Greenwood v. New York Life Ins. Co.

• Decision Date: 24 October 1887
• Citation: 27 Mo.App. 401
• Parties: PEYTON F. GREENWOOD, Respondent, v. THE NEW YORK LIFE INSURANCE COMPANY, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 401

PEYTON F. GREENWOOD, Respondent, v. THE NEW YORK LIFE INSURANCE COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Adair Circuit Court, HON. ANDREW ELLISON, Judge.

Affirmed.

Statement of case by the court.

In 1875 the plaintiff made application, in writing, to the defendant for a policy of insurance on his life in the sum of one thousand dollars. The application was made at Kirksville Missouri, to a general agent of the defendant, one Woodfin. At the time of making the application, the plaintiff made and had an express agreement with Woodfin that the premiums on the proposed policy should be paid by plaintiff to the Kirksville Savings Bank at the town of Kirksville. Said agreement was verbal, it was not referred to in the application, which, as said, was in writing and signed by the plaintiff. Said application contained the following declaration or statement: " And, inasmuch as only the officers at the home office of the company have authority to determine whether or not a policy shall issue on any application, and as they act on the written statement or representations referred to, it is expressly understood and agreed that no statements, representations, or information made or given by, or to, the person soliciting or taking this application for a policy, or to any other person, shall be binding on the company, or in any manner affect its rights unless such statements, representations, or information be reduced to writing and presented to the officers of the company, at the home office, in the above application."

On the nineteenth day of July, 1875, the defendant, by its agent Woodfin, delivered the policy applied for to the plaintiff. At the trial of this case, the plaintiff testified that the policy was when delivered enclosed in the envelope then had by him in court on which was printed in red ink, " Premiums payable at Western Branch office, 417 Pine Street St. Louis, Missouri. William P. Hill, Manager; " and on the bottom of the envelope was, " M. H. Woodfin, General Agent." The plaintiff further testified as follows: " I was attracted by this red ink indorsement on the envelope, and told him my contract was to pay my premiums here at the bank, and at no other place. I would not have accepted the policy, but for this agreement. Woodfin said that was all right; that I could pay them here; that renewal receipts would be forwarded here to the bank where I could pay them, and that notice could be sent me, but that the sending of notice was only a courtesy."

The policy contained, among others, the following conditions and agreements:

" 2. If the premiums as above stipulated shall not be paid on or before the days above mentioned for the payment thereof at the office of this company, in the City of New York (unless otherwise expressly agreed in writing), or to agents when they produce receipts signed by the president, vice-president, or actuary, then, and in every such case, this company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine (claim for paid-up policy, as hereinbefore provided for, excepted), and the acceptance, in any case, by the company, of a premium on a day subsequent to the day whereon the same is payable, as above provided, shall be deemed an act of courtesy only, and shall not be deemed a waiver of the foregoing condition as to payment of premium accruing thereafter, or as establishing any custom in conflict therewith. While said company, or its agents, may, at their option, give notice of the time of payment of said premiums, the giving of such notice shall be deemed an act of courtesy only, and shall not be deemed to establish a custom in relation thereto, or to be obligatory upon said company or its agents.

3. In every case where this policy shall cease, and determine, or become, or be null and void, all payments thereon shall be forfeited to this company, and no action, or right of action, shall remain to, or be maintained against, this company by the assured, or by any other person, by virtue of this policy, or of anything connected therewith.

4. Receipts for premiums are not valid unless signed by the president, vice-president, or actuary.

5. Agents of the company are not authorized to make, alter, or discharge contracts, or waive forfeitures.

6. Inasmuch as only the officers at the home office of the company, in the City of New York, have authority to determine whether or not a policy shall issue on any application, and as they act on the written statements and representations hereinbefore referred to, it is expressly understood and agreed that no statements, representations, or information made, or given, by, or to, the person soliciting, or taking the application, for this policy, or to any other person, shall be binding on the company, or in any manner affect its rights, unless such statements, representations, or information, be reduced to writing and presented to the officers of the company, at the home office, in the application referred to."

To the policy was attached a copy of the original application, signed by the plaintiff, upon which the policy was issued.

The premiums on the policy were payable semiannually. The plaintiff paid the premiums as they became due, from July 19, 1875, until July 19, 1883, to the Kirksville Savings Bank, and received from said bank the proper receipts, which had been signed and forwarded by the defendant to said bank, to be delivered to plaintiff upon the payment by him of said premiums.

On July 19, 1883, the plaintiff paid the premium then due to the bank at Kirksville, but the defendant refused to receive it, or to give a receipt for it, and demanded that such premium be forwarded either to New York, or St. Louis, which place it cannot be learned with certainty from the record, but that is utterly immaterial. After said last-named date, as a premium became due, the plaintiff paid it to the Kirksville bank and demanded a receipt therefor, and the defendant refused to receive the premium at said bank, or to give such receipt. The result was that the defendant declared the policy forfeited for non-payment of premiums in accordance with the terms and conditions of the policy.

The plaintiff brought this action, in which the court was asked to set aside the forfeiture of the policy, to restore the plaintiff to all his rights, under said policy, and to require the defendant to accept the deposits in its favor in the Kirksville Savings Bank, made by the plaintiff, or, in lieu thereof, to require the defendant to pay plaintiff the total amount paid by him in premiums on said policy, with interest on each premium from its payment.

Upon the foregoing facts the court rendered a decree adjudging that the defendant restore the policy and forward to plaintiff all the necessary receipts up to date, and that the plaintiff have, and recover, etc., his costs, etc.

JOHN F. WILLIAMS and HOUGH, OVERALL & JUDSON, for the appellant.

I. Under the contract of insurance set forth in the policy issued by the defendant, and accepted by plaintiff, the place of payment of premium, so far from being the Kirksville Savings Bank, is, in express terms, made the home office of the company in the City of New York, unless otherwise expressly agreed in writing; or when agents produce receipts signed by the president, vice-president, or actuary. Life Ins. Co. v. Davis, 95 U.S. 425.

II. The limitation upon the authority of the soliciting agent (to-wit: that nothing said or done by or to him should affect the rights of the company, unless reduced to writing, and transmitted to the company with the written application) having been brought home to the knowledge of the plaintiff, a copy of the application being attached to the policy when delivered to him, and his attention called to it in express terms by endorsement on the face of the policy; the express provision of the policy, as to the place of payment of premiums, cannot be controlled or affected by the alleged oral agreement with the agent at or prior to the issue of the policy. Life Ins. Co. v. Fletcher, 117 U.S. 519; S. C., 22 Cent. Law Jour., 529, with note and cas. cit.

III. Even conceding the alleged oral agreement with the agent, as to the place of paying the premium, it was the duty of plaintiff, when he received the policy, with his attention called to copy of application attached, and to the importance of making the corrections, to examine it, and to notify the company of his refusal to accept. After nine years he is deemed to have accepted the policy as issued, with place of payment as therein stipulated, there being no evidence whatever that the receipt of premiums at the Kirksville Savings Bank was other than a mere matter of convenience for the time being. Ins. Co. v. Neiberger, 74 Mo. 173, cited, approved, and followed in N.Y. Reports; Ins. Co. v. Fletcher, 117 U.S. 519; Swain v. Ins. Co., 96 Pa. 43; Richardson v. Ins. Co., 46 Me. 394; Ins. Co. v. Davis, 95 U.S. 428.

IV. The acceptance by the company of the premiums at the Kirksville Savings Bank, until 1884, or, rather, its continuance of the Kirksville Savings Bank as its agency, until that date, when plaintiff was duly notified that for the future such agency was discontinued, did not, and could not, make a binding contract for the permanent continuance of such agency during the life of the policy, for that the essential element of a contract by estoppel was lacking, to-wit: the consequent reliance, to his prejudice, by the plaintiff, upon such conduct, or tend to prove that such acceptance, at the Kirksville Savings Bank, was other than a temporary establishment of an agency for the time, for the mutual convenience of the parties...