Meyer v. The National Fire Insurance Company of Hartford, Conn., a Corp.
| Decision Date | 14 November 1936 |
| Docket Number | 6416 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. An agent has such authority as his principal confers upon him or which the principal intentionally or by want of ordinary care causes or allows a third person to believe the agent possesses; and such authority is as broad as the principal has permitted it to be or made it appear to be.
2. An agent having authority to collect a debt merely cannot bind the principal by any arrangement short of an actual collection and receipt of the money, and such authority does not imply power to do any act outside of the ordinary and necessary means for making the collection or receiving payment.
3. Where a third party believes in the existence of authority in the supposed agent, and such belief rests upon some act of the principal sought to be bound by the alleged authority and there has been such conduct on the part of the principal reasonably resulting in the belief in the mind of the third person that the agent has the authority to do what he does then the principal is estopped to deny this authority.
4. In such case, the fact that the principal may be ignorant as to the exercise of this authority and its extent does not affect the one dealing with the agent.
5. Under the provisions of section 6518 of the Compiled Laws no policy of insurance is forfeited, even though it contains a provision that the policy shall be suspended for nonpayment of any note taken for the premium, unless the insurer shall not less than 30 days prior to the maturity of such premium mail to the assured a notice stating the date when the note becomes due, the amount due, the fact of suspension for nonpayment, and that the assured has a right to keep the policy in force or terminate by surrender; and where an agent has the ostensible authority to extend the time of the payment of such note, the fact that the insurer is ignorant of this extension does not relieve it from the effect of noncompliance with the statute.
6. This statute requiring the insurer to notify the insured of the effect of nonpayment of the premium note is a statute for the benefit of the insured, and where, at the request of the insured, the time of the payment of a note taken for a premium is extended for a period of less than 30 days so that the insurer cannot give the required 30 days' notice, the insured has waived the benefit of this statute.
7. Where an insurer denies all liability on the ground that the policy was not in force at the time loss was sustained, he is not permitted, on the trial, to interpose the defense that formal proof of loss was not given.
8. Where a contract for insurance provides that if the note given for the premium " be not paid at maturity, this policy shall be suspended, inoperative, and of no force or effect so long as such note, or any part thereof, remains overdue and unpaid," ordinarily the collection and retention of the proceeds of the premium note after a period of suspension will render the insurer liable for loss occurring during the period of suspension if known to the insurer prior to the collection, and the insurer will be considered to have waived the provision against liability. However, when in the policy the parties contract that payment of the note and retention of proceeds by the insurer made after the suspension shall not be construed to be a waiver of any condition in the policy and shall not render the insurer liable for any loss occurring during the suspension, then the insured cannot claim that the company waived the ordinary effect of the acceptance of the proceeds of the premium note.
9. Waiver is the voluntary and intentional relinquishment or abandonment of a known existing right, advantage, benefit, claim, or privilege which except for such waiver the party would have enjoyed; and as ordinarily the acceptance of the premium on a policy of insurance, after the occurrence of a loss and during a period of suspension of the liability of the insurer because of nonpayment when the insurer knows of the loss prior to the acceptance of the proceeds, results in an advantage to the insured so that he may claim the insurer has waived its right to claim nonliability because of suspension, the insured himself may waive such advantage which has accrued to him and may contract that acceptance and retention of the premium shall not constitute a waiver of suspension because of nonpayment nor render the insurer liable for loss during that period.
10. Where an insured contracts that payment of a premium note after the suspension of his policy shall not be considered to be a waiver of rights accruing to insurer because of such suspension, and it appears that during the period of suspension part of the insured property was destroyed by fire and thereafter notice of loss was given to the insurer and liability denied because of the suspension of the policy for nonpayment of the premium, and thereafter the insured paid the premium and reinstated the policy, the policy is revived as to the property not destroyed by fire, but the acceptance of the premium was not a waiver of the insurer's right to claim nonliability for the loss sustained during the period of suspension.
11. Where an application for a new trial alleges the trial court erred in failing to instruct properly as to agency as one of the grounds for new trial, and the trial court determines that its failure to instruct the jury that a certain third party was an admitted agent of the defendant but left it to the jury to determine whether he was an agent, resulted in a miscarriage of justice and had a tendency to confuse the jury on the real issue in the case and grants a new trial because thereof, the order granting a new trial will not be reversed.
Appeal from District Court, Grant County; Harvey J. Miller, Judge.
Action by Albert Meyer against the National Fire Insurance Company of Hartford, Connecticut. From an order granting plaintiff's motion for a new trial after a judgment for defendant, defendant appeals.
Affirmed.
Nilles, Oehlert & Nilles, for appellant.
The law places a duty upon the life insurance company of notifying the insured of the due date of his premium. Epiphany Roman Catholic Church v. German Ins. Co. 16 S.D. 17, 91 N.W. 332; Swayze v. Mutual L. Ins. Co. 32 F.2d 784; Mutual L. Ins. Co. v. Hill, 193 U.S. 551, 48 L. ed. 788, 24 S.Ct. 538.
The provisions of the statute should be strictly interpreted in favor of the assured and that the defense of forfeiture was available if there has been any substantial departure on its part from the provisions of the statute in regard to notice. N.Y.L. Ins. Co. v. Dingley, 93 F. 153.
Authority to collect interest and principal does not include by implication authority to extend time of payment or to limit use of collateral. Burnham v. Wilson, 207 Mass. 378, 93 N.E. 704; Murphy v. Barnard, 162 Mass. 72, 38 N.E. 29, 44 Am. St. Rep. 340; Hutchings v. Munger, 41 N.Y. 155; Lincoln v. Finkelstein, 255 Mass. 486, 152 N.E. 332.
Jacobsen & Murray, for respondent.
The order granting a new trial is within the trial court's discretion and may be reversed for an arbitrary abuse of such discretion. Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228.
Statutes requiring that notice be given to the assured of due date of the premium note must be strictly complied with in order to authorize a forfeiture of the policy. 26 C.J. 70, 271; Breakstone v. Appleton Mut. F. Ins. Co. 149 Wis. 303, 135 N.W. 853; Milwaukee Trust Co. v. Farmers M.F.I. Co. 115 Wis. 371, 91 N.W. 967; Schultz v. Des Moines Mut. Hail & Cyclone Ins. Asso. 35 S.D. 627, 153 N.W. 884; Chasse v. Bakers' Reserve Fund L. Ins. Co. 27 S.D. 70, 129 N.W. 568.
Where the authority of an admitted agent is in issue, his authority may be shown in a given case by the nature of the business or employment in which he is engaged. Lechler v. Montana L. Ins. Co. 186 N.W. 271; Bernard v. Madsen, 52 N.D. 822, 204 N.W. 196; Best v. Krey, 83 Minn. 32, 85 N.W. 823; Wheeler v. Benton, 67 Minn. 293, 69 N.W. 927; Winch v. Baldwin, 68 Iowa 764, 28 N.W. 62.
Nonpayment of a premium or assessment at maturity will not forfeit the policy if insured has made a bona fide attempt to pay or his default is due to acts or neglect of insurer or its agent. 26 C.J. 272.
Burr, J. Burke, Ch. J., and christianson, Morris and Nuessle, JJ., concur.
On July 30, 1932, the defendant, through one Rausch, insured property of the plaintiff against fire, as follows: the dwelling house, furniture, and furnishings for $ 800.00 and the outbuildings for $ 260.00, taking a note for the premium due October 1, 1932.
The contract for insurance provided:
That if this note
That "no officer, agent or other representative of this Company shall have power to waive any provision or condition of this Policy except such as by...
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