Lechler v. Montana Life Insurance

186 N.W. 271, 48 N.D. 644, 23 A.L.R. 1193, 1921 N.D. LEXIS 141

• Court: North Dakota Supreme Court
• Decided: December 1, 1921
• Status: Published

Opinions

Birdzell, J.

This is an appeal from a judgment in favor of the plaintiff, which was entered on the verdict of a jury. The facts are as follows: -The plaintiff is the beneficiary of a life insurance policy issued by the defendant on the life of his uncle, Henry Boerger. The policy was issued on November 17, 1917, in the sum of $5,000. The premiums were payable on November 17th of each year, with the proviso that, after the policy had been in force a year, 31 days of grace would be allowed. The insured paid the first premium by giving a promissory note. When the second premium became due the insurance company sent an official receipt to the Beach State Bank of Beach, N. D., with instructions to deliver it to the insured upon payment of the premium. The insured had notice that the receipt had been sent, but he did not pay the premium to the bank, nor forward it to the company within the grace period, and the policy lapsed, according to its terms, on December 19, X918. On the 3rd or 4th of February, 1919, James McGowan, a general agent of the defendant company, and James Haigh, an insurance agent of the same company, called at the farm of Henry Boerger, the insured, for the purpose of obtaining payment or renewal of the first premium note. At this time they also obtained the signature of Boerger to an application for reinstatement of the policy; it being agreed that he should give a note for the renewfal premium. Two or three days later, Boerger went to the office of Haigh in Beach, and signed a promissory note for the full amount of the second premium, payable to -the order of the Montana Life Insurance Company, and due on or before June 17, 1919. In a letter dated February 6, 19x9, Haigh forwarded the application for reinstatement, together with the note, to the defendant company at Helena, Mont. It seems that this letter was not received by the company until some two or three weeks later. The body of the letter is as follows :

“Find inclosed reinstatement application of Henry Boerger; also a six months’ note for the premium. Mr. Boerger wants to carry this insurance. He had almost a total failure of crop last year, and had planted a large acreage. His plans are to put in a big crop this year.

“Mr. Boerger owns an improved 320-acre farm and has a small mortgage on the farm. Trusting with this information before you, you will find it good business, and reinstate him, I am,

Yours very truly, J. A. Haigh.”

March 13th the defendant company replied to Haigh’s letter as follows:

“We have received the application for reinstatement of policy No. 11949, together with note which is returned herewith.

“I regret to say, Mr. Haigh, that we are not permitted to accept bank form notes for full first renewal premiums. Would it be possible to handle this note in any other way?

“We inclose a company form note which we would be quite willing to consider in this matter if accompanied by a cash deposit of $109.90.

“The least amount of cash that I am permitted to accept with a note in extension of the first renewal premium is arrived at by taking the short-term rate which you will find in the rate book at the insured^ attained age and multiplying the monthly premium per thousand by the number of thousands of insurance and then by the number of months from the due date of premium to due date of note.

“Would it not be possible for Mr. Boerger to borrow locally enough to accept this proposition?

“We also inclose blank application for reinstatement because the one which was sent in was filled out, T hereby represent that since the 17th day of November, 1918.’ We would like to say that the reinstatement blank must show his condition since the date of the policy, and not merely since the due date of' the premium. In this case, for exajmple, he might have had a serious accident or illness in Septémber, 1918, and in that case the question was correctly answered by him, but the company would not be protected. I know that Mr. McGowan would not have witnessed the application and handled the matter had he had any doubts of the applicant’s condition, but the only way we can protect ourselves in case of difficulty and to prevent discrimination is to have every blank properly filled out. A strange examiner coming in would not take Mr. McGowan’s signature as meaning what you and I know it does mean.

“I hope that you will let me know what you think of this case. It is evidently fine business, and we want it on the books if there is any possible show to get it.

“With best wishes, we are,

Very truly yours,

“C. E. Herfurth, Actuary.”

This letter was received by Haigh in due course of mail, but its contents were never communicated to Boerger, and the note which Boerger had given was not returned to him. About six weeks later, or April 29th, Boerger died, and the beneficiary brings this action, claiming that the policy was reinstated, or that the defendant is precluded from asserting that it was not reinstated.

The policy provides that if any premium is not paid as provided in the policy, it may be reinstated at any time to its original form and amount on payment of arrears of premiums, with interest at the rate of 6 per cent, per annum, and upon evidence of insurability satisfactory to the company. The principal contention of the appellant is that the agency of McGowan and of Haigh was.limited to the solicitation of insurance through original application; that neither of them had any authority to alter the terms of the contract in so far as payment of premiums was concerned; and that, as this limitation of authority appears in the policy itself, the insured was not justified in relying upon any representations made at the time the reinstatement application was taken.' The policy provides as follows:

“No agent can make, alter or discharge this policy or extend the time for the payment of premiums, nor can the policy he varied or altered or its conditions waived or extended in any respect, except by the written agreement of the company, signed by the president or secretary, whose authority will not be delegated.”

The agency contract of McGowan is in evidence. In it he is appointed general agent for six counties in western North Dakota, with authority to secure applications for insurance and forward them to the company for approval or disapproval. Haigh was a local agent, whose authority to act for the company is presumably more limited than that of McGowan. The evidence tends to establish that at the time McGowan and Haigh were at Boerger’s place for the purpose of securing a settlement of the first premium note they solicited him to apply for reinstatement of his policy, and that in that connection they represented to him that if he would give his note for the premium he would be reinstated. McGowan produced a reinstatement application, which he filled out, and which Boerger signed; McGowan witnessing the application.

In our view of the case it is not necessary to determine whether or not McGowan had authority, either actual or ostensible, to waive the provisions of the contract regarding the payment of premiums. We are of the opinion that he was acting within the scope of his agency in soliciting the reinstatement. This he was doing in the interest of the company, and he had apparently been supplied with blanks to the facilitate the transaction of this character of business for it. In transacting it, he was not acting as the agent of Boerger. Our statute provides (§ 6632, C. L-1913):

“Any person who shall solicit an application for insurance upon the life of another shall, in any controversy between the assured or his beneficiary and the company issuing any policy upon such application, be regarded as the agent of the company and not the agent of the assured.”

Ordinarily an insurance company is as much interested in retaining relations with its policy holders as it is in soliciting new business, and to this end applications for reinstatement are regarded with much the same favor as applications for new business. We are of the opinion that the definition of an agent laid down in.the statute referred to includes one taking an application for reinstatement as well as one taking an original application. In fact, the counsel for the appellant in the instant case take a position that is entirely consistent with this construction of the statute for it is contended .that, as the policy in question had lapsed, it could not be revived except a new contract be entered into by the parties; the new contract being, of course, an agreement to revive the policy.

In holding, however, that McGowan and Haigh were agents of the company in soliciting the reinstatement application, we do not hold that the company was necessarily bound by the representations that they made contrary to the express conditions of the contract which was being revived. But we do hold’that their agency was one which lasted until the reinstatement was either effected or rejected, and, while their authority was subject to such limitations as appear in the policy, that these in turn were capable of being extended by the action or nonaction of the company. The effect of this holding, in connection with the facts in the instant case, is that the note which the company mailed to its agent, Haigh, and which Haigh retained, must be regarded as- remaining in its possession, and the failure to Haigh to notify Boerger must be treated as the failure of the company. We may readily assume that the company had the right to reject the application for reinstatement either on account of the nonpayment of the premium in the manner required or on account of a defective showing of insurability, but when it elected to reject the application on either or both of these grounds, it must be held to a knowledge of the transaction between its agents and the insured, and to have assumed the legal consequences of its failure to communicate its rejection to the applicant, provided it was under duty so to do. There is ample evidence in the record that Boerger was led to believe his note would be accepted for the premium, and that the application for reinstatement satisfied the requirements of the company. Certainly this evidence, in conjunction with the complete failure to return the note and to notify the insured that his application was rejected, would justly warrant the inference that the insured believed his reinstatement to have been completed, that he had become liable upon the note given for the premium, and that the company had, in,fact, waived payment in cash. It is to be noted here'that notwithstanding the return of the note to Haigh, the application, though defective, was retained by the company. Since we are of the opinion that the evidence warrants the inferences suggested as inferences of fact, it remains to determine whether or not these inferences may be effective in law as against the express provisions of the policy.

There is no rule of law or .policy that prevents contracting parties from waiving provisions that are inserted for their benefit. ' As was said by the United States Supreme Court in a case involving policy stipulations similar to those in the instant case (Knickerbocker Insurance Co. v. Norton, 96 U. S. 234, L. ed. 689) :

“But a party always has the option to waive a condition or stipulation made in his own favor. The company was not bound to insist upon a forfeiture, though incurred, but might waive it. It was not bound to act upon the declaration that its agents had no power to make agreements or waive forfeitures; but might, at any time, at its option, give them such power. The declaration was only tantamount to a notice to the assured, which the company could waive and disregard at pleasure. In either case, both with regard to the forfeiture and to the powers of its agent, a waiver of the stipulation or notice would not be repugnant to the written agreement, because it would only be the exercise of an option which the agreement left in it. And whether it did exercise such option or not was a fact provable by parol evidence, as well as by writing, for the obvious reason that it could be done without writing.”

As to the character of acts that may be construed as a waiver of policy stipulations for the benefit of an insurance company the same court has expressed what appears to us to be the sound doctrine. In New York Life Insurance Co. v. Eggleston, 96 U. S. 572, 24 L. ed. 841, it is said:

“Any agreement, declaration, or course of action, on the part of an insurance company, which leads a party .insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter óf the contract. The company is thereby estopped from enforcing the forfeiture. The representátions, declarations, or acts of an agent, contrary to the terms of the policy, of course will not be sufficient, unless sanctioned by the company itself.”

The rule is stated in substantially the same language in Bacon on Life and Accident Insurance (4th ed.) § 602, where it is stated that the general principle has become well settled. Authorities are cited to show its application to cases where defaulted premiums are paid, or where payment has been made in a different manner than that stipulated, and these acts are accompanied by circumstances indicating that the assured was acting upon an honest belief that the literal terms of the policy would not be enforced against him. The company b.y its waiver is precluded from asserting its nonliability. See Mobile Life Ins. Co. v. Pruett, 74 Ala. 487; Southern Life Ins. Co. v. Edward L. Kempton, 56 Ga. 339; Cotton State Life Ins. Co. v. Lester, 62 Ga. 247, 35 Am. Rep. 122; Andrus et al. v. Fidelity Mutual Life Insurance Co. Assoc., 168 Mo. 151, 67 S. W. 582; Wm. Goedecke v. Met. Life Ins. Co., 30 Mo. App. 601; Echols v. Mutual Life Ins. Co. of New York (Neb.) 184 N. W. 58; De Frece v. Nat. Life Ins. Co., 19 N. Y. Supp. 8.¹ Applying the principle of these authorities to the facts in the instant case, we are of the opinion that the company could waive the conditions of the policy regarding the lapsing .tor nonpayment and the reinstatement, and that under the evidence there was ample room for-the jury to infer that it had in fact waived these conditions through its failure to properly act upon the application for reinstatement.

To. the contention that the lapsed contract could not be revived without entering into a new contract completed by an offer and an acceptance, it need only be stated that there is no principle of law peculiarly applicable to insurance contracts which necessitates an actual communication of an acceptance in every instance. There is a well-defined rule of law, applicable to insurance contracts as well as contracts in general, that where the relations between parties have been such as to justify the offerer in expecting a reply, or where the offeree has come under some duty to communicate either a rejection or acceptance, his failure to communicate his rejection or to perform this duty may result in a legal assent to the terms of the offer. See Williston on Contracts, § 91. Within this principle we think there was a duty to return -the note and communicate the rejection in the instant case at the peril of being held to the consequences of an assent to the reinstatement.

In the brief of the appellant some attention is given to the instructions of the court to the jury. As we read these instructions in the light of principles of law which we deem to be determinative of the case and in the light of the evidence, the appellant is not prejudiced by them.

The judgment appealed from is affirmed.

Bronson, J., concurs.

1 Reported in full .in the New York Supplement; reported as a memorandum decision without opinion in 64 Hun, 635.