Lallt v. Prudential Ins. Co. of Am.

• Decision Date: 02 February 1909
• Citation: 72 A. 208,75 N.H. 188
• Parties: LALLT v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New Hampshire Supreme Court

72 A. 208

75 N.H. 188

LALLT

v. PRUDENTIAL INS. CO. OF AMERICA.

Supreme Court of New Hampshire. Hillsborough.

Feb. 2, 1909.

Transferred from Superior Court, Hillsborough County; Chamberlain, Judge.

Action by Annie Lally, administratrix, against the Prudential Insurance Company of America. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions overruled.

The policy contained a provision that failure to pay the weekly premiums when due should work a forfeiture. The insured died March 2, 1907. The last payment entered on her book was made October 29, 1906, and paid the premiums to December 24, 1906. On seven occasions during the previous year, the defendant had received without objection payments that were from four to ten weeks overdue. February 20, 1907, the plaintiff, at the request of the insured, called at the defendant's office, and paid $3.50. The person who received the money said he would give her a receipt, and come down the next day and enter the amount on the book of the insured. The receipt contained the following clause: "This temporary receipt is given upon the condition that under no circumstances will the company be liable under said policy in case of death or otherwise, unless said policy was in force according to its terms when the above payment was made." The insured was in fact very ill at the time. The plaintiff did not read the receipt, and the agent did not come to the house until after the decease of the insured, when the sum paid by the plaintiff was tendered back and refused. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was denied, subject to exception. The defendant then called its collector, who testified that, when the insured was about six or seven weeks in arrears, he told her the policy would be lapsed if she did not pay up her arrears, and that she then refused to pay. Shortly thereafter the policy was lapsed on the defendant's books, but no notice of this action was given to the insured or to the plaintiff. At the close of all the evidence, the defendant's motion that a verdict be directed in its favor was denied, subject to exception.

James A. Broderick, for plaintiff. Branch & Branch, for defendant.

PEASLEE, J. The evidence produced by the plaintiff was sufficient to authorize a finding that the defendant had led the insured to believe that payment of her weekly premiums at the time stipulated for in the policy would not be insisted on. It had in effect said to her: "You need not pay on the day named. The payments will be received if made when 10 weeks overdue." Having made this representation, it could not complain of her acting upon it, unless it had retracted the statement, and given her reasonable opportunity to act before the retroaction was to be effective. Appleton v. Insurance Co., 59 N. H. 541, 546, 47 Am. Rep. 220.

It is conceded that such is the law of this state; but it is urged that, as the insured was in good health when the overdue payments were received and critically ill when the tender in question was made, the circumstances were so changed that the former waiver did not apply. This argument is based upon an erroneous view of the nature of the transaction. If the question was one of reinstating a lapsed policy, there would be force in the argument; but that is not the case presented here. As the case was tried and the verdict found the policy was always in force. The question was solely one of the time for paying an existing...