sup. Ct. 18, 27 L. Ed. 65. There is nothing in this record which in any way shows a .ratification by the company, or that the course of business, or any custom upon the part of the agent, known to the company, had previously existed. It is needless to pursue this investigation along this line any further, as the decided weight of authority is that an agent, with limited powers like Wilson, had no authority to extend the time of payment:

The appellee relies upon London Guarantee & Accident Co. v. Mississippi Central R. R. Co., decided by this court June, 1910, and reported in 52 South. 787 et seep, for authority sustaining appellee’s position, with the provision in the policy to the effect that “no agent, etc., •can waive a forfeiture or extend the time of payment.” The provision in the Accident Company’s case, which this court held unavailing, was a very different one from the provision in this policy. The stipulation in the one •case was that “no officer, no agent, and no other representative shall waive,” etc. This stipulation brought forth from the court the expression that “this clause is a species of refinement, by which the corporation withdraws within its invisible and intangible ideality, Avhen liability is sought to be imposed upon it, bound by the acts of no agent, officer, or other representative,” and for that reason held that the stipulation was too broad •and comprehensive in its terms, and at the same time referring to the distinction which was the foundation of Cleaver’s case in 65 Mich. 527, 32 N. W. 660, 8 Am. St. Rep. 908, as contradistinguished from the case of Insurance Co. v. Earle, 33 Mich. 143. This court in the Accident Co. case, supra, expressly approved the decision in ■Cleaver’s case.

We affirm -with, emphasis all that was said in L. G. Accident Co. v. M. C. R. R. Co., supra, and at the same time hold that the stipulation in the policy in the instant, ease is reasonable and valid. The distinction between the two provisions is a broad as the bounding seas. The one attempts to prohibit the waiver or modification of any of the provisions of the policy by any one in either earth or sky or sea, The broad and sweeping provision nullifies itself. The other limits the power to the executive officers, or the general agents of the company. Such a provision is eminently wise and salutary on the part of the company, so as to protect itself from the improvident, unwarranted, or fraudulent statements and conduct of agents who possess mere clerical power, and who perform duties that are purely perfunctory, and at the same time safeguards and protects the rights of the insured, in that it gives him notice what officers and agents of the company he can safely deal with in the event he should desire a modification or alteration of the contract,, or any extension of the time as to the payment of premiums.

We see no reason why a corporation, which necessarily contracts through agents, but may have agents of superior or inferior authority, should not stipulate, in any contract executed in its behalf, that its provisions can be varied by no notice or representations not brought, home to the actual knowledge of one of its principal officers, nor any waiver not authorized by them. The stipulation in the policy that “no agent has power to modify the terms of the contract, or waive its conditions, is notice to the insured of the limited authority in these respects, and under such a stipulation the insured cannot rely upon any actual conduct of the agent as constituting a modification or waiver.” Such is the statement of the rules as laid down in 25 Cyc. 861, and such is the generally accepted rule, especially in Connecticut, Maryland, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, Washington, and the United States Supreme Court. As a general proposition it may be said that limitations on the powers of agents, with respect to waivers, are valid and binding on the insured, if he has knowledge thereof. That the insured in this case had knowledge of these limitations cannot be questioned, for the reason that the policy itself specifically provides that “no agent is authorized to waive forfeitures, etc., or to extend the time of payment.” And in addition to this provision in the policy, the several notices given to the insured in this case, four in number, admonished and advised the insured that “only the president, a'vice-president, a second vice-president, a secretary, or treasurer has power, on behalf of the company, to make or modify any contract of insurance or to extend the time for the paying a premium, or to waive any .•forfeiture, or to bind the company by making any promise, or by making or receiving any representation or information.” The unbroken line of authorities is to the effect that a provision like this in the policy is notice to the insured, and that he is bound by it. Insurance Co. v. Sorsby, 60 Miss. 303; Cleaver v. Traders’ Insurance Co., 65 Mich. 527, 32 N. W. 660, 8 Am. St. Rep. 908; Crook v. New York Life Insurance Co., 112 Md. 268, 75 Atl. 388; Cooley’s Briefs on the Law of Insurance, vol. 3, p. 2509; Westerfeld v. New York Life Insurance Co., 129 Cal. 68, 58 Pac. 92, 61 Pac. 667; Porter v. Friendly Society, 114 Ga. 937, 41 S. E. 45; Dimick v. Metropolitan Life Insurance Co., 69 N. J. Law, 384, 55 Atl. 291, 62 L. R. A. 774; Ruggles v. Am. Cent. Ins. Co., 114 N. Y. 415, 21 N. E. 1000, 11 Am. St. Rep. 674; New York Life Ins. Co. v. Fletcher, 117 U. S. 531, 6 Sup. Ct. 837, 29 L. Ed. 934; Ins Co. v. Gibbons, 43 Kan. 15, 22 Pac. 1010, 19 Am. St. Rep. 122, et ubique.

If, therefore, the insured had notice that only the general agents or officers of the company had power to grant the extension of time, how can he be heard to say that lie was misled or prejudiced by dealing with Wilson, whose duties are merely clerical, and limited, administrative, and not executive? It was his duty to ascertain the authority of the person with whom he was negotiating, or else take his chances on a ratification by the company. Insurance companies must have some efficient means of enforcing punctuality in the payment of premiums. Their contracts may provide for the forfeiture of a policy upon the default of the prompt payment of the premium. If they are not allowed' to enforce this forfeiture, they are deprived of a means which they have reserved by the contract of compelling the parties insured to meet their engagements. The provision for the release of the company from liability on the policy of the Insured, to pay the premium when due, is of the very ■essence and substance of the contract of life insurance. To hold the company to its promise to pay the insurance, notwithstanding the default of the insured in the making-punctual payment of the premiums, is to destroy the very contract of life insurance itself. Our sympathy with the appellee cannot change our conception of the right. The law in its stately steppings, and'in its onward march for the establishment, enforcement, and maintenance of justice, cannot be swerved from the path of duty by the hardships of individual cases. It is only by a rigid adherence to the rules of law that we find •safety to life, liberty, or property. The weak and the poor are more interested in its enforcement than are the strong and the wealthy. The latter can generally protect themselves; and it is just as essential now that the law should be obeyed as in the days of old, when, •amid the thunders and lightnings of Sinai, the tablets of stone, upon which were written the injunctions of the Almighty, were delivered to the children of Israel.

Reversed and remanded.

Case Details

Case Name: New York Life Insurance v. O'Dom

Court Name: Mississippi Supreme Court

Date Published: Oct 15, 1911

Citations: 56 So. 379; 100 Miss. 219

Court Abbreviation: Miss.