Fraser v. Home Life Ins. Co.

• Decision Date: 15 August 1899
• Citation: 45 A. 1046,71 Vt. 482
• Parties: FRASER v. HOME LIFE INS. CO.
• Court: Vermont Supreme Court

45 A. 1046

71 Vt. 482

FRASER

v. HOME LIFE INS. CO.

Supreme Court of Vermont. Washington.

Aug. 15, 1899.

Exceptions from Washington county court; Tyler, Judge.

Assumpsit by Jessie Fraser against the Home Insurance Company on a policy of life Insurance. Verdict and judgment for plaintiff. Defendant excepts. Reversed.

Argued May term, 1899, before TAFT, C. J. and ROWELL, MUNSON, START, THOMPSON, and WATSON, JJ.

J. W. Gordon and Richard A. Hoar, for plaintiff.

Dillingham, Huse & Howland, for defendant.

TAFT, C. J. The plaintiff seeks to recover the amount of an Insurance policy upon the life of her husband for the sum of $2,000. The policy was dated July 27, 1891. The premiums were payable quarterly, and all premiums to and including the one due July 27, 1894, were paid. Upon trial the only question in issue was whether the policy had become forfeited by nonpayment of the premium due October 27, 1894. The first premium was due when the policy issued, and its payment was required in advance. The application was made a part of the policy, and therein it was stated that a note for the first premium would accompany the application. The record does not show what became of the note, but it is fair to infer that it was paid at maturity. Upon what time it was given does not appear, but we fail to see how that can be material. After the first premium, the quarterly premiums matured on the 27th days of October, January, April, and July. It becomes material to inquire when the respective premiums were paid. There were twelve renewal premiums paid. It is not shown when those maturing January 27, 1892 and 1893, were paid; therefore no inference can be drawn against the defendant by reason of their having been paid when overdue, as that fact does not appear. Of the other ten premiums two were paid when due; another was paid when due by the agent, who paid the company, and took the insured's note for It, and the note was paid when one day overdue; two were paid when one day, three when two days, and one eleven days after maturity. The payment of the last quarterly renewal, July 27, 1894, was extended to September 6, 1894, and interest paid for such extension, and payment made four days after the time of extension expired. It may well be contended that, with one exception, all the premiums were paid when due. As above stated, it does not appear when two were paid, and it is fair to infer they were paid when due. The note which was given for one was paid before maturity. The premium, the payment of which was extended to September 6, 1894, was paid, it does not appear when. The receipt was dated the 10th; but payments were generally made by check deposited in the post office at Barre, and it was generally one or more days before the checks were received in New York, and receipts given. Such was evidently the case in respect to the five premiums paid one and two days after they fell due. There was but one other premium, and that was paid eleven days after its maturity. This brings us to the consideration of the quarterly premium which became due October 27, 1894, and which, it is conceded, has never been paid. The general agent, Mr. Carpenter, wrote the Insured November 7, 1894, in regard to the premium, then eleven days past due; and two days later the insured wrote Mr. Carpenter (defendant's Exhibit 10): "I find money hard to collect I Inclose you 20 cents in postage stamps to extend time on my policy for a month or so till I get the money to send you. Hope this will be all satisfactory." In reply to this Mr. Carpenter wrote, under date of November 12, 1894: "Your favor of the 9th inst with 12 cents interest for extension is at hand. This will continue the policy in force until the 27th November, at which time I trust you will be able to meet the premium; but, if not be sure and let me know before the 27th, that I may be enabled to take care of it for you." The testimony of Carpenter tends to show that nothing further was ever done by the insured, and that he never heard from him, the insured, again, upon the subject. The plaintiff's testimony tended to show that the agent, Carpenter, extended the time of payment of the October, 1894, premium to December 27, 1894, the insured dying on the 25th of that month. On the 17th of December, 1894, the defendant sent the insured a notice that a quarterly annual premium on the policy would become due and payable on the 27th of January, 1895, if such policy was in force on that day. These are the material facts in the case which it is necessary for us to consider. It was a part of the contract that, in case of nonpayment of a premium, the policy should be void, and in that case all payments previously made to be forfeited to the company, save in certain excepted cases, which it is unnecessary to consider in the case before us.

1. The various exceptions taken to the testimony in regard to the regularity of the receipts of the premium, the authority of the agent, Carpenter, to waive any condition of the settlement whether the officer signing the receipts was duly authorized to sign them, whether the receipts were in due form or duly issued, are not tenable. They become immaterial in view of the fact that the premiums were all paid to and received by the company. After the premiums were received by the company, it is too late for them to raise any question of the form of the receipts, or the authority of the agent to receive them. The receipts were offered only upon the question of the forfeiture, and the waiver of the payment of the premium in question, and their pertinency upon these questions is hereafter considered.

2. The plaintiff conceded that the premium due October 27, 1894, had not been paid, and that she could not recover the full amount of the policy unless she established the fact that the company, by an express agreement, by its agent Carpenter, extended the time of the payment of the October premium until December 27, 1894, or that the action of the defendant company was such that the insured, Fraser, might reasonably believe, and did believe, that the time for its payment had been extended or waived. There was testimony in the case tending to establish the plaintiff's claim that the time of payment of the premium due October 27, 1894, had been extended to December 27 1894, and Interest paid for the two-months extension. The plaintiff testified she had seen a letter from the agent, Carpenter, to the insured, informing the latter that he had sent all the interest, and that the time of paying the premium had been extended to December 27, 1894. The defendant insists that the letter referred to by the plaintiff was plaintiff's Exhibit O, which continued the policy in force until November 27, 1894; but this question was for the jury. If the company extended the time in which to pay the premium from the day it became due, October 27, 1894, for two months, until December 27, 1894, it cannot now be heard to say that the policy was void for the reason that the premium had not been paid. It could not say there was a forfeiture, for there was none, and the plaintiff can recover. The question was made upon the trial below and fairly submitted to the jury. It was a part of the contract that "no agent has power on behalf of the company * * * to extend the time for paying a premium," etc. The company invoke the aid of this clause, and claim that Carpenter had no power to extend the time to pay the premium; that the company alone could do that. We hold that the words "no agent" in the clause referred to mean a local agent, and have no reference to a general agent. Carpenter was a general agent and had supervision over a territory larger than Vermont; and,...