Interstate Life & Accident Co. v. Pannell

• Decision Date: 05 February 1934
• Docket Number: 30997
• Citation: 152 So. 635,169 Miss. 50
• Parties: INTERSTATE LIFE & ACCIDENT CO. v. PANNELL
• Court: Mississippi Supreme Court

152 So. 635

169 Miss. 50

INTERSTATE LIFE & ACCIDENT CO. v. PANNELL

No. 30997

Supreme Court of Mississippi

February 5, 1934

Division B

1 INSURANCE.

Substantive rights of parties to life policy issued by Tennessee company to resident of Tennessee, including construction of policy held governed by Tennessee law, and remedies, evidence, and procedure by law of Mississippi, where action on policy was brought.

2. COMMON LAW.

Common law, except as modified by statute, prevails in Mississippi and Tennessee.

3 INSURANCE.

Statute of forum making proof of enumerated facts conclusive evidence of agency for insurer held in derogation of common law and inapplicable to case where insurer, its agents, and insured were residents of Tennessee and all essential acts were performed in such state (Code 1930, section 5196).

4. EVIDENCE.

Presumption is that principles of common law, as interpreted by Tennessee courts, conform with principles of common law as interpreted by Mississippi courts.

5. INSURANCE.

Insurer was not liable on lapsed life policy under laws of Tennessee, where insured died before application for reinstatement was approved by insurer, as required by policy, though money and note required to reinstate had been paid to agents, without express or implied authority to bind insurer.

HON. THOS. E. PEGRAM, Judge.

APPEAL from circuit court of Union county, HON. THOS.E. PEGRAM, Judge.

Action by Mrs. Cora C. Pannell against the Interstate Life & Accident Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment rendered for appellant.

Reversed, and judgment here for appellant.

Chas. Lee Crum, of New Albany, for appellant.

The evidence is clear and undisputed that the payment of the premium due October 1, 1930, was not made by the insured on or before November 2, 1930, and therefore the policy here sued on did lapse, and by its forfeiture was of no force, according to the terms of the policy, unless it was revived or reinstated as provided in the policy.

The recitals in the policy, that no agent of the company had any authority to modify the terms of the policy, extend the time for the payment of any premium, reinstate a lapsed policy, or waive a forfeiture thereof, is notice to the insured holding the policy of the limitations of the agent's authority in these respects.

The insured, in a life insurance policy that had lapsed for nonpayment of premium, who makes application to the company to have policy reinstated, and who states in the application that default has been made in paying such premium, and with the application tenders to the company a check or cash and a promissory note for the balance in default, to be applied by the company in payment of past due premium, on approval by the company of the application for reinstatement, such conditional delivery of the check or money and note to either company, or its authorized agents, is not an acceptance by the company of such check or money and note, unless and until the application for reinstatement is approved, and such conditional acceptance of the check or money and note by the company, or its authorized agent, does not constitute a waiver of the forfeiture.

Pacific Ins. Co. v. Galbaith, 115 Tenn. 471; Edington v. Mich. Mut. Life, 134 Tenn. 189; N.Y. Life Ins. Co. v. O'Dom, 56 So. 379; Brotherhood Eng. v. Bridges, 144 So. 554; Fore v. U. S. Fire Ins. Co., 129 Miss. 497, 92 So. 628.

The plea of general issue puts the averment that due proof of death was furnished the defendant squarely at issue.

Seagner v. Murray, 91 So. 459.

The powers possessed by agents of insurance companies, like those of any other corporation or of an individual principal, are to be interpreted in accordance with the general law of agencies.

B. N. Knox, of New Albany, for appellee.

Every material issue in this case comes squarely within the rules and statements of law as handed down by this court in the case of Stonewall Life Ins. Co. v. Cooke, 144 So. 217.

Forfeitures are looked upon by the courts with disfavor.

Morgan v. Independent Order, 90 Miss. 864; Equitable Life Assur. Soc. v. Ellis, 105 Tex. 526; Knickerbocker v. Life Ins. Co., 96 U.S. 234, 24 L.Ed. 689, 692.

The law will never recognize one where the party claiming the forfeiture has not itself at every stage recognized it and insisted upon it.

Bailey v. Sovereign Camp, 116 Tex. 160, 47 A. L. R. 876, 885.

Very slight evidence will suffice to support a finding that a waiver of the right of forfeiture has occurred.

Martin v. New York Life Ins. Co., 30 N. M. 400, 40 A. L. R. 406, 411.

Argued orally by B. N. Knox, for appellee.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Union county against appellant on a one thousand dollar life insurance policy, issued by appellant to Mrs. Daisy P. Jones, the daughter of appellee, in which policy appellee was named as the beneficiary upon the death of the insured. The trial resulted in a verdict and judgment for appellee for the face value of the policy, one thousand dollars. From that judgment appellant prosecutes this appeal.

At the conclusion of the evidence, both parties requested a directed verdict; that of appellant was refused, and that of appellee was granted. There was no conflict in the material evidence in the case; therefore, one or the other of the parties was entitled to a directed verdict. The sole question in the case was whether or not appellant waived the forfeiture of the policy for nonpayment of the second premium. Appellee contends, and the trial court held, that forfeiture was waived by the action of Roy Jackson, soliciting agent of Rhodes & Sloan, appellant's general agents.

Appellant's home office and principal place of business was at Chattanooga, Tennessee, when the policy of insurance was issued and at the time of the trial. The insured, Mrs. Daisy P. Jones, was, at that time and also at the time of her death, a resident of the city of Chattanooga, in that state. Rhodes & Sloan conducted a general insurance agency in that city, representing appellant and other insurance companies. Roy Jackson, who resided in the same city, was employed by Rhodes & Sloan as a soliciting agent. He had authority to solicit insurance, collect the first premium and any renewal premium where a policy had lapsed.

The policy here in question went into effect October 1, 1929; it provided for an annual premium of forty-two dollars and eighty-five cents, payable in advance. The first premium was paid. The second premium was due on or before the 1st of October, 1930. The policy contains the usual grace period of thirty days. The second premium was not paid within the thirty days of grace. On November 21, 1930, the grace period had expired. Sixteen days thereafter, on November 18, 1930, for the purpose, as claimed by appellee, of continuing the policy in force, Roy Jackson and Mrs. Jones entered into the following agreement: That Mrs. Jones would pay twelve dollars and eighty-five cents cash and give her note for the balance of the premium, thirty dollars, payable on the 15th of February, 1931, with six per cent. interest from October 1, 1930, until paid. Accordingly, on that date Mrs. Jones gave Jackson a check on the American Trust & Banking Company of Chattanooga for twelve dollars and eighty-five cents; this check was payable to Jackson, not to Rhodes & Sloan, nor to appellant. On the next day, November 19, 1930, Mrs. Jones executed a note for thirty dollars, payable to appellant on February 15, 1931, with six per cent. interest per annum from October 1, 1930, until paid. The note recited that it was accepted by appellant at the request of the maker, together with twelve dollars and eighty-five cents, in cash upon the express agreement that, although no part of the premium due on the 1st of October, 1930, on the policy involved, had been paid, the insurance thereunder should be continued in force until midnight of the due date of the note, and, if the note was paid on or before its due date, or within ten days thereafter, such payment, together with the twelve dollars and eighty-five cents, should then be accepted by appellant as payment of the premium, "and all rights under said policy shall thereupon be the same as if said premium had been paid when due; that if this note is not paid on or before the day due, or within ten days thereafter, said policy shall lapse," etc.

The check for twelve dollars and eighty-five cents was turned over by Roy Jackson to his principal, Rhodes & Sloan, who held it until the 5th day of January, 1931, when it was cashed and the proceeds held in "suspense account." The thirty dollar note was not turned over to either appellant or Rhodes & Sloan, but was held by Jackson until the 8th day of January, 1931. On that date, according to the testimony of Jackson, Mrs. Jones telephoned him that she desired to see him with reference to reinstating her insurance. Jackson went at once to see her about the matter. During this interview Jackson gave her the following receipt "Received of Daisy P. Jones ($ 30.00) Thirty Dollars for balance premium note. Roy Jackson. 1/8/1931." The check she had given Jackson for the twelve dollars and eighty-five cents had this notation on the bottom: "Payment on insurance policy." On the back of the check was this indorsement: "Roy Jackson. Pay First National Bank, Volunteer Branch, Interstate Life & Accident Co., Rhodes & Sloan, Mgrs. L. W. Rhodes. R. S. Sloan." Also on that day, on one of appellant's application forms for reinstatement of lapsed policies, Mrs. Jones made application for the reinstatement of her policy. In this application she answered the usual questions and signed it in the presence of Jackson. The last three...