Bryant v. Continental Life Insurance

192 S.E. 581, 168 Va. 585, 1937 Va. LEXIS 256
CourtSupreme Court of Virginia
DecidedJune 10, 1937
StatusPublished
Cited by1 cases

This text of 192 S.E. 581 (Bryant v. Continental Life Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. Continental Life Insurance, 192 S.E. 581, 168 Va. 585, 1937 Va. LEXIS 256 (Va. 1937).

Opinion

Browning, J.,

delivered the opinion of the court.

[588]*588Mrs. Sue Bryant Woodward was the beneficiary in a life insurance policy, issued by the Continental Life Insurance Co., Inc., on June 8, 1925, on the life of her father, Solon L. Bryant. She was also the beneficiary, by transfer, in four policies issued by the same company on the lives of four different persons, one dated January 30, 1922, and the others dated in 1931. She was also the beneficiary in three policies issued by the same company, on the lives of different persons, one dated in 1929, and the others in 1930 and 1931, respectively. In the three last-mentioned policies her designated relation to the insured is that of “friend.” The significance of these facts will presently appear.

The premiums of all of these policies were to be paid weekly, on or before each Monday, and the aggregate weekly sum was alleged to be $4.32, which was paid up to March 18, 1935. No other premium payments were thereafter made until more than four weeks had elapsed from the date on which the next premiums were due, which was March 25, 1935. This, according to the terms of the policies, rendered them void.

The following are provisions of the policy which are important:

“Payment of Premium—Each premium is due and payable at the Executive Office of the Company, but will be accepted elsewhere by a duly authorized agent, who shall at the time of payment enter same in the Receipt Book belonging to this Policy. If for any reason the agent shall not call for the premium when due, it shall be the duty of the policyholder to bring or send said premium to the Executive Office, or to the Company’s agent, and in event of a failure to perform this duty within four weeks from the date on which said premium was due this Policy shall thereupon become void.

“Alterations and Waivers—Agents (which term includes Superintendents and Assistant Superintendents) are not authorized to make, alter or discharge contracts or waive forfeitures. They have no power, on behalf of the Company, to receive a premium more than four weeks after the day on [589]*589which the same is due, nor receipt for same in the Premium Receipt Book, and any payment of such premium to an agent, or to the Company at its Executive Office, shall not be entitled by virtue of the contract to be credited upon the Policy, whether entered in the Receipt Book or not, and shall be returned upon demand. Any erasure or alteration made herein except by endorsement signed by the President or Secretary, shall be void.”

The policies, including the one which is the subject of this suit, were formally declared lapsed on Saturday, the 20th of April, 1935, for non-payment of premiums. On the following Tuesday a check for one week’s premiums was tendered to the company’s agent, at its office, in the city of Suffolk. This was done through Mr. Howell, formerly a collector of premiums for the company, but in this instance acting for Mrs. Woodward, the beneficiary in the policy and the plaintiff in this suit. He was told by the agent that the policies had lapsed. The check was declined and Mr. Howell returned it to Mr. Woodward, the husband of the plaintiff, informing him of the agent’s reason for not accepting it.

The check, drawn on the 20th, was left at a drug store on that day by Mr. Woodward, who directed the druggist to give it to Mr. Howell for delivery to the company.

There is no question of the fact that the premiums were not paid in time to prevent the voidance of the policy.

Unless some legal and valid defense were interposed by the insured or the beneficiary which would relieve against the forfeiture or failure to pay the premiums, by the terms of the contract, the effect of such failure is fatal to the plaintiffs’ case.

The plaintiffs, by notice of motion for judgment, sued the company for damages for the willful and fraudulent lapsing, cancellation and forfeiture of the policy first described herein. The damages are alleged to be $328.50, suffered by them, on account of the payment of premiums during the life of the policy. This sum is at variance with an itemized statement put in evidence of the premiums paid, which, however, may be of inconsequential moment.

[590]*590By agreement of counsel, the trial was had without a jury and the court gave judgment for the defendant upon the evidence introduced by the plaintiffs.

The plaintiffs urged that the company had, by its course of dealing with them, established the custom of collecting the premiums, on the policies referred to, at the office of Mr. Thomas L. Woodward, and that this method of collection could not be changed without their consent.

Prior to the 5th of November, 1934, Mr. Howell, at the instance of the defendant, notified the plaintiffs that he would not continue to collect the premiums at Mr. Woodward’s office and that they would in the future be due and payable at the company’s office, in the National Bank building in Suffolk, which is just across the street about one hundred feet from the American Bank building in which Mr. Woodward’s office is.

This notice was accentuated by a letter, of the district manager of the company, to Mr. Woodward, of November 5, 1934, to the same effect. Thereafter, until the lapsing of the policies, Mr. Woodward paid the premiums at the company’s office, in accordance with the terms of the notification. Sometimes this was done by sending the checks to the office by Mr. Howell, who testified that he did this as a personal courtesy from himself to Mr. Woodward.

This was not the first time the place of payment was changed. In the early existence of the policy the premiums were collected from Mrs. Woodward. The subsequent change to the office of Mr. Woodward was doubtless for her convenience. It, therefore, seems not to have assumed the seriousness of a custom or usage, with its attendant incidents, but only a “variable practice,” which was subject to change by the company in accordance with the provision of the contract on the subject, and this, for any reason whatever. But if there were a custom, as is urged, it could be abandoned upon notice to the party affected. Sovereign Camp, W. O. W. v. Booker, 93 Okl. 139, 219 P. 931.

Again the plaintiffs contend that it was proven that it was the custom of the defendant insurance company to notify [591]*591its policyholders of its intention to lapse the policy upon a particular date and that no such notice was given in this case and that, therefore, there was a waiver of the forfeiture by the company. There is evidence tending to prove this contention, but if there were such a custom it is not shown that the plaintiffs knew of it, at the time of the making of the contract, or at any other time, and, therefore, the parties could not be said to have contracted with reference to it.

“The existence of knowledge of the usage at the time the contract was entered into is, therefore, essential.

“From the reason on which the rule is based, i.e., that the usage being known to both parties it is presumed that they contracted in reference to it, it follows that the usage cannot be set up by a party who was ignorant of it at the time of the contract.” Am. & Eng. Enc. of Law (2d Ed.), vol. 29, p. 388.

We think this contention is without merit.

In the note appended to the case of Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 543, 37 Am. Rep.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hagin v. Fireman's Fund Insurance
353 P.2d 1029 (Arizona Supreme Court, 1960)

Cite This Page — Counsel Stack

Bluebook (online)
192 S.E. 581, 168 Va. 585, 1937 Va. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-continental-life-insurance-va-1937.