Miller v. Life Insurance Company

• Decision Date: 01 December 1870
• Citation: 79 U.S. 285,12 Wall. 285,20 L.Ed. 398
• Parties: MILLER v. LIFE INSURANCE COMPANY
• Court: U.S. Supreme Court

79 U.S. 285

20 L.Ed. 398

12 Wall. 285

MILLER v. LIFE INSURANCE COMPANY.

December Term, 1870

ERROR to the Circuit Court for the District of Maryland; the suit being one by Mrs. H. Miller against the Brooklyn Life Insurance Company to recover $5000, insured by her husband, Walter Miller, for her benefit, on his own life.

The evidence proved, or tended to prove, the following case: The insurance company—a stock company, not a mutual one—being desirous of taking risks in St. Louis,

appointed Dutcher & Fasset their general agents for that place, and gave to them, as they did to all their general agents, a printed book, showing to them their powers as agents, and containing the instructions under which the company meant that they should act. The book contained these passages:

INSTRUCTIONS TO AGENTS.

Agents must not deliver policies until the whole premiums are paid, as the same will stand charged to their accounts until the premiums are received, or the policies returned to the office.

POWERS OF AGENTS.

Agents are not authorized to make, alter, or discharge contracts, waive forfeitures, name an extra rate for special risks, or bind the company in any way; their duties being simply to obtain applications for insurance, to collect and transmit premiums, and, generally, to be the medium of communication between the policy-holder and the company.

Agents are not authorized to write the receipt of premium, or make any indorsement whatever on the policy. The president or secretary are alone authorized to sign receipts for premiums on the part of the company. When a receipt is delivered to a policy-holder by an agent, such agent must countersign the same as an evidence of payment to him.

The said Dutcher & Fasset being thus established as the recognized general agents of the company, Walter Miller, the husband, then of St. Louis, applied, in that place, June 19th, 1868, for a contract of insurance for his wife's benefit, to Dutcher & Fasset, general agents of the insurance company in the State of Missouri. The application, a printed form in part, was headed:

BROOKLYN LIFE INSURANCE COMPANY.

Statement required from persons proposing to effect assurance in this company, and which forms the basis of the contract.

It was stated in this paper that the assured wished to pay

partly by note and partly in cash. And at the close of it these words occur:

'It is agreed by the undersigned . . . that the policy of assurance hereby applied for shall not be binding upon this company until the amount of premium as stated therein shall have been received by said company, or some authorized agent thereof, during the lifetime of the party therein assured.'

At the time of the application, the deceased having ascertained from Dutcher what was the amount of the cash portion of the premium, and what the portion to be embraced in notes, said to him:

'Send the policy to me, with the notes, and call on Solomon Scott for the cash part. He has just promised me that he will pay it.'

This Scott had been a partner in business and was a particular friend of Miller's.

The application was forwarded by the agents to the home office in New York, and in the course of a week the policy was received by Dutcher & Fasset. Miller in the meantime had gone to Maryland.

The policy, dated June 21st, 1868, and the premium notes for him to sign, were mailed to him, in a note dated July 2d, 1868, in which the agents said:

'You will find inclosed the yearly note and the six months' note, both of which you will please to sign and return us by mail. The cash payment we will get of Scott when the time arrives.'

It was stated in the policy that it was made——

'In consideration of the representations and agreement contained in the application therefor, and of the sum of $254.85 to them in hand paid, and of the annual premium of $254.85, to be paid on or before the 21st of June in each year during the continuance of this policy.'

And it was provided in it, among other things, that in case the assured

'Should not pay or cause to be paid the premium as aforesaid,

on or before the day herein mentioned for the payment thereof, or any note or notes which may be given to and received by said company in part payment of any premium, &c. . . . then this policy shall cease, and be null, void, and of no effect.'

On the margin of the policy were these words:

'Agents are not authorized or permitted to waive, alter, or change any of the provisions of this policy.'

Miller signed the notes sent to him in the letter of Dutcher & Fasset, and returned them, but said nothing about the cash premium. In their letter to Miller, inclosing the policy, Dutcher & Fasset sent a receipt in this form, partly printed, and apparently as to that part a form with which the insurance company furnished all their agents:

RECEIPT.

BROOKLYN LIFE INSURANCE COMPANY,

141 Broadway, New York.

Walter Miller--June 21st, 1868--Policy No. 4447--Life--Amount of $5000--Amount of Premium, $254.85.

NOTE. CASH.

One-third loan note, $101 94 Two-thirds cash, $76 46

Cash note, 76 45 Interest on loan note, 7 13

------- " " cash note, 2 67

$178 39 ------

Total cash, $86 26

Received payment,

DUTCHER & FASSET,

Agents.

July 1st, 1868.

N. B. Agents MUST NOT DELIVER policies until premium is received, as no policy is IN FORCE until PAID for.

Dutcher & Fasset, as the evidence went strongly to show, frequently gave credit for the cash payment in the case of persons whom they knew would pay when called on, and in this case they sent the receipt, because, as one of them testified, they had 'confidence that they could get the money at any time they called for it.'

As it turned out, however, Dutcher & Fasset did not get the money payment from Scott, although it was a fact that

Scott had promised to pay it, and there was no allegation anywhere of fraud.

The following correspondence now took place.

[Dutcher & Fasset to Miller.]

ST. LOUIS, July 23d, 1868.

WALTER MILLER, ESQ.,

Reese's Corner, Maryland.

DEAR SIR: The last of the month we make our report according to custom, and last evening, going home, I (the writer) called in the store and found our friend Scott intending to start East on Monday. I suggested to him that he should pay your cash part of premium as you suggested to me, but he would not listen to it at all; so we depend on you for it, the amount being $86.26, made up as follows:

One-half of cash premium,.......... $76 46

Interest on annual note,............. 7 13

" " six months' note,......... 2 67

------

$86 26

For which amount please send me check on New York.

Truly yours,

DUTCHER & FASSET.

[Miller to Dutcher & Fasset.]

REESE'S CORNER, MARYLAND, August 3d, 1868.

MESSRS. DUTCHER & FASSET,

St. Louis.

GENTLEMEN: In reply to yours of the 23d, I regret that Mr. Scott did not do as he promised you. I did not solicit or ask him to pay the note. He told you that he would pay you the note. Had he not told you I should have provided for the amount long since. I have about sixty dollars on hand. Will get the $86.26 and send to Baltimore and purchase a draft on New York, and have it sent in a day or two.

Hoping that all things will be all right in a few days, I am,

Yours truly,

W. MILLER.

[Same to Same.]

REESE'S CORNER, MARYLAND, August 18th, 1868.

MESSRS. DUTCHER & FASSET,

St. Louis.

DEAR GENTS: I shall ship some wheat to-morrow to Messrs. Cox & Brown, Baltimore, and will direct them to send you a draft on New York for $86.26. I regret the delay, and hope it may never occur again. Shall be in St. Louis this fall. Will make arrangements to have all my notes paid at maturity.

Yours truly,

W. MILLER.

The draft, however, not coming, Dutcher & Fasset wrote again thus:

ST. LOUIS, September 10th, 1868.

W. MILLER, ESQ.,

Reese's Corner, Maryland.

DEAR SIR: Your several letters have been received; the last, under date of August 18th, in which you remark, 'I shall ship wheat to-morrow to Messrs. Cox & Brown, Baltimore, and will instruct them to send you a draft on New York for $86.26.'

The draft has never been sent, or it has never come to hand. Now, sir, we are fearful you will lose your policy if payment is not made soon. Give it your attention at once, if you please; and as it has been running so long, you will have to add the interest, which will be $1.34, making the amount to be remitted $87.60.

Truly yours,

DUTCHER & FASSET, Agents.

And hearing that he was 'quite sick,' wrote thus:

ST. LOUIS, October 14th, 1868.

WALTER MILLER, ESQ.,

Reese's Corner, Maryland.

DEAR SIR: We learn from Mr. Scott that you are quite sick. As you have not paid your cash payment on your life policy in the Brooklyn, you must be aware that the policy is forfeited, and we now inclose you two notes for part payment of the premium. It has now been standing for four months beyond the time of payment.

You will please return the policy to us. The writer regrets very much to hear of your illness, and hope you may speedily recover.

Truly yours,

DUTCHER & FASSET, General Agents.

Miller died before this last letter reached him, and the company refusing to pay, solely upon the ground that the policy had never been in force by reason of the non-payment of the premium, the widow brought this suit, as already said, in the court below, on the policy. By consent of parties the case was tried by the court without the intervention of a jury; this sort of trial being in virtue of the 4th section of an act of Congress of March 3d, 1865, which after enacting that issues of fact in civil cases may be determined by the court without a jury, whenever the parties file a stipulation in writing, &c., proceeds thus:

'The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of the jury. The rulings of the court in the progress of the trial, when excepted to at the time, may be reviewed by the...