Hartford Life & Annuity Ins. Co. v. Eastman

• Decision Date: 03 March 1898
• Citation: 54 Neb. 90,74 N.W. 394
• Court: Nebraska Supreme Court
• Parties: HARTFORD LIFE & ANNUITY INS. CO. v. EASTMAN.

54 Neb. 90

74 N.W. 394

HARTFORD LIFE & ANNUITY INS. CO.

v.EASTMAN.

Supreme Court of Nebraska.

March 3, 1898.

Syllabus by the Court.

1. Stipulations in a contract of life insurance providing for a forfeiture in case of default by the insured in paying premiums at a place and on a day specified are inserted for the benefit of the company, and may be waived by it.

2. Such waiver may be inferred from the acts, declarations, or conduct of the officers or agents of the insurance company, charged with the management of its business, and acting within the scope of their authority.

3. A provision in a policy of life insurance requiring payment of assessments in cash at its office in a distant state is waived by habitually accepting good checks in lieu of cash.

4. When an insurance company invites its patrons to use the mails in transmitting premiums, and gives express directions in relation thereto, it will warrant an inference that the company intended to accept as payment funds sent to it by mail in time to reach its office, in due course, on or before the day such premium would fall due.

Error to district court, Douglas county; Ferguson, Judge.

Action by Eliza A. Eastman against the Hartford Life & Annuity Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.Warren Switzler, for plaintiff in error.

I. R. Andrews and Brome, Burnett & Jones, for defendant in error.

SULLIVAN, J.

This proceeding in error is prosecuted to obtain a reversal of a judgment for $2,123.56, rendered by the district court for Douglas county, in favor of Eliza A. Eastman, against the Hartford Life & Annuity Insurance Company. The action was upon a policy of insurance issued by the plaintiff in error on the life of George W. Eastman, and payable on his death to his wife, the defendant in error. The policy provided that premiums becoming due should be paid at the office of the company in Hartford, Conn., on or before the 5th day of the month next following the call therefor; and it was further provided that the policy should lapse in case of nonpayment of any premium according to the terms of the contract. To secure the reinstatement of a lapsed policy, it was necessary for the insured to pay the premium, and furnish a health certificate. On December 5, 1893, a premium of $9.94 became due, and was unpaid. On the 26th of the same month, Eastman died. The company rests its defense to the action on the proposition that the policy had lapsed, and was not in force, at the time of Eastman's death. The defendant in error contends that the company had waived its right to insist on a strict compliance with the provision of its policy in regard to the payment of premiums. It appears that in 1891 the policy in question was pledged to C. F. Reed, who thereafter paid the premiums by issuing to the plaintiff in error the check of C. F. Reed & Co., drawn on the First National Bank of Omaha, and mailed in time to reach Hartford on or before the 5th of the month in which they became due. It further appears that in the years 1889 and 1890 there were five occasions on which payments were not made at the time required by the policy, and that in every such case Eastman furnished a health certificate to the company, and received from it a reinstatement certificate. On the trial the jury found--and we accept the finding as conclusive of the fact--that on December 1st Reed mailed, at Omaha, a check, in the usual form, for $9.94, to the insurance company, at Hartford, to pay the premium maturing on December 5th. This check did not reach its destination until December 9th, and the company then declined to accept it, and returned it to Eastman, with a letter advising him that the policy had lapsed, and that he must furnish a health certificate in order to secure a reinstatement. Being then sick, as it seems, Eastman was unable to procure this certificate.

From the foregoing statement it will be seen that the only question in the case is whether the company waived its right to declare a forfeiture of the policy for nonpayment of the last premium on the day it became payable. By the terms of the contract, the company was entitled to receive all premiums in cash at its office in Hartford on the day they became due; and, for a failure to so pay any such premium, the company might rightfully declare a forfeiture. But this provision was inserted in the contract for the company's benefit, and might be waived by it. This proposition is abundantly established by authority. 11 Am. & Eng. Enc. Law, 308. And it is equally well settled that such waiver may be inferred from the acts, declarations, or conduct of the officers or agents of the company charged with the management of its business, and acting within the scope of their authority. Any act of the insurer which reasonably indicates a purpose not to insist on a strict compliance with any provision of its policy will be...