51 W. Va. 38 | W. Va. | 1902
This is a writ of error to a judgment of the circuit court of Wayne County, for the sum of three hundred and fifty dollars in favor of J. E. York, adm’r of Thomas Henry, deceased, against the Railway Officials and Accident Association, a corporation organized and existing under the laws of Indiana. The proceeding was by notice under chapter 58, the notice setting out the policy of the insurance in full. The defendant filed a plea thereto, denying its liability and setting forth as the ground of its non-liability the failure of the intestate to pay the premium on the policy issued to him or any part thereof, and averring that the term of insurance was for one year, the premium, $42.00, payable in five equal installments of $8.40 each payable monthly beginning on the — day of March, 1899, and that in default of payment of any one of said installments the insured forfeited his rights under the policy and the rights of the beneficiary thereunder, unless the policy should be reinstated by tendering payment of the premium in default at the home office, and that the insured, Thomas Henry, did not pay any of the installments at the time specified nor at any time, that the policy thereby became void and was never reinstated by a tender of the payment of the premium or installments or any of them nor by the acceptance of any payments by the company. The
It is not contended that the plaintiff had any right to recover if the premium on the policy of insurance was not paid and the sole question in the case is whether there was sufficient evidence to warrant the jury in finding that the premium was paid. The facts relating to the premium are as follows: Instead of paying the premium or any part thereof at the time the policy was issued the insured gave the insurance company what is termed a paymaster’s order for the entire amount of the premium to be paid in monthly installments of $8.40, out of his wages for the months of February, March, April and May, 1899, respectively, as to the first four installments and as to the fifth it was agreed that if the first, second, third and fourth should be paid when due the fifth installment should- not be collected. The insured was a freight brakeman in the employ of the Norfolk & Western Eailway Company and said order was directed to the paymaster of said railway company., It contained the following clause: “I agree that failure to deduct any of the above installments by said paymaster, from any cause is at my risk, and if any installment be not deducted as above provided for, all my rights and the rights of my beneficiary under said policy issued to me shall be void. I hereby waive for myself and my beneficiary under said policy any notice of the payment or non-payment of any installments provided for, and I further agree that in case of default upon any of the above installments, the same may be deducted from my wages in any succeeding month, at the option of said association, but such deduction shall only reinstate me from the date of such deduction and for the insurance period covered by it.” The first installment was not taken out of the wages for the month of February for the reason that Henry’s wages for that month as freight brakeman amounted to
The notice set out in defendant’s bill of exception No. 2 is as follows: •.
“NORFOLK AND WESTERN RAILWAY ÜO.
“Office of Vice-President and General Manager, “RoaNOKE, Yav September 6, 1898.
“Circular No. 13.
“To all concerned-.
“Effective October 1, 1898, the Railway Officials and Employes Accident Association, of Indianapolis, Ind., will have the exclusive right of soliciting accident insurance from employes of this Company, and deductions from pay rolls for insurance premiums, will only be made in favor of the Association named.
“In return for this privilege employes will secure insurance at a material reduction in comparison with that charged by other accident insurance companies.
“Employes, preferring to insure with other companies, will be at liberty to do so, but will be required to arrange for the payment of premiums outside of the railway company’s accounts.
“J. L. Barr,
“Vice-President and General Manager.”
The evidence in relation to this was that it was posted on the
While all the direct evidence in the case relating to the question of payment is that no part of the premium ever was paid, counsel for defendant in error insist that the jury was warranted in finding that the premium was paid for the following reasons: First, the paymaster’s order was an absolute assignment of money due to the assured from the railroa.d company, called the agent of the insurance company, the money being in the hands of the collecting agent, and the principal having agreed to accept the assignment, thereby making the arrangement more than a mere order upon the company for the payment of the money. Second, the defendant having taken such an assignment and it having never been returned to the assured, the burden is upon the defendant to show that it did'not collect the money and the evidence adduced by the defendant upon that question is insufficient, the paymaster who testified that the company did not keep out any part of Henry’s wages having also represented to the insurance company that Henry was not on the pay rolls of the company and afterwards admitted in his testimony that he had made a mistake and that Henry was on the pay rolls for a large amount during all the time he was in the employ of the company and while the insurance was in force, this being contradictor}''. The paymaster was bound to know that Henry was on the roll, and, granting that Henry received the lapse notice, he knew the reason assigned therein for failure to deduct the premium from his wages was false, and that notice having stated that if any mistake was made, the company would adjust the matter, he had the right to believe that the mistake would be corrected without any action upon his part and to rely upon the duty of the insurance company and the railroad company to make the correction, he being without fault in the matter. In connection with this it is urged that the checks found in Henry’s possession, one of which was for only four dollars and ninety cents, offered reasonable ground for belief on the part of the jury that the premium had been deducted. Third, the written assignment was in lieu of payment and it being shown that the assured placed in the hands of the railroad company sufficient money to pay the premium and that the assignment was never surrendered the
While the brief for defendant in error proceeds upon tbo theory that the railroad company was the collector of the insurance company, it does not indicate the particular ground upon which the contention is based. The order itself was the railroad company’s only authority for deducting the premium installments from Henry’s wages. It was drawn by Henry, delivered to an agent of the insurance company and accepted by the railroad company. It contains certain stipulations to which all are parties so far as they relate to them. One stipulation was that if for any reason, be it a mistake of the paymaster or any other, the deduction should not be made all Henry’s rights under the policy should be forfeited. Whatever the relation created by the order between the insurance company and the railroad company may be, this was a positive and express, agreement between Henry and the insurance company. The policy made the application of the insured a part of it. It was further provided in the application that the paymaster’s order should be a part of the contract. Hence, the contract itself provided that the premium should be paid in installments of eight dollars and forty cents and that the' first payment should keep the insurance in force two months, the second installment two months, the third installment three months, and the fourth installment five months in their successive order, making twelve months for the four installments, the contract providing that if these four were paid the fifth should not be collected, and it was agreed by the insured that any failure from any cause to deduct any of the installments should result in the forfeiture of all his rights under the policy while any installment re
In the first clause of the paymaster’s order this assignment is said to be “In lieu of payments provided in my application for accident insurance, &c.” From this it is argued that the assignment of wages must be held to be a payment of the premium. In other words, Henry having drawn the order against his wages in favor of the insurance company and the railroad company having accepted the order, so far as Henry was concerned, the transaction amounted to payment of the premium. As to this Hornbrook v. Lucas, 24 W. Va. 496, is cited. All that was held in that case is that the taking by a land-lord of the negotiable note of his tenant for the rent due suspended the right of distress. It ivas further determined and held' that the taking of such note did not amount to a satisfaction of the debt, it not having been expressly agreed between the parties that the notes were given and received in payment and satisfaction of the debt. The order under consideration here recites that it is given “in lieu of payment” but does not expressly state that it is to operate between the parties as payment. On the contrary it expressly provides that if there is any failure from any cause to make the deductions from the wages provided for therein the policy shall be void. Furthermore this order is drawn upon wages that had not been earned at the time the order was made. It was dated in January, Í899, and provided that the payment should be made out of the wages for February, March, April and May of that year. Taking this in connection with-the express provision that the insurance should not be in force except upon payment of the premium, contained in the order'itself, it is impossible to construe the language “in lieu of payments” to be an express agreement that the insurance company will look to the railroad company on account of these unearned wages for its premium, put his insurance in force and keep it in force, and thus releive the insured from the payment of any premium, he having the right to quit work before a dollar of it should be earned and put in the hands of the company. That language can only be made into such an agreement by construction. In construing it the whole instrument must be taken together. Taking it all together it certainly does not and cannot result in such an unreasonable and inconsistent conclusion. The insured assigned part of his wages “in lieu of payments.”
Upon the authority of Stevenson v. Kyle, 42 W. Va. 229, it is urged that because the decedent was in the employ of the company and before his death had earned sufficient money to pay the premium and that money was in the hands of the railway company the assignment was valid, and, to that extent, a payment of the premium. There is no doubt about the validity of the assignment. The railway company could have deducted the premium from the wages. • The order was complete authority for that. If it had made the deduction, taken out the money and held it for the insurance company, it would have been a sufficient payment, for that would have been in accordance with the agreement expressed in the order. But in entering into that agreement both parties looked forward to, and provided for, the very contingency which happened, namely, that through some mistake or accident the money might not in fact be deducted, and provided, in that case, that the order should not amount to payment. IIow this express agreement can be laid aside and ignored is nowhere indicated in the brief for the defendant in error, Rumsey v. Laidley, 34 W. Va. 721, also cited in this connection is not in point at all. It was there decided that the holder of collateral securities by his negligence and refusal to enforce collection of the same became liable to the debtor for the amount of his loss by reason of such failure. Had the contract of assignment of these collateral securities provided that in such case of negligence the holder should not be liable but that the loss should fall' upon the assignor, the court would undoubtedly have given that provision of the contract force and, in doing so, would have been compelled to say that the loss fell -upon the debtor and not upon the creditor. Girard Ins. Co. v. Mutual Life Ins. Co., 97 Pa. 15, was a case in which the insurance company had declared the policy for-
It has been held in a great many cases that a provision in an insurance policy respecting the mode of payment of premium may be waived and such waiver may be.shown by the previous conduct of the parties. By accepting a note instead of requiring cash as stipulated in the policy the company waives that condition . and the note amounts to payment. The same is true of the acceptance of a check in lieu of cash. 19 Am. & Eng. Ency. Law (2d Ed.) 48. But there is no such waiver when there is an express agreement that the note or check shall not be regarded as pajunent and that in case of non-payment of the note at maturity the policy shall lapse. In such ease the parties are bound by a contract and their rights aré determined thereby. 16 Am. Eng. Ency. Law, (2d. Ed.) 859. Where a premium note is given and the policy provides that on failure of the in
In Landis v. Ins. Co., 6 In. App. Rep. 502, the insured had given an order containing substantially the provision found in the paymaster’s order in this case, .but, like the insured here, he drew the full amount of his wages leaving nothing with which to satisfy the order and failed to pay the premium and it was held that the acceptance of the order by the railroad company did not amount to payment of the premium and that the insured could not recover. The case of McMahon v. Ins. Co., 77 Ia. 229, was almost exactly like this case. The railroad company received the order; placed it on 'file as a voucher and paid the first installment. When the second installment became due the company refused to pay it on the ground that the insured was no longer in that company’s employment, but, in point of fact, he was in its .employment though on another division and drew all his wages for that month. Afterwards he wrote the insurance company to cancel his policy but neither the policy nor the paymaster’s order was returned to him. The installment paid gave him insurance from April 21st, until June 20th. Had the payment for June been deducted it would have kept his insurance alive until August 21st. He was killed on the 18th day of July. The court held that the order on
TJpon the question of actual payment the only direct evidence in the case is that the premium was not paid. The pay master of the railroad company testifies "that he did not deduct any of the premium installments from the wages of the insured and also that he did pay to Mr. Henry his wages for the months of February, March, April, May, Juné, July, August and September, 1899, and that he paid his wages for the months of October and November, 1899, to J. F. York, the administrator of the decedent. Chas. A. Luse, an officer of the insurance company, testifies that no part of the premium was ever paid. • Now it is insisted that, despite this positive testimony, the jury was warranted in finding that the premium had been deducted, from the mere fact that Norfolk and Western Railway Company checks for forty-four dollars, ninety-two dollars and four dollars and ninety cents were found in the possession of the decedent, it appearing that none of these checks correspond in amount with the wages earned by Henry for any month, as will be seen by reference to the statement hereinbefore given. One of them being for only four dollars and ninety cents it is apparent that that is payment for only a part of the wages for some month, but for what month and how the balance was paid does not appear. It is equally clear that a deduction from the wages of any month of any or all of the premium installments would not leave that result. There is no amount of wages for any month a deduction from which of any one or more of the installments will leave four dollars and ninety cents. The mere fact that the checks so found vary in amount from the wages earned, while competent evidence in connection with other facts which would make it reasonably certain that the deduction had been made, is insufficient, standing alone as it does, to raise a presumption of payment. It could only furnish a basis
Reversed.