Pub. Sav. Ins. Co. of America v. Manning

• Decision Date: 15 March 1916
• Docket Number: No. 8935.,8935.
• Parties: PUBLIC SAVINGS INS. CO. OF AMERICA v. MANNING.
• Court: Indiana Appellate Court

61 Ind.App. 239

111 N.E. 945

PUBLIC SAVINGS INS. CO. OF AMERICA

v.MANNING.

No. 8935.

Appellate Court of Indiana, Division No. 2.

March 15, 1916.

Appeal from Circuit Court, Rush County; John D. McGee, Judge.

Action by William E. Manning, as administrator of the estate of Maxie W. Manning, deceased, against the Public Savings Insurance Company of America. Judgment for the plaintiff, and defendant appeals. Affirmed.

Eugene C. Miller, of Indianapolis, and Benjamin F. Miller and Watson, Titsworth & Green, all of Rushville, for appellant. Will M. Sparks and A. L. Gary, both of Rushville, for appellee.

CALDWELL, J.

This appeal is from a judgment in the sum of $291.34, recovered by appellee on an industrial insurance policy issued on the life of his daughter. To discuss in detail the large number of questions presented is not required. The merits of the case may be determined with substantial accuracy from a consideration of the sufficiency of the evidence to sustain the verdict. The facts are as follows: May 22, 1911, appellant issued an industrial policy on the life of each of appellee's children. Only one of such policies is involved here. It was issued on the life of Maxie W. Manning, aged 12 years. By its terms appellant obligated itself, in effect, to pay as benefits on the decease of the insured the sum of $280, in consideration that there should be paid on each Monday the sum of 10 cents premium for the week then commencing, and subject to the conditions of the policy as printed thereon. These conditions were to the following effect: That the policy should be void if payments were not made as specified; that premiums were payable at the home office of the company, but might be made to any authorized representative; if the insured should die while premiums were in arrears not exceeding four weeks, benefits would be paid; if the policy should lapse for the nonpayment of premiums, it might be renewed within one year from the date to which premiums had been paid, on payment of all arrears, provided evidence of the insurability of the insured satisfactory to the company should be furnished. The seventh condition is as follows:

“No condition, provision or privilege of this policy can be waived or modified in any case except by an indorsement hereon signed by the president, the vice president, the secretary or medical director. No agent has power in behalf of the company to make or modify this contract of insurance, to extend the time for paying the premium, to waive any forfeiture, or to bind the company by making any promise not contained herein.”

James Kratzer was appellant's agent for Rush county, and was located at Rushville. As such agent, he was authorized to solicit insurance, industrial and ordinary, and to collect and remit premiums. He solicited the insurance involved here, and collected the premiums. It is alleged in an answer that Samuel R. Sadler was a superintendent of the company, and that he was “an authorized representative of the company.” He testified as a witness that he was a superintendent, and that his duties were “to superintend the work in a general way,” and that the Rushville agency was under his superintendency.

Appellee made the weekly payments on all the policies up to and including payment of December 11th, for the week ending December 18, 1911. He then notified Kratzer that by reason of failing health and lack of employment he would be unable to continue. Kratzer, however, at his own suggestion agreed to continue the payments for appellee temporarily. Kratzer testified that under such arrangement he made the payments weekly from December 18th up to and including the payment of April 29th, for the week ending May 6, 1912, at which time appellant claims the policy lapsed. Later, Sadler called at the Manning house, the date being in controversy. He testified that the visit was made May 30th or 31st. Other witnesses fixed the date as June 8th. Sadler testified that he informed Mrs. Manning that the policy involved here was within the four-week period of grace, and that a payment the following Saturday would keep it in force. A witness who was present testified that Sadler said, on the subject of whether the policy had lapsed: “You are not out at all; you are in, and go ahead and pay and you are all right.” Mrs. Manning testified that Sadler said, “You are not out of it; I am the superintendent, and I know;” that it would be all right if they paid; that he did not specify when they should pay, or the amount; that he simply said for them to see him Saturday night, or that they could see Kratzer the next week. Appellee testified that he met Kratzer on the street Tuesday of the next week, being June 11th, and informed him that he had employment and that he could resume his payments; that Kratzer called on him the next Monday morning, June 17th, and collected 40 cents, 10 cents on each policy, and entered the payments on a book which appellant had delivered to appellee for that purpose; that Kratzer said at the time that he had paid $10.40 for appellee, being 26 weekly payments on each policy. This statement was not contradicted by Kratzer as a witness. He testified that it was in the latter part of May that appellee notified him he would soon be able to resume the payments, and that on May 28th, a day or two later, he reported all the policies to the superintendent as lapsed; that a few days before June 17th appellee asked him to call Monday and he would commence paying; that he did call as requested on Monday, June 17th, and Manning paid him 40 cents, being 10 cents on each policy, which he credited in Manning's book; that, while nothing was said on the subject of renewing the policies or the necessity therefor, he did not send this money to the company as a weekly payment, but subsequently on his own motion, and after the death of the insured, he applied it in renewal of the other three policies. The insured was taken sick suddenly the evening of June 17th, and died the next morning. A day or two later Kratzer informed Manning that the policy had lapsed. Later, at Kratzer's suggestion, Manning signed revival applications on the other policies, the necessary payment being made by Kratzer, who, on his own motion, applied the 40-cent payment to that end.

[1] The arrangement by which Kratzer agreed temporarily to pay the premiums on the policies was not binding on appellant. That was a mere private agreement between appellee and Kratzer, whereby the latter became nothing more than appellee's agent. To the extent that Kratzer did in fact pay the premiums, they must be deemed paid. To the extent that he failed to pay, the default was appellee's through Kratzer as his agent. Bennett v. Sovereign Camp (Tex. Civ. App.) 168 S. W. 1023. If Kratzer made no payments on the policy after April 29th, six payments amounting to 60 cents were in arrears at the decease of the insured on the policy involved here, or $2.40 on the four policies. This sum appellee tendered before commencing this action, being the full amount that appellant claimed was in arrears. If Kratzer paid $10.40 on the policies, as appellee testified he stated in the transactionof June 17th, no payments were in arrears at the decease of the insured. Several days after the death of the insured, there was a meeting at which were present appellee, his attorney, Kratzer, and Sadler, and at which the status of the policy was discussed. Kratzer, as a witness, testified that at this meeting he stated that he had paid for appellee and forwarded to the company $10.40 on all the Manning policies. He further testified, however, in explanation of such statement, that he paid but $8 or $8.40 in discharge of premiums on the four policies issued May 22, 1911, and that the balance, including the 40 cents paid by appellee June 17th, was applied on revival expenses. His explanation is, however, not clear, and is somewhat self-contradictory.

[2] As we have indicated, Kratzer, in paying premiums for appellee, did so as his agent. In the transaction of June 17th, however, he was acting in the capacity of agent for appellant. In that capacity and within the scope of his authority he called to collect premiums. No other business was transacted. The subject of the conversation then had was the status of the policies, rather than the state of his account with appellee. Appellee was seeking information, not with a view to a settlement with Kratzer personally, but with a view to the payment then to be made on the policies. Appellee's testimony that Kratzer then said that he had paid $10.40 for 26 weeks was properly heard, and should be considered as substantive evidence. Snyder v. Frank, 53 Ind. App. 301, 309, 101 N. E. 684, and cases; Anvil Mining Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876, 38 L. Ed. 814;Scott v. Home Ins. Co., 53 Wis. 238, 10 N. W. 387. In such view of the case, there is evidence to sustain the verdict. That is, there is some evidence that payments were not in arrears at the decease of the insured. The answers to certain interrogatories returned with the general verdict indicate that the jury took that view of the case.

[3][4] But if such statement could be considered, not as an admission respecting the actual status of the policies, but merely as an inaccurate declaration of a nature likely to affect the conduct of appellee, then the case presents another view. From such viewpoint, it may be assumed that no payments were in fact made after April 29th. As we have said, it is alleged, in appellant's answer relating to Sadler's visit to appellee's home, that he was “an authorized agent of the company.” Thus, respecting the matter in hand, he was apparently clothed with power to act. He had full knowledge that no payment had been made on the policies since April 29th. Under such circumstance, he stated in substance that the policies had not lapsed, and urged that they be kept in force, and to that end directed appellee to...