New York Life Insurance Co. v. O'Dom

Decision Date06 November 1911
Docket Number15190
Citation100 Miss. 219,56 So. 379
CourtMississippi Supreme Court

October, 1911

APPEAL from the circuit court of Lauderdale county. HON. JNO. L BUCKLEY, Judge.

Suit by Mrs. Mary E. O'Dom against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Longino & Ricketts, for appellant.

It is beyond question that the law makes no distinction, as to their interpretation, construction and enforcement between insurance contracts and any other contracts and we deem it wholly useless to cite this learned court to the long list of authorities upholding this general statement.

The policy sued on called for a premium of one hundred and seventy dollars, and eighty-five cents to be paid not later than February 18, 1910, and declared that unless it was paid within the specified time the said policy should by reason of the nonpayment of such premium become ipso facto void and terminated.

It was indisputably proved and it is now conceded that the amount of premium called for in the policy contract was not paid and that there was never any offer to pay same or any part of it within the required time. Hence, said policy of insurance of necessity expired with the 18th day of February, 1910, unless the appellant, or some one acting with full authority to bind it in the premises, waived the payment of the required amount within the time stipulated in the policy.

But the appellee does not contend that any such waiver was made directly by the insurance company. She insists only that Wilson, an employee in the appellant's branch office at Jackson, Mississippi, agreed with a son of the insured in the course of hurried conversation by long distance telephone on the evening of the 18th, the last day of grace, that he would accept a quarterly premium payment in lieu of the whole premium required, and that, also, he agreed to extend the time in which the amount so agreed upon could be paid until the 21st day of February, 1910, that being several days after the due date fixed by the policy had passed.

In order then to hold the appellant liable in this case on any agreement or promise which the cashier, Wilson, may have made touching the matters mentioned, the plaintiff must have shown, First: That the said Wilson was an agent who had authority to act for the appellant in making the alleged agreements, or second, that the appellant after full knowledge of his, Wilson's, acts, ratified the same, or third, that the appellant in its course of dealing with the insured, the same being known to Mabry O'Dom, or by its general course of dealing known to the said Mabry O'Dom at the time, misled him, Mabry O'Dom, into the belief that the terms of the policy as to the payment of the premium could be waived by such an agent as Wilson and that the appellant would accept and ratify the acts of said Wilson in the matter, and that the insured, knowing of such agreement acted thereon in making the payment as to the time and amount alleged by the appellee to have been provided for under the terms of the agreement between Wilson and Mabry O'Dom.

We submit that:

On the first of the foregoing proposition there is not a syllable of proof in the record even tending to show that Wilson, the cashier, had primarily, or under the terms of the policy, or within the delegated scope of his authority, any right to make for the appellant such agreement as that contended for by the appellee. The requirements of the policy contract itself are explicit, its procedure direct and the restriction put upon agents definite and positive, viz: "That no agent is authorized to waive forfeitures or to make, modify or discharge the contract or to extend the time of paying a premium." The quoted provision appears in plain type on the face of the policy of insurance itself and the substance of it is repeated in each one of the four or five premium notices sent to the insured. On the facts of this case the rule laid down in the case of Co-operative Association v McConnico, 53 Miss. 233, is conclusive and directly against the appellee so far as this proposition is concerned.

On this point, see, also, Everman v. Herndon, 71 Miss. 823 wherein it was held (p. 380) that, "Nothing is better settled than that one dealing with an agent expressly appointed to do a particular act, must inform himself of the extent of the authority conferred and must see to it that the act done is within the authority."

Under the terms of the policy the cashier could not even have collected the premium for the correct amount within the prescribed time unless he had been previously furnished with a receipt from the home office signed by some one of the executive officers of the company.

There was no ratification by the insurance company of Wilson's alleged agreement with Mabry O'Dom. On the contrary the record shows affirmatively that the company did not, and in the light of the proof could not, know anything about it until after the 18th of February when the policy had lapsed, and that upon the first information about the proposed change in the payments the company promptly repudiated the proposition and declared the policy forfeited, returning to Mabyr O'Dom the check sent in by him.

"Where agents without express authority assume to act for their principals the latter will be bound if, with knowledge of such assumptions, they acquiesce in and receive the benefits of such acts." Co-operative Association v. McConnico, 53 Miss. 233.

An agent with full authority may, under many circumstances waive the performance of conditions precedent; but where an unwarranted assumption of authority is shown, the unauthorized waiver by such agent, cannot bind a principal who never heard of or acquiesced in such waiver. Ib.

The acceptance of an overdue premium by an agent does not operate to waive a forfeiture of the policy on account of nonpayment when due, unless the company knew or could have known what he had done, and adopted or ratified his act, or by its conduct estopped itself to insist upon a forfeiture. Crook v. New-York Life Insurance Co., 112 Md. 268; see, also, Baltimore Life Ins. Co. v. Howard, 95 Md. 244.

Mabry O'Dom testified that he had never seen or heard of Wilson, the cashier, prior to their telephone conversation and that he had never had any dealings with the New-York Life Insurance Company except as to his own policy and the one in suit, and that he knew nothing as to their general course of business. He could not, therefore, have been misled by any similar conduct of Wilson or of the appellant in the past and involving any such points as those which came up in the present case.

Thus we submit that nothing developed in the proof on the trial of the case in the court below to supersede or take the consideration of the case outside of the plainly expressed stipulation of the policy. The contract of insurance therefore fixed the rights and duties of the parties to it and the court below should not have allowed said defined rights and duties of the parties to have been altered, modified, dispensed with or added to by the facts sought to be proved.

There is no better established rule of law than that it is the duty of the courts to construe written contracts; and that when such writings are not forbidden by law and are entered into deliberately by parties competent to contract, it is the duty of the courts to uphold them according to their expressed tenor and effect unless duly waived, which clearly was not done in this case.

We insist, therefore, that the learned judge in the court below erred in refusing to instruct the jury to find for the defendant, as per the first charge asked, rather than to allow the cause to go to the jury on the collateral and immaterial matter shown, which tended to mislead the jury and obscure the real issues involved.

It is not contended that Wilson was a general agent of the appellant with authority to act for it in any general way; his duties as proved were to do certain delegated and specified acts all of which were ministerial and largely clerical. It is therefore, not necessary to consider here what might have been the results in this case if he had been an agent possessing authority to act generally for the appellant.

The court will take notice that the policy carries what is designated and commonly known as term insurance, which according to common knowledge of insurance rules bears a lower premium rate than ordinary life or other high class insurance. We submit, therefore, for the consideration of the court that said policy has an unconditional requirement of a full annual premium in one payment, and not in several amounts, and that it is mandatory therein, with no provision made in the policy for any change in amount or manner of paying the premium--other than the one plainly stipulated. There is no option given in this particular policy to do otherwise than to pay the full annual premium at the time called for (see the policy), and if it be assumed that Wilson, the cashier, might, under a different form of policy, have changed the requirements from annual to quarterly payments, he could not have done so in this case--where no such option as to the payments was allowed with notice of all these facts.

We respectfully call the court's attention to the very recent case of Crook v. New-York Life Insurance Company, 112 Maryland 268. An examination of the statement of facts in the Maryland case shows that same questions were raised in that case that are raised by the facts in this case. The decision in the cited case sustains every contention which we here urge on behalf of the appellant.

"The cashier of the local agency of a life...

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