Kash v. Sun Life Assurance Co., of Canada
| Citation | 140 Pa.Super. 478,14 A.2d 214 |
| Decision Date | 26 June 1940 |
| Docket Number | 259-1940 |
| Parties | Kash, Appellant, v. Sun Life Assurance Company of Canada |
| Court | Superior Court of Pennsylvania |
Argued April 16, 1940.
Appeal from judgment of C. P. Washington Co., Nov. T., 1938, No 201, in case of Afanasy Kash v. Sun Life Assurance Company of Canada.
Assumpsit. Before Gibson, J.
The facts are stated in the opinion of the Superior Court.
Compulsory nonsuit entered. Motion to take it off refused. Plaintiff appealed.
Error assigned, among others, was refusal to take off nonsuit.
Judgment affirmed.
Paul N Barna, for appellant.
William H. Eckert, with him Richard G. Miller, of Miller & Schmidt and Smith, Buchanan & Ingersoll, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.
This appeal is from the refusal of the court below to strike off a non-suit entered in an action of assumpsit brought to recover premiums, with interest, which the plaintiff paid on two life insurance policies issued by the defendant on May 10, 1935. One for $ 6,000 provided for the payment of an annual premium of $ 407.70 for twenty years, and the other for $ 4,000 contained the same terms as the first, with the exception that the annual premium was $ 271.80. Both included a grace period of one month for the payment of premiums.
The appellant paid the premiums for the first two years, but failed to meet the payments due on May 10, 1937. Sometime before May 10, he received from defendant notice that the premiums were payable on that date and that the dividends due on the policies amounted to $ 63. Under the terms of the policies the plaintiff had the option of applying the dividends in the reduction of the premiums for the ensuing year, but there is no stipulation therein that a partial payment of a premium will keep the policy alive for the fractional part of a year that the payment bears to the annual premium.
Plaintiff claims that his son and agent had instructed Wilkinson, in charge of defendant's branch office at Pittsburgh, to apply accrued dividends on premiums and thereby extend the policies after July 10, for a period which would be covered by that sum. Wilkinson was not an executive officer, and if he did consent thereto, he was without authority. The power of a local agent is not presumed to extend beyond the soliciting of insurance and the collecting of premiums and the business necessarily incident thereto. He does not have the authority to waive or alter any of the provisions of the contract to which the parties agreed: Murphy v. Prudential Insurance Company, 30 Pa.Super. 560; Pyrich v. Scranton Life Ins. Co., 94 Pa.Super. 159; Geha v. Baltimore Life Ins. Co., 110 Pa.Super. 236, 168 A. 525; Peters et al. v. Colonial Life Ins. Co. of America, 128 Pa.Super. 21, 193 A. 460. Moreover, each of the policies contained a provision that no person except an executive officer has the power to modify the contract or waive a lapse or forfeiture of any of the company's rights or requirements.
The plaintiff made no payment on account of the premiums due until June 10, 1937, when he paid $ 100, $ 55 of which was to apply on account of the premium due on the first policy and $ 45 on the premium of the second. On the same day he executed and delivered to the defendant a promissory note to its order, payable thirty days after date, to wit, July 10, in the sum of $ 556.25, the balance of the premiums due May 10, 1937. It contained the following clause: "I hereby agree that if the sum payable under this agreement be not paid when due the policy shall be null and void and the assurance thereunder shall immediately cease unless the policy be continued in force under the Automatic Privilege."
The automatic privilege referred to is only applicable if there is a default in payment of premiums "after three full years' premiums shall have been paid." Admittedly, they were not paid for that period in either policy involved in this case.
Three days after the execution of this promissory note the plaintiff sent the defendant the additional sum of $ 13.25, which was applied to the first policy, so that on that date $ 113.25, only 1/6 of $ 679.50, the total premiums due on both policies, had been paid.
The insured having failed to pay his note, the defendant on August 9, 1937, notified him that his policies had lapsed and asked whether he desired to revive them before it sent him the amount of the accrued dividends. In the meantime no application of the dividends, in fact, had been made. We may state here that before this suit was brought the defendant notified the plaintiff that it held the note in evidence of non-payment of premiums.
On August 18, 1937, the defendant advised the plaintiff by letter that it would be better for him to change the premium paying basis to half yearly, stating: There was enclosed therewith a form for him to sign, changing payments of premiums to a semiannual basis.
The signed application for reinstatement states: "I agree that said policy shall not be...
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Bush v. Prudential Ins. Co. of America, 8555.
...These provisions therefore are binding upon the plaintiff as they were binding upon her husband. Cf. Kash v. Sun Life Assur. Co. of Canada, 140 Pa.Super. 478, 14 A.2d 214. It follows that the grace period began to run on April 14, 1931 and expired 31 days later, or 26 days prior to Bush's T......