Baltimore Life Ins. Co. v. Howard

• Decision Date: 17 June 1902
• Citation: 52 A. 397,95 Md. 244
• Parties: BALTIMORE LIFE INS. CO. OF BALTIMORE CITY v. HOWARD.
• Court: Maryland Court of Appeals

52 A. 397

95 Md. 244

BALTIMORE LIFE INS. CO. OF BALTIMORE CITY v. HOWARD.

Court of Appeals of Maryland

June 17, 1902

Appeal from Baltimore city court, Henry Stockbridge, Judge.

Action on a life policy by John F. Howard against the Baltimore Life Insurance Company of Baltimore City. From a judgment for plaintiff, the defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

Niles & Wolff, for appellant.

Thos Ireland Elliott and Fredk. T. Dorton, for appellee.

McSHERRY C.J.

This suit was instituted to recover on what is called an industrial insurance policy. The premium was an annual one payable in weekly installments of 25 cents on each and every Monday during the life of the insured. The policy was dated April 16, 1900. By the sixth condition indorsed on the policy, it is provided that if the weekly premiums should be due for more than four successive Mondays the policy would be void, but if the insured died while not more than four weeks' premiums were due the insurer should not be free from liability, "subject, however, to clause 16 hereof." The sixteenth condition is in these words: "Policies upon which premiums are due for more than four successive Mondays become thereby lapsed, whether the proper entries of such lapse are made upon the books of the society or not. Such policies can only be revived by the payment in full of all premiums due and the passing by the insured of a medical examination satisfactory to the society, both of which are conditions precedent to any such revival. Payment of money after a policy has been in arrears as aforesaid, without passing such a medical examination, will in no case revive the policy, but will only entitle the policy holder to a return, on demand, of whatever payments may have been made since the date of the lapse of the policy." Condition 11 prohibits agents, including superintendents "and all employés other than directors of the society," from altering contracts or waiving forfeitures, and does not permit them to receive premiums on policies in arrears beyond the time allowed by the society, except as provided by clause 16. On July 16, 1900, more than four weeks' premiums were due on the policy in suit, and the premiums never were paid up in full after that time, though between that date and the death of the insured 35 weekly payments were made. On February 25, 1901, six weekly premiums were due, and during that week four of those six were paid to the company. On March 4th another premium fell due and was paid, leaving two due at the time of the death of the insured, and she died four days after the last payment.

It appears that each policy holder is furnished with a pass book in which payments made to the agent of the company and the dates of such payments are entered. The agent calls upon the policy holders to collect the premiums. From time to time inspectors or superintendents are sent out by the company with the primary purpose of checking the accounts of the agents who collect the weekly premiums. These inspectors or superintendents then go with the agent to every policy holder, collect what they can, and examine the policy holders' book and receipt therein for the premiums paid to the inspector, if any are so paid. These inspectors or superintendents make up their reports, which show the number of the policy, the name of the insured, the amount of cash received, the amount due on each policy after crediting payments, and also the date to which the payments made settle the premiums. These reports, with this detailed information as to the status of every policy, showing whether the policy has lapsed or is in force, are returned to the office of the company, where a summary of them is made, and generally shown to the president and actuary. The inspector who called upon the insured in February, 1901, was Charles C. Rogers, and a page from his report was given in evidence. By that report it distinctly appeared that the policy sued on was six weeks in arrear on February 25th; that during the same week $1 was paid; and that after crediting that sum there were but two weeks' premiums due. The plaintiff then proved by a competent witness that she was present on February 25th when inspector or superintendent Rogers and an agent named Wacker called upon the insured and informed her that the premiums were in arrears; and the witness testified that Rogers stated to the insured: "Well, you pay one week, and I will fix the books all right for you;" that the insured paid one week's premium, and promised to pay three others later in the week, whereupon Rogers said: "Mrs. Howard, now the book is all fixed up, and you will be all right." To the admissibility of this testimony respecting the statements made by

Rogers, the defendant objected, but the court overruled the objection, and this decision forms the basis of the first exception. We need not pause to consider this ruling now, because what will be said later on in discussing the prayers and the granted instructions will be sufficient to show its accuracy. No allusion need be made to the second exception, because the ground upon which the overruled objection was founded was entirely removed by the evidence adduced by the defendant. It further appeared that the premiums paid by the insured to Rogers were turned over by him to the company. Upon the part of the defendant, Rogers testified that he did not make the statements attributed to him by the plaintiff's witness--being those set out in the first exception. He further testified that notwithstanding the defaults in July, 1900, collections were continued to be made upon the policy, though inspections had been made after the default, and had, of course and of necessity, revealed that default to the company. It was shown that about 20 of these inspection books, with an average of 300 names each, were filed in the company's office every week.

When the testimony was closed the plaintiff asked and the court granted the following instruction: "The plaintiff prays the court to instruct the jury that if they shall find from the evidence that after the weekly dues payable on the policy sued upon were more than four weeks in arrear, which fact was known or could have been known to the proper officers of the defendant company, said officers of said company continued to collect dues upon said policy, and that Mrs. Howard was told by the superintendent, Rogers, that her policy was all right, then they, the jury, may infer that such action on the part of said defendant company and its officers was a waiver of the default which occurred when the said dues were permitted to become more than four weeks overdue." An instruction embodying a converse hypothesis as to the statements of Rogers was given at the instance of the defendant. The defendant asked, but the court declined to give, an instruction--First, that there was no legally sufficient evidence to show that the company was indebted to the plaintiff over and above $8.75, the amount paid by the insured, after she had been in arrears for more than four weeks, in July, 1900; and, secondly, that there was no legally sufficient evidence to warrant the jury in finding that the company had waived the forfeiture occasioned by the six weeks' delinquency in July. To the granting of the plaintiff's instruction, and to the refusal to give those asked by the defendant, the company excepted, and these rulings constitute the errors assigned in the third exception.

According to the terms of the policy, the failure to pay the weekly premiums for six consecutive weeks caused a forfeiture of the insurance in July, 1900; and though, under the sixteenth clause, a particular method was pointed out for its reinstatement, still if the company waived the forfeiture it cannot now revive that forfeiture and rely on it to defeat a recovery after a loss has happened; for a forfeiture once waived is no longer available. Having been waived, it is to...