Daley v. Metro. Life Ins. Co.

• Decision Date: 26 January 1925
• Citation: 128 A. 531
• Parties: DALEY et al. v. METROPOLITAN LIFE INS. CO.
• Court: New Hampshire Supreme Court

128 A. 531

DALEY et al.

v. METROPOLITAN LIFE INS. CO.

Supreme Court of New Hampshire. Hillsborough.

Jan. 26, 1925.

Transferred from Superior Court, Hillsborough County; Kivel, Judge.

Assumpsit by Esther Daley and others against the Metropolitan Life Insurance Company for proceeds of a policy insuring the life of Margaret Daley. Verdict for plaintiffs. Transferred on exceptions to a denial of a directed verdict. Exceptions sustained, and verdict set aside.

Assumpsit for the proceeds of a policy insuring the life of Margaret Daley. Trial by jury, and verdict for plaintiffs. The policy, issued in 1913, provided for the payment of weekly premiums of 40 cents, with "a grace of four weeks" to be "granted for the payment of every premium after the first, during which time" the policy was to continue in force. It also provided for a revival after forfeiture for nonpayment of premiums, upon payment of all arrears and proof of good health. After the policy was issued, the defendant authorized its agents to collect premiums in one sum when not over 13 weeks in arrears. The last premium was paid Monday, June 28, 1920, and Margaret died Monday, October 11, 1920. Premiums were paid several times and accepted when from 4 to 8 weeks overdue. A tender of payment of premiums in arrears 2 days before Margaret died made in her behalf was refused. An agent of the defendant testified that 2 or 3 weeks before she died he tried to get her to pay the overdue premiums; that she then said she was unable to pay but would do so later, and that he explained to her that the policy was "out of benefit" by reason of her nonpayment of premiums. Transferred on exceptions to the denial of a directed verdict on the issue of waiver, exclusion of evidence, argument, and charge.

Banigan & Banigan and Edward W. Banigan, all of Manchester, for plaintiffs.

Branch & Branch and Frederick W. Rranch, all of Manchester, for defendant.

ALLEN, J. The policy by its terms would have become forfeited for nonpayment of premiums 4 weeks after June 28, 1920, but for the extension of the grace period to 13 weeks, which kept it in force until September 27. It is conceded that the tender of October 9, could not operate to reinstate the policy under the revival clause, since the insured's condition at that time precluded compliance with the requirement of proof of good health. The tender was therefore too late unless there was a waiver of the time limit, and the exception relative to a directed verdict presents the question whether there was evidence of such a waiver. There was no waiver in the sense that the defendant intentionally relinquished its rights, and strictly, the question is of estoppel to deny a waiver.

"The doctrine of waiver as asserted against insurance companies to avoid the strict enforcement of conditions contained in their policies, is only another name for the doctrine of estoppel." Appleton v. Insurance Co., 59 N. H. 541, 545 (47 Am. Rep. 220).

To determine an apparent as thus distinguished from an actual waiver, the test is whether the insurer's course of dealing is such as to induce a reasonable belief on the plaintiff's part of a waiver in fact. Appleton v. Insurance Co., supra; Dunn v. Insurance Co., 69 N. H. 224, 39 A. 1075; Lally v. Insurance Co., 75 N. H. 188, 72 A. 208; Langlois v. Association, 79 N. H. 264, 108 A. 289.

The eight occasions during the life of the policy when premiums 4 to 8 weeks in arrears were paid and accepted were applications of the 13-weeks extension, and could induce no reasonable belief that the forfeiture was thereby postponed beyond the extension. These payments were within the established limit by a substantial margin of time, and carried no implication either that there was no limit or that it was somewhere beyond the limit established. A waiver either by words or conduct does not extend beyond their fair meaning. The 4 weeks of grace given by the policy defined the limit, and the extension to 13 weeks defined the limit of the extension. A waiver up to a certain mark waives nothing beyond it, and the extreme period allowed imported no allowance of even greater extremes.

Whether the insured knew of the 13-week extension is problematical. Neither the overdue payments made, nor the testimony about the agent's talk with her two or three weeks before she died, nor the tender just before she died throw more than equivocal light on her understanding. If she did not know about it, the acceptance of the overdue payments made fairly implied no waiver of a lapse when the payments were almost 15 weeks in arrears. If she did know of it, then there is nothing to show she might exceed the extension, since all of the overdue payments were within it.

In Lally v. Insurance Co., supra, the period of nonpayment was not longer than any previous period in which payments had been waived. In Dunn v. Insurance Co., supra, the period was less than the time the waiver gave, and in Langlois v. Association, supra, the waiver was always of a definite period never exceeded.

The testimony of the talk between the insured and an agent 2 or 3 weeks before she died referred to a time antedating the expiration of the 13-weeks extension period. Only a summary of the testimony is transferred. According to it, she was told in effect she must pay then to keep the policy in force. Telling her it was not too late then was not telling her it would not be 2 or 3 weeks later, regardless of the warning testified to as given her. The testimony would seem to indicate adherence to, rather than a waiver of, the limit of the extension period.

But if any inference of its purport may be made other than that she was told it would be too late if she did not then pay, there is nothing to show any implied or apparent authority of the agent to waive the 13-week extension. No waiver beyond the authorized limit had previously been given, and the defendant had done nothing which would reasonably give the insured to think the agent had authority to give her as much time as she took. Even if it be assumed she could be found ignorant of the extension limit, the authority to waive as disclosed by the...