Lauze v. N.Y. Life Ins. Co.

• Citation: 74 N.H. 334,68 A. 31
• Parties: LAUZE v. NEW YORK LIFE INS. CO.
• Decision Date: 05 November 1907
• Court: Supreme Court of New Hampshire

68 A. 31

74 N.H. 334

LAUZE

v. NEW YORK LIFE INS. CO.

Supreme Court of New Hampshire. Hillsborough.

Nov. 5, 1907.

Transferred from Superior Court, Hillsborough County; Peaslee, J.

Action by Adelbert Lauze against the New York Life Insurance Company. Verdict for plaintiff, and defendant brings exceptions. Transferred from superior court. Exceptions sustained, verdict set aside, and judgment rendered for defendant.

The policy contained the following clauses: "This agreement is made in consideration of the sum of ten dollars and eighty-four cents, the receipt of which is hereby acknowledged, constituting payment for the period terminating on the twenty-eighth day of November, nineteen hundred and four, and in further consideration of the payment of a like sum on said date, and thereafter on the twenty-eighth day of February, May, August, and November in every year during the continuance of this policy, until premiums shall have been paid for twenty years in all from the date on which this policy takes effect. * * * (1) Only the president, a vice-president, a secretary, or the treasurer has power on behalf of the company to make or modify this or any contract of insurance or to extend the time for paying any premium, and the company shall not be bound by any promise or representation heretofore or hereafter made, unless made in writing by one of said officers. (2) Premiums must be paid at the home office, unless otherwise provided, and, in any case, in exchange for an official receipt signed by one of the above named officers and countersigned by the person to whom payment is made." The agent who solicited the insurance had authority to collect the first premium and deliver the policy. When the application was written, $5 was paid to him to be applied upon the first premium in case the policy was issued, and he gave the insured therefor an official receipt of the company taken from the application to which it was attached. Subsequently the policy was left at the plaintiff's house with his wife for examination, and at a later date it was delivered. Subject to the defendants' exception, testimony was introduced that at the time the policy was delivered the plaintiff paid the soliciting agent the balance of the first and second premiums, less $1.68, which the agent agreed to loan from his commission of $4.32. No such receipt as the policy mentions was given; but testimony was introduced, subject to exception, that the agent left a yellow paper, telling the plaintiff it was his receipt, The plaintiff and his wife were both French, and were unable to read, write, or speak English, and the plaintiff had not read, or caused to be read, the provisions of the policy, and did not, in fact, know what they were. The defendants' motion to direct a verdict in their favor, on the ground that there was no sufficient evidence of the payment of the second premium, was denied subject to exception.

Branch & Branch, for plaintiff. Burnham, Brown, Jones & Warren, for defendant.

CHASE, J. The exceptions raise the question whether payment of the second premium to the soliciting agent, without the production and delivery of the receipt described in the policy, constituted a valid payment thereof, and continued the policy in force during the three-month period to which it related, in which period it is understood the insured life expired. The policy acknowledges the receipt of $10.84, "constituting payment [of the premium] for the period terminating on the twenty-eighth day of November, nineteen hundred and four," which is understood to be the three-month period following the date of the policy. No question is made about this payment. The case states that the agent who solicited the insurance contract had authority to receive the payment and deliver the policy. This payment, accompanied with the delivery of the policy, completed the contract, and made it binding upon the parties. Thereupon the life of the person mentioned in it was insured for the period of three months, at least. The policy provided, in substance, that premiums of like sums should be paid quarter yearly during 20 years from the date when it took effect. The attempted payment of the second premium was consequently an effort to fulfill a stipulation of the contract three months or thereabouts before it was due. It was not the fulfillment of a stipulation that was to be performed simultaneously with, or previous to, the delivery of the contract. The policy further provided that "premiums must be paid at the home office, unless otherwise provided, and, in any case, in exchange for an official receipt" signed by the president, a vice president, a secretary, or the treasurer of the company, and countersigned by the party to whom payment is made. By virtue of this provision, possession of such a receipt by a person would ordinarily be evidence that the person was an agent of the company to receive the payment mentioned in it. Dunn v. Insurance Co., 69 N. H. 224, 39 Atl. 1075; Williams v. Insurance Co., 31 Iowa, 541; New York, etc., Co. v. Davis, 95 U. S. 425, 24 L. Ed. 453. It does not appear that the contract contained any other provision relating to the payment of premium. No receipt, such as the policy describes, was produced by the soliciting agent and given to the plaintiff when he paid the second premium. So far as appears, the agent did not represent to the plaintiff that the yellow paper which he gave the plaintiff was such a receipt. He simply told the plaintiff it was his receipt. The terms of the policy certainly did not justify the plaintiff in assuming that the agent had authority from the company to receive a premium that was not due for nearly or quite three months, to say nothing of a premium that was due at the time of...