New York Life Ins. Co. v. Barton

• Decision Date: 11 June 1936
• Citation: 166 Va. 426
• Court: Virginia Supreme Court
• Parties: NEW YORK LIFE INSURANCE COMPANY, A CORPORATION v. ELSTON V. BARTON.

Page 426

166 Va. 426

NEW YORK LIFE INSURANCE COMPANY, A CORPORATION v. ELSTON V. BARTON.

Supreme Court of Virginia, Wytheville.

June 11, 1936.

Present, Holt, Hudgins, Gregory, Chinn and Eggleston, JJ.

1. RECORDS — Making Up — Correction — Purpose of Statute Requiring Reading in Open Court. — The purpose of section 5962 of the Code of 1930, requiring the proceedings of every court to be entered in the order book and read in open court, by the clerk thereof, at the next session of said court, is to provide for keeping the records of the proceedings of every court correctly, by making it the duty of the clerk to enter them in a book, and to read them in open court, so that any errors or omissions may be corrected.

2. NEW TRIALS — Motion to Set Aside Verdict after Entry of Judgment. — A motion to set aside a verdict after entry of judgment is a vain thing, for the verdict is merged in the judgment. A motion to set aside the judgment would be proper and would suspend it.

3. APPEAL AND ERROR — Limitations — Continuance for Hearing on Motion to Set Aside Verdict — Amendment of Record Showing Entry of Judgment Prior to Hearing on Motion — Case at Bar. — In the instant case an extract from the order book of the lower court, bearing date July 12, 1933, recited that the jury returned a verdict for plaintiff; that "it is therefore the judgment of the court that the plaintiff recover of and from the defendant the sum of $2,000," etc.; that defendant moved to set aside the verdict, and that the case was continued for a hearing on the motion. On November 16, 1934, the motion was denied and judgment entered for plaintiff, and thereafter defendant moved to amend the record by striking from the order book the paragraph of July 12, 1933, showing entry of judgment, on the ground that it was a clerical error. Plaintiff excepted to the order granting the prayer of this petition and moved to dismiss the writ of error because petition filed therefor on May 15, 1935, came too late.

Held: That the motion to dismiss was overruled. Neither the court nor the parties proceeded upon the theory that there had been any judgment as of July 12, 1933. The judgment entered in favor of plaintiff on November 16, 1934, was entered at her instance and she should not be heard to say that it amounted to nothing and that she had already been given a proper judgment sixteen months before.

4. LIFE INSURANCE — Premiums — Payment — Necessity for Prompt Payment. — Promptness of payment is essential in the business of life insurance. Forfeiture for non-payment is a necessary means of protecting the insurer from embarrassment. Delinquency can not be tolerated or redeemed except at the option of the company.

5. LIFE INSURANCE — Premiums — Payment — Waiver or Estoppel — Burden of Proof. — Although promptness in the payment of premiums on life insurance policies may at times be in some manner waived or some principle of estoppel may be invoked, if any of these principles are relied upon, their applicability must be established by the plaintiff.

6. INSURANCE — Insurance Agents — Powers — Strict or Liberal Construction. — The tendency of the courts is towards a liberal, rather than a strict construction of an insurance agent's power.

7. APPEAL AND ERROR — Exceptions and Objections — Instructions — Exception to Evidence on Same Point — Case at Bar. — In the instant case, an action on a life insurance policy, plaintiff contended that a forfeiture of the policy for non-payment of a premium had been waived by defendant's agent extending credit to assured in accordance with a custom of defendant. Plaintiff argued that since an instruction that the agent might extend credit to a policyholder if authorized by custom, was not excepted to, it became the law of the case.

Held: That evidence as to this custom had been excepted to and it was not necessary that error be twice committed to make it available.

8. LIFE INSURANCE — Forfeiture of Policy — Waiver — Sufficiency of Evidence — Case at Bar. — In the instant case, an action on a life insurance policy, defendant denied liability on the ground that a semi-annual premium due two months before assured died was not paid. Plaintiff contended that the forfeiture was waived because defendant's agent, between the due date of the premium and the expiration of the grace period, told assured that the company would take a lien note and charge the premium against the policy, which was in accordance with a custom of defendant company, and assured asked the agent to take care of it. The note was never executed and notices that the grace period had expired and the policy had lapsed were ignored by assured.

Held: That there was no proof of any custom upon which a recovery could be based, and not only was it necessary that the premium note be accepted, but a written agreement signed by defendant and assured agreeing to a change in the dates for payment of premiums thereafter was also necessary.

Error to a judgment of the Circuit Court of Arlington county. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

William D. Medley and R. Aubrey Bogley, for the plaintiff in error.

Emery N. Hosmer, for the defendant in error.

HOLT, J., delivered the opinion of the court.

On January 10, 1928, the New York Life Insurance Company issued to Charles F. Barton its policy for $1,000 with provisions for double indemnity in case of death from bacterial infection in consequence of accidental and external bodily injury. The named beneficiary, Elston V. Barton, wife of the insured, is plaintiff here.

From the policy it appears that there was a premium payment in advance of $10.41. Afterwards payments were to be made semi-annually in the sum of $20.41, beginning on April 4, 1928.

The semi-annual premium due on April 4, 1930, was not paid. On May 28, 1930, the insured was injured, and on June 4, 1930, he died as a result thereof. Payment of this insurance was demanded and refused. The company claimed that the policy for reasons stated had been forfeited. Mrs. Barton contended that there were good and sufficient reasons for this non-payment. Action by way of notice of motion was filed, there was an answer, and in due course the case came on to be heard and was heard on July 12, 1933, as appears from this extract of an order of that date:

"Thereupon the court instructed the jury and after hearing closing arguments of both sides, the jury retired to their room, in custody of the sheriff, and after a time returned into court with the following verdict:

"`We, the jury, find for the plaintiff the sum of $2,000, with interest from date of death until paid.

"`(Signed) WILLIAM M. BLUNDELL, Foreman.'

"It is therefore the judgment of the court that the plaintiff recover of and from the defendant the sum of $2,000, with interest thereon from the 4th day of June, 1930, and her costs in this behalf expended.

"Thereupon the defendant, through counsel, moved the court to set aside the verdict on the grounds that the verdict was contrary to law and evidence; and this case is continued for a hearing on the motion to some future date."

Nothing was done until November 16, 1934, when upon further argument this order was entered:

"This cause having come on again to be heard upon the motion of defendant by counsel to set aside the verdict of the jury upon the grounds that the verdict is contrary to the law and evidence, is without evidence to support it, and is against the weight of the evidence, and upon argument of counsel, the court having overruled said motion, to which action of the court, defendant, by counsel, duly excepted, it is by the court,

"Ordered, that judgment be entered, in accordance with the verdict of the jury, against the defendant for the sum of two thousand dollars ($2,000) with interest from July 4, 1930, and costs."

On November 30, 1934, the defendant, by counsel, moved to amend the record and in its motion said:

"Now comes the defendant, by counsel, and moves this honorable court to amend the record of court proceedings in the above entitled cause, recorded on to-wit, the 14th day of July, 1933, in Common Law Order Book No. 15, pages 361, 362, by ordering and directing the clerk of this court to strike out the paragraph reading as follows:

'IT IS THEREFORE the judgment of the court that the plaintiff recover of and from the defendant the sum of $2,000, with interest thereon from the 4th day of June 1930, and her costs in this behalf expended,' said paragraph appearing as part of the said record on page 362 of the Common Law Order Book as aforesaid, the reasons for said motion being as follows:

"1. That no judgment was entered by the court on the aforesaid 14th day of July, 1933, or at any time until November 16, 1934, as hereinafter set forth, but that when the jury returned a verdict against defendant, said defendant, by counsel, made a motion to set aside said verdict and the case was continued for a hearing on said motion, all of which appears as a part of the record of the above entitled cause.

"2. That the aforesaid paragraph showing entry of judgment against defendant as aforesaid appears as a part of said record solely because of a clerical error of the clerk of the court.

"3. That the aforesaid motion to set aside the verdict of the jury was heard on March 7, 1934, and decided on November 9, 1934, the court denying said motion and on November 16, 1934, the court entered an order entering judgment against defendant in accordance with the verdict of the jury, against the defendant for the sum of two thousand dollars ($2,000) with interest from June 4, 1930, and costs, said entry of judgment appearing as a part of the record in the above entitled cause in Common Law Order Book No. 16 at pages 233, 234."

On December 4, 1934, the prayer of this petition was by order granted. Plaintiff excepted. Motion is now made to dismiss this writ of error because petition filed therefor came too late....