2 Mo. App. 339 | Mo. Ct. App. | 1876
delivered the opinion of the court.
Plaintiff sued upon a policy of insurance issued by defendant, upon the life of her husband, Louis Schmidt,, since deceased, for the sum of $1,000, and obtained judgment in the Circuit Court, from which defendant appealed. The policy contained a stipulation declaring that, “in case the said Louis Schmidt shall, without the consent of this-company previously obtained in writing, pass beyond the settled limits of the United States, * * * or shall, without such previous consent, visit those parts of the United States which lie south of the thirty-sixth degree of north latitude, between the 1st day of June and the 1st day of .November, * * * then this policy shall be-void, null, and. of no effect.” The policy was dated June-10, 1864, and the premiums were to be paid annually from that date, or quarterly on the 10th days of September,, December, March, and June.
It appeared, from the testimony, that, on September 5,. 1871, Schmidt obtained from Godfrey & Brother, the St., Louis agents of defendant, a written permit to visit and! reside in Shreveport, Louisiana, which is situated south of the -thirty-sixth parallel, for the term of sixty days thereafter; that he thereupon took up his permanent abode- in Shreveport, and died there, of yellow fever, on September 18, 1873. No written consent, other than that already mentioned, was ever given by defendant, or its-agents, for Schmidt’s residence in territory requiring such consent by the terms of the policy. The defendant resisted plaintiff’s- demand on account of the alleged forfeiture thus -created.
Instructions — which need not to be here set out at. length — were given or refused, by the Circuit Court, to the effect that the conduct of the agents, as above stated, if proved to the satisfaction of the jury, established a waiver, by •defendant, of the condition requiring a written consent to Schmidt’s continued change of residence. This proposition, presents the ground upon which defendant here demands a reversal of the judgment.
The doctrine that either party to a written contract may waive, by parol, any of its conditions in his favor, is too well .settled to need extended elucidation. In Williams v. The Bank of the United States, 2 Pet. 102, it is announced thus : ,<£If a party to a contract, who is entitled to the benefit of a condition upon the performance of which his responsibility is to arise, dispenses with, or, by any act of his own, prevents the performance, the opposite party is excused from proving a strict compliance with the condition.” That such a dispensation or waiver may be effected .by parol, and yet •constitute no violation of the rule which excludes parol testimony to vary the terms of a written contract» is also established by the highest authority. 1 Greenl, on Ev., secs. 302, 304. Because the condition, in the case before us, requires that the consent be written, it does not follow that "the waiver must also be in writing. The stipulation for the written form of consent is in itself a condition, and may, in like manner, be dispensed with by the.party entitled to demand it. It remains to be inquired what acts, if any,
It is argued for defendant that, inasmuch as Schmidt’s-residence in Shreveport was an increase of the risk, the payment of an additional consideration, in the way of extra, premium, was necessary to entitle the plaintiff to the benefit of the policy. We cfinnot see the force of this suggestion. The defendant might well have required extra compensation for its written consent to the change of residence, if demanded. But, as a waiver implies merely a voluntary / adherence to what remains of the original contract, no con-/ sideration is necessary to support it. ;
It is further urged that a waiver by the St. Louis agents, whose authority was limited to the soliciting of applications; for insurance and the collection of premiums, could not be-Finding for any purpose on the defendant.
In Wing v. Harvey, 2 Big. Life Ins. Cas. 365, the life policy was subject to a condition making it void if the assured went beyond the limits of Europe, without license. The local agents, through whom the insurance had been effected, were informed that the assured resided, without license, in Canada, and they yet continued to receive the premiums. It was held that this precluded the company from insisting on the forfeiture. Said Lord Justice Turner : ‘ ‘ The office undoubtedly received the money from their agents, to whom it had been paid upon express terms and conditions, and, the office having held out Mr. Lockwood and Mr. Thompson to the world as their agents for the purpose of receiving the premiums, I think it became the duty of Mr. Lockwood and Mr. Thompson, and not that of the plaintiff, to communicate to the head office at Norwich the •circumstances under which these premiums had been paid to and received by them, and the representations which were made on the occasions of such payments and receipts. Upon these grounds my opinion is that these policies must
In Buckbee v. United States Insurance and Trust Company, 18 Barb. 541, it was held that the renewal of a life policy (which had expired by non-payment of premium) in favor of one who at the time was sick, and so known to the officer renewing the policy, was a waiver of conditions against ill-health of the assured, which otherwise would have avoided the policy.
In Peoria Fire and Marine Insurance Company v. Hall, 12 Mich. 213, a suit on a fire policy, the knowledge of the agent, when the policy was issued, that gunpowder was kept on the premises insured, was held to be a waiver of a condition prohibiting the keeping of it without written permission. In the case of Viele v. Germania Insurance Company, 26 Iowa, 9, the principles here involved are ably and exhaustively discussed in their application to both fire and life policies. It is there held tliat-££ any acts, declarations, or course of dealing by the insurer, with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force, and leading the assured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by reason of such breach, and estop the company from setting up the same as a defense, when sued for a subsequent loss.” It is further held that such a waiver need not be in writing, and need not bo founded on any new consideration. As to the power of a local agent of a foreign insurance company, clothed with the customary authority given to such agents, touching policies issued at their agencies, it is held that he has power to dispense with conditions and waive forfeitures arising from a breach thereof, in the absence of any limitation upon his authority known to the assured; that such powers are ££necessary incidents of the general authority of the agent to effect contracts of insurance, conduct the business at his agency, and do all things necessary and proper in the prosecution.
We conclude, after careful examination, that the weight of ■authority, English and American, is largely on the side of the opinion just referred to. We therefore do not find any •error in the rulings of the Circuit Court in the present case: The judgment, then, must be affirmed;