Price v. North American Accident Ins. Co.

• Decision Date: 28 October 1915
• Citation: 28 Idaho 136,152 P. 805
• Parties: ANNA PRICE, Respondent, v. NORTH AMERICAN ACCIDENT INSURANCE COMPANY, Appellant
• Court: Idaho Supreme Court

152 P. 805

28 Idaho 136

ANNA PRICE, Respondent, v. NORTH AMERICAN ACCIDENT INSURANCE COMPANY, Appellant

Supreme Court of Idaho

October 28, 1915

INSURANCE POLICY-NONPAYMENT PREMIUM - FORFEITURE - WAIVER-AGENT'S ACCEPTANCE OF PREMIUM - ESTOPPEL - UNQUALIFIED REFUSAL TO PAY INDEMNITY-WAIVER OF PROOF OF LOSS.

1. Held, that in this case the court did not err in sustaining the objection to the admission of certain testimony offered by the appellant during the trial; or in refusing to sustain appellant's motion for nonsuit at the close of respondent's case; and that the evidence is sufficient to sustain the verdict and the judgment.

2. Where a contract of insurance provides that "The acceptance of any renewal premium shall be optional with the company, and if a past-due premium shall be accepted by the company or by a branch office of the company, or by any duly authorized agent of the company, such acceptance shall reinstate the policy in full as to disability resulting from accidental bodily injuries thereafter sustained"; and where the jury find that an agent, who is authorized to receive premiums, thus being endowed with authority to waive a forfeiture for nonpayment, accepts a premium, such acceptance constitutes a waiver by the company of the forfeiture. Whether the company had knowledge of the payment or not would be immaterial, providing the payment of the premium was actually made to its authorized agent.

[As to effect of limitations on agent's authority to waive conditions in insurance policy, see note in Ann.Cas. 1914A 590.]

3. Proof of loss is made for the sole benefit of the insurance company, which it may waive. Thus, upon receiving an unqualified refusal to pay, based upon a denial of liability on the part of the company, being equivalent to a waiver of proof of loss, a beneficiary would be justified in believing that the rendition of proof would be useless. And such beneficiary as plaintiff should not be required to go further than to establish an absolute denial of responsibility and an unqualified refusal to pay by the insurance company, in order to maintain an action upon the policy.

[As to necessity for proof of death, see note in 137 Am.St. 718.]

4. Held, that after an examination of the respective affidavits made by counsel for the appellant and respondent, in view of the weakness of the showing made by the appellant as to the reason for the attendance of the witnesses, and the strength of the counter-showing by the respondent, the court did not err in taxing costs in this action.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Action to recover on accident insurance policy. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

A. S Hardy, for Appellant.

Unless a payment of a defaulted premium is clearly shown to have been made and accepted, it would be insufficient to establish a waiver, as a waiver of a forfeiture including the payment of the past due premium must be clearly shown; and it also must be shown that the agent, whom it is claimed made the waiver, had the authority from the company to do so. It is incumbent upon the plaintiff to show both of these facts. (Franklin Life Ins. Co. v. McAfee, 28 Ky. L. 676, 90 S.W. 216; Moore v. Mutual etc. Life Assn., 133 Mich 526, 95 N.W. 573; Bryan v. National Life Ins. Assn., 21 R. I. 149, 42 A. 513; O'Connell v. Fidelity & Casualty Co. of New York, 87 A.D. 306, 84 N.Y.S. 315; Alabama etc. Assur. Co. v. Long Clothing etc. Co., 123 Ala. 667, 26 So. 655; Planters' Mut. Ins. Co. v. Loyd, 67 Ark. 584, 77 Am. St. 136, 56 S.W. 44; MacArthur v. United States Health etc. Ins. Co., 151 Ill.App. 507; Popovitz v. United States Health etc. Ins. Co., 78 Misc. 148, 137 N.Y.S. 788; Crosby v. Vermont Accident Ins. Co., 84 Vt. 510, 80 A. 817; Greenwaldt v. United States etc. Accident Ins. Co., 52 Misc. 353, 102 N.Y.S. 157; Security Life etc. Co. v. Underwood (Tex. Civ.), 150 S.W. 293; Merchants' & P. Ins. Co. v. Marsh, 34 Okla. 453, 125 P. 1100, 42 L. R. A., N. S., 996.)

The burden of showing that the costs claimed are correct is on the party claiming them. (Griffith v. Montandon, 4 Idaho 75, 35 P. 704; Bechtel v. Evans, 10 Idaho 147, 77 P. 212.)

Allowing fees to the husband would in effect be allowing fees to a party to the action. (Hereford v. O'Connor (Ariz.), 52 P. 471.)

M. R. Hattabaugh and B. Auger, for Respondent.

After notice to the appellant of the loss and its denial of liability, further offer of proof would be in vain. (Boyd v. Cedar Rapids Ins. Co., 70 Iowa 325, 30 N.W. 585; Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149, 4 A. 8; Campbell v. American Fire Ins. Co., 73 Wis. 100, 40 N.W. 661; Firemen's Ins. Co. v. Floss, 67 Md. 403, 1 Am. St. 398, 10 A. 139.)

It was the duty of the respondent to be fully prepared to meet all the questions raised by the appellant's separate defenses in its answer, and respondent should not be put to the expense of calling witnesses and then shorn of her right to reimbursement when the appellant without notice abandoned defenses set up to apprise the respondent of the issues in the case. (Bechtel v. Evans, 10 Idaho 147, 77 P. 212.)

The witness fees of the husband and children of the respondent were properly allowed and taxed. (Anderson v. Ferguson-Bach Sheep Co., 12 Idaho 418, 86 P. 41, 10 Ann. Cas. 395; Griffith v. Montandon, 4 Idaho 75, 35 P. 704.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an action commenced by the respondent Anna Price, beneficiary, as plaintiff, against the appellant North American Accident Insurance Company as defendant, to recover $ 700, for the accidental death of her son Forest Price, which occurred June 9, 1913. The recovery is sought under the terms of an accident insurance policy written by the appellant company insuring the said Forest Price.

The case was tried on September 18, 1914, resulting in a verdict for the plaintiff; upon which verdict judgment was duly entered. This is an appeal from the judgment and from the order of the court taxing costs.

The appellant relies for reversal upon seven assignments of error. The first is that the court erred in refusing to sustain the motion of defendant for a nonsuit made at the close of plaintiff's case; and the next four, in the exclusion of testimony. We have examined each of these assignments of error and find no merit in them. The sixth specification is that there is no evidence to sustain the verdict and judgment of the court, and that they are against the evidence.

The policy of insurance upon which this action is based was issued upon the application of the insured, on April 22, 1913. The application was taken by the agent of the appellant company in the regular course of business, and the policy was found among the effects of the insured shortly after his death.

Upon the trial, the application for the policy, the policy, a notice containing the names and addresses of the agent and the insured and the number of the policy, and providing: "First Premium of $ 3.00 must be paid on or before June 1st, 1913. And thereafter on or before the 1st of each succeeding month to the above-named Collector, or to A. E. Forrest, Secy. , 217 La Salle Street, Chicago, Ills.," the following receipt:

"$ 3. Lewiston, Idaho, June 6-1913.

"Received from Forrest Price $ 3.00 (Three Dollars) for policy initial payment in North American Accident Co.

"GUY CHIESMAN,

"Agt."

And a letter, exhibit "D," from the appellant company, refusing payment on the policy for the reason that, according to the records of said company, it expired for nonpayment of premium June 1, 1913, were all introduced in evidence by the plaintiff in support of the allegations of the complaint, together with proof of the death of the insured.

This policy contains, among other things, the following conditions:

"The acceptance of any renewal premium shall be optional with the company, and if a past-due premium shall be accepted by the company or by a branch office of the company, or by any duly authorized agent of the company, such acceptance shall reinstate the policy in full as to disability resulting from accidental bodily injuries thereafter sustained. . . .

"This policy, provided the policy fee has been paid to the company or its duly authorized agent, shall take effect at noon, standard time of the place of residence of insured, of the date hereof, and shall continue in force only so long as the premiums required hereon are paid on or before noon, standard time of the place of residence of the insured, of the first day of each month in advance, without notice to the company at its home office in Chicago, Illinois, or to the person designated in writing by the company to receive them. . . ."

The defendant called as a witness Guy Chiesman, the agent of the appellant company, who wrote the application and the policy and who testified, substantially, that the insured approached him while he was at Grangeville, and that he had some talk about a previous policy which insured claimed to have had in the appellant company written by an agent named King, to whom he paid the initial fee or payment, usually denominated policy fee, of $ 5, for which he claimed to have a receipt; that after some talk, the insured agreed to take another policy in the company, and it was understood that under the rules of the company he would have to make the initial payment of $ 5, only in case he had never been previously insured, and if he had been previously insured that the initial payment would be only $ 3; that it was understood that Chiesman should write the policy and that Price was to look up this old receipt and in case he found it he was to pay Chiesman...