Foscue v. Greensboro Mut. Life Ins. Co, (No. 180.)

• Decision Date: 10 October 1928
• Docket Number: (No. 180.)
• Citation: 196 N.C. 139,144 S.E. 689
• Court: North Carolina Supreme Court
• Parties: FOSCUE. v. GREENSBORO MUT. LIFE INS. CO. et al.

(196 N.C. 139)

144 S.E. 689

FOSCUE.

v.GREENSBORO MUT. LIFE INS. CO. et al.

(No. 180.)

Supreme Court of North Carolina.

Oct. 10, 1928.

Appeal from Superior Court, Pitt County; Grady, Judge.

Civil action by Annie Foscue, or Annie Faucett, administratrix of John Foscue, or John Faucett, against the Greensboro Mutual Life Insurance Company and another. Judgment for plaintiff, and defendants appeal. Error.

The plaintiff is the duly appointed administratrix of John Foscue.

The evidence tended to show that on or about the 8th day of September, 1925, the Greensboro Mutual Life Insurance Company issued to John Foscue (sometimes known as John Faucett) an accident policy of insurance in the sum of $500. The policy was issued in consideration of a monthly premium of $3.40 paid in advance by the insured. The policy further provided that after three months from the date of the policy a grace period of ten days in payment of premiums was allowable. The policy further provided:

"No agent has authority to change this policy or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the company, and such approval be indorsed hereon."

The deceased was accidentally killed on the 19th day of August, 1926. The deceased had paid all premiums due on the policy on or before the 10th day of each month up to August, 1926.

The evidence tended to show that the insured, John Foscue, or Faucett, came to the agent of defendant, who wrote the policy, and who had been collecting the premiums thereon, on or about the 4th or 5th of August, 1926, and told said agent that he only had $3, which was not sufficient to pay the premium of $3.40. The agent declined to take a partial payment upon the premium then due, but told the deceased that, if he would take out a new policy and pay for the new policy, he would extend the time of payment of premium on the existing policy until the next pay day of the insured. Thereupon, on the 9th of August, 1926, an industrial policy requiring a premium of 25 cents a week was issued to the deceased. The August premium of $3.40 had not been paid up to the death of the insured.

The only material controversy in the case grows out of the third issue submitted by the court, which was as follows:

"Was the policy of insurance sued on in full force and effect at the time of John Foscue's death?"

All the issues were answered in favor of the plaintiff, and, from the judgment rendered upon the verdict, the defendant appealed. The record discloses that the defendant did not renew its motion of nonsuit at the conclusion of all the evidence.

J. Con Lanier and P. R. Hines, both of Greenville, for appellants.

S. J. Everett, of Greenville, for appellee.

BROGDEN, J. The question is this: Has a soliciting or collecting agent of an insurance company the authority to waive the payment of premiums provided in a policy of insurance or extend the time of payment thereof?

The trial judge charged the jury:

"Now, I charge you as a matter of law, and I quote to you from an opinion of the Supreme Court, where it says, in the case of Moore v. Accident Insurance Corp., reported in 173 N. C. 5S2, 92 S. E. 362. 'It is abundantly settled that an insurance company will be estopped to insist upon a forfeiture if by any agreement, either express or implied by the course of its conduct, it leaves the insured honestly to be-lieve that the [insurance] assessments will be received after the appointed day.'

"I charge you this, gentlemen of the jury, that the agent of the company who has the authority from the company to solicit and to write policies of insurance, and to receive the premiums thereon, is the agent for all purposes in making contracts governing the policy, and that, if the agent of the company promised and agreed with John Foscue that he would carry him until the next pay day in consideration of his taking out another policy of insurance, and that John Foscue relied upon that promise, thinking his policy was in force, then the company would be liable, gentlemen, and it would not have lapsed. In other words, the company would have been responsible for the acts of its agent."

During the course of the judge's charge, one of the jurors asked the judge if an agent could bind the company by a contract with the insured to carry over the premium, and the judge answered "Yes." To these instructions the defendant excepted.

In Graham v. Ins. Co., 176 N. C. 313, 97 S. E. 6, this court said:

"The plaintiff has failed to show any authority upon part of Mrs. Wall to make the guaranties claimed. As is said by Ruffin, J., in Biggs v. Ins. Co., 88 N. C. 141: 'Where one deals with an agent, it behooves him to ascertain correctly the extent of his authority and power to...