Reed v. Vt. Acc. Ins. Co.

• Decision Date: 07 November 1939
• Docket Number: No. 1048.,1048.
• Citation: 9 A.2d 111
• Parties: REED v. VERMONT ACC. INS. CO.
• Court: Vermont Supreme Court

9 A.2d 111

REED

v. VERMONT ACC. INS. CO.

No. 1048.

Supreme Court of Vermont. Rutland.

Nov. 7, 1939.

Exceptions from Rutland Municipal Court; Christopher A. Webber, Municipal Judge.

Action by Jessie Reed against the Vermont Accident Insurance Company on a policy of accident insurance issued by defendant. Judgment for plaintiff, and defendant brings exceptions.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Lawrence & O'Brien, of Rutland, for plaintiff.

Stafford, Abatiell & Stafford, of Rutland, for defendant.

MOULTON, Chief Justice.

The plaintiff is the beneficiary named in a policy of accident insurance, issued by the defendant company to Worth E. Reed, under the terms of which a certain sum of money was payable to her in the event of the death of the insured.

Trial was had without a jury, and a finding of facts was filed by the trial judge by which we are informed that the policy was issued on December 16, 1937, but lapsed for non-payment of premium on April 1, 1938; that on or about June 23, 1938, the defendant's agent wrote to Reed, informing him that the payment of $1.60 would cause the policy to be in force from that day until August 1, and directing him to send his receipt card which the agent would return to him; that on June 27 Reed mailed his receipt card and a money order for $1.60 to the agent; that at about 1 :15 A. M. on June 28 Reed was injured in an automobile accident, from the result of which he died on July 6; that the letter enclosing the receipt card and the money order was not received by the agent until 9 A. M. on June 28; and that "It is my conclusion on the above findings that the deposit in the mail of the letter enclosing the premium, which was done on June 27th, was an acceptance by the company through its authorized agent of the premium. That therefore the insured was covered at the time of the accident above mentioned." Judgment was for the plaintiff, and the defendant excepted.

The only exception briefed is that it was error to render judgment for the plaintiff on the findings of fact; so the issue is whether the findings are such as to warrant the judgment, and we are not concerned with the question whether the findings have evidentiary support. Mott v. Bourgeois, 109 Vt. 514, 521, 1 A.2d 704; Babcock v. Carter, 102 Vt. 137, 138, 146 A. 250; Crosby's Adm'rs v. Naatz, 98 Vt. 226, 229, 126 A. 547. Therefore the defendant's claim that certain provisions in the policy prohibit its reinstatement for the period mentioned in the agent's letter, and forbid a waiver of its terms by the agent cannot be considered, since the policy is not recited in, or made a part of, the findings. For the same reason the numerous references to the transcript and exhibits, made by the defendant in its brief, in support of its contentions, must be disregarded. Neither the transcript nor the exhibits are before us.

We must, moreover, construe the findings so as to support the judgment, if it can reasonably be done. Gardner v. Gauthier, 101 Vt. 147, 149, 141 A. 682; Reed v. Hendee, 100 Vt. 351, 354, 137 A. 329. Where the evidence is not before us, we cannot assume that the findings are without its support. Vermont Marble Co. v. Eastman, 91 Vt. 425, 456, 101 A. 151.

It is the general rule that the payment of an insurance premium is not effected until actual receipt by the company; but where the insurer or its authorized agent so requests or directs the deposit of the premium in the mail is sufficient to complete the contract. Bailey v. Sovereign Camp, W. O. W., 116 Tex. 160, 286 S.W. 456, 47 A.L.R. 876, 881, and cases cited in annotation, 47 A.L.R. 886 et seq.

Thus, in Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 398, 400, 13 L.Ed. 187, 191, the defendant's agent wrote to the plaintiff: "Should you desire to effect the insurance, send me your check payable to my order for $57, and the business is concluded." In accordance therewith the plaintiff mailed his check to the agent, but before it was received the loss occurred and the defendant refused to issue the policy. In a proceeding in equity to compel the payment of the loss, the court held that "an offer under the circumstances stated, prescribing the terms of insurance, is intended, and is to be deemed, a valid undertaking on the part of the company, that they will be bound, according to the terms tendered, if an answer is transmitted in due course of mail, accepting them; and that it cannot be withdrawn, unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been transmitted. * * * On the acceptance of the terms proposed, transmitted by due course of mail to the company, the minds of both parties have met on the subject, in the mode contemplated at the...