25 Wash. 254 | Wash. | 1901
Lead Opinion
The opinion of the court was delivered by
This is an action upon a policy of insurance issued upon the life of Thomas L. Uixon. The testimony most favorable to the contention of the respondent was substantially as follows: In December, 1887, Hixon, the husband of the respondent, made application to the appellant, through its agent, one Walter J. Ball, for a straight life policy. The application was upon a printed form used by the company, and contained, after the usual numerous questions, a certificate, signed by the applicant, reciting that the application should be made a part of the insurance contract applied for, and “that no agent of the
“All premiums are payable at the Home Office in Hartford, Conn., but will be accepted if paid to an agent in exchange for a receipt signed by its president or secretary, and countersigned by the agent designated thereon. This policy shall not take effect unless the first premium is paid while the insured is in good health; and if the second or third annual premium be not fully paid when due, this policy and all claims under it- shall be void and the premiums already paid shall be forfeited to this company.”
The assured elected to pay the premiums quarterly, and did p,ay them down to and including the quarterly payment falling due April 3, 1890. The assured resided from the time of the date of the policy until his death at Tacoma, Washington. This place was also the place of residence of Delprat & Ball, a partnership composed of George B. Delprat and the Walter J. Ball above named. The members of the firm were the resident agents of the company at Tacoma, and its sole representatives at that place. They had power and authority to solicit insurance-for the company, collect premiums upon policies issued, and countersign receipts for premiums collected. Their signature was necessary, according to the recitals on the face of the receipts issued to the assured for the payment of premiums, to the validity of such receipts; and it was shown that the agents had on one or two occasions taken the .assured’s
The motion for nonsuit should have been granted. The rule is fundamental that a principal is bound by the acts of his agent only when the agent acts within the scope of the authority conferred upon him, or where he acts within the apparent scope of his authority and the person dealing with him as such has no knowledge that his authority is less than his principal has made it appear to be. Here it cannot be disputed that the assured had knowledge of the want of authority on the part of the agents with whom he was dealing to extend the time of the payment of the premiums. Hot only was it stated in his contract that they had no such power, but the successive receipts issued to him expressly warned him that no agent had authority to waive or postpone such payments. More than this, these very agents, when the assured had lapsed in a former payment, expressly refused to assume the exercise of the power to waive a forfeiture of the contract, but required him to apply to the company direct for reinstatement. Hnless it is to be held that the company can
The second objection, viz., that there is no provision in the contract declaring a forfeiture for the nonpayment of an installment of a premium, is equally without merit. The assured was given his option either to pay the premiums annually or in quarterly installments. As he chose the latter method, he was bound by it until he gave notice that he desired to pay in the other manner. This method of payment was thus a part of his contract, and a failure to comply therewith constituted a breach.
The judgment is reversed, and the cause remanded with instructions to enter judgment for the appellant.
An nuns., •!. , concurs.
Concurrence Opinion
(concurring). — I concur in the result, for the reason that the record shows that the assured had
Concurrence Opinion
I concur for the reasons stated by Judge Dunbar.