Schmidt v. Charter Oak Life Ins. Co.

• Decision Date: 06 June 1876
• Parties: LOUISA SCHMIDT, Respondent, v. CHARTER OAK LIFE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 339

LOUISA SCHMIDT, Respondent,

v.CHARTER OAK LIFE INSURANCE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. A life policy stipulated that if the assured should, without written permission from the company, visit or reside south of the thirty-sixth degree of north latitude, between the 1st day of June and the 1st day of November, the policy would become void. Under a permit for sixty days, the assured went to a point south of the thirty-sixth degree, remained there two years, and died there. During this period the quarterly premiums were paid to the local agent at St. Louis, who received them with full knowledge of the facts. Held, that the policy was not forfeited, and the beneficiary could recover. (GANTT, P. J., dissenting.)

2. A local agent of an insurance company, empowered to take risks and receive premiums, has a general authority to dispense with conditions in policies issued through his agency, in the absence of any limitation upon such authority, known to the other party. (GANTT, P. J., dissenting.)

APPEAL from St. Louis Circuit Court.

Affirmed.

S. Knox, for appellant, cited: Story on Ag., secs. 239, 243; Billings v. Morrison, 7 Cal. 171; Pittsburg R. R. Co. v. Gazzom, 32 Pa. St. 340; Bliss on Ins. 420, sec. 261, p. 464, sec. 296; Evans v. United States Life Ins. Co., 10 N. Y. 587; Bartholomew v. Merchants' Fire Ins. Co., 25 Iowa, 507; Plahts v. Merchants & Manufacturers' Ins. Co., 38 Mo. 248; Wall v. Home Fire Ins. Co., 36 N. Y. 157.

Hitchcock, Lubke & Player, for respondent, cited: Bevin v. Connecticut Mutual Life Ins. Co., 23 Conn. 254; Geib v. Ins. Co., 1 Dill. 449; Viele v. Germania Ins. Co., 26 Iowa, 9; Ins. Co. v. Wilkinson, 13 Wall. 223, 233; Baubie v. Ætna Ins. Co., 2 Dill. 158, 159; Thompson v. St. Louis Mutual Life Ins. Co., 52 Mo. 473; Bliss on Ins., sec. 307; Crawshaw v. Sumner, 56 Mo. 517; Chisholm v. National Capitol Life Ins. Co., 52 Mo. 217.

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

Plaintiff sued upon a policy of insurance issued by defendant, upon the life of her husband, Louis Schmidt, since deceased, for the sum of $1,000, and obtained judgment in the Circuit Court, from which defendant appealed. The policy contained a stipulation declaring that, “in case the said Louis Schmidt shall, without the consent of this company previously obtained in writing, pass beyond the settled limits of the United States, * * * or shall, without such previous consent, visit those parts of the United States which lie south of the thirty-sixth degree of north latitude, between the 1st day of June and the 1st day of November, * * * then this policy shall be void, null, and of no effect.” The policy was dated June 10, 1864, and the premiums were to be paid annually from that date, or quarterly on the 10th days of September, December, March, and June.

It appeared, from the testimony, that, on September 5, 1871, Schmidt obtained from Godfrey & Brother, the St. Louis agents of defendant, a written permit to visit and reside in Shreveport, Louisiana, which is situated south of the thirty-sixth parallel, for the term of sixty days thereafter; that he thereupon took up his permanent abode in Shreveport, and died there, of yellow fever, on September 18, 1873. No written consent, other than that already mentioned, was ever given by defendant, or its agents, for Schmidt's residence in territory requiring such consent by the terms of the policy. The defendant resisted plaintiff's demand on account of the alleged forfeiture thus created.

The testimony further tended to show that all the premiums were regularly paid to the St. Louis agents, including that due on September 10, 1873; that the agent Block, to whom the last premiums were paid, was not authorized to give permits for changes of residence; but that he, and his predecessors, who were so authorized, had full knowlege, at all times, of Schmidt's residence in Shreveport, and received the premiums at each successive payment during the whole period, without objection or any claim of forfeiture.

Instructions--which need not to be here set out at length--were given or refused, by the Circuit Court, to the effect that the conduct of the agents, as above stated, if proved to the satisfaction of the jury, established a waiver, by defendant, of the condition requiring a written consent to Schmidt's continued change of residence. This proposition presents the ground upon which defendant here demands a reversal of the judgment.

The doctrine that either party to a written contract may waive, by parol, any of its conditions in his favor, is too well settled to need extended elucidation. In Williams v. The Bank of the United States, 2 Pet. 102, it is announced thus: “If a party to a contract, who is entitled to the benefit of a condition upon the performance of which his responsibility is to arise, dispenses with, or, by any act of his own, prevents the performance, the opposite party is excused from proving a strict compliance with the condition.” That such a dispensation or waiver may be effected by parol, and yet constitute no violation of the rule which excludes parol testimony to vary the terms of a written contract, is also established by the highest authority. 1 Greenl. on Ev., secs. 302, 304. Because the condition, in the case before us, requires that the consent be written, it does not follow that the waiver must also be in writing. The stipulation for the written form of consent is in itself a condition, and may, in like manner, be dispensed with by the party entitled to demand it. It remains to be inquired what acts, if any, appearing in the testimony, have amounted to such a waiver of the condition in question as may entitle the plaintiff to recover, notwithstanding its breach. For this purpose any circumstances will be sufficient which prove that the defendant, while Schmidt continued to reside beyond the prescribed territorial boundaries, treats the contract as subsisting nevertheless, and not forfeited. If the policy had ceased to exist as a binding contract, the defendant had no...