Pacific Mutual Life Insurance v. Carter

123 S.W. 384, 92 Ark. 378, 1909 Ark. LEXIS 323

• Court: Supreme Court of Arkansas
• Decided: November 29, 1909
• Status: Published

Opinions

Wood, J.,

(after stating the facts.) 1. The appellant did not waive the right to have any disputed questions of fact submitted to the jury. The bill of exceptions shows that appellant presented other prayers for instructions after its prayer for peremptory verdict. There is no' waiver in such cases. See note to Love v. Scatcherd, 77 C. C. A. 1, where numerous' authorities are collated.

2. The failure of appellee to pay the premium before the injury forfeited the policy. Hoselton, who was a mere soliciting agent, and no more, had no authority to continue the policy in force by issuing to appellee the renewal receipt. American Insurance Co. v. Hampton, 54 Ark. 75; German-Am. Ins. Co. v. Humphrey, 62 Ark. 348; Mutual Life Ins. Co. v. Parrish, 66 Ark. 612; Fidelity Mut. Ins. Co. v. Bussell, 75 Ark. 25; Mutual Life Ins. Co. v. Abbey, 76 Ark. 328; American Ins. Co. v. Hornbarger, 85 Ark. 337.

3. Upon the undisputed evidence there was really no question of fact to go to the jury, and the court did not err in instructing a verdict for the appellee. For the uncontroverted facts show that C. D. Head was the general agent of appellant. His first contract with the company several years before was to act as their general agent in writing life insurance. Then he concluded that he desired to write accident insurance, and wrote to the company for rate book and supplies in that line, and the company responded by sending the supplies of stationery. And on all the stationery Claude D. Head appeared as “General Agent.” This he says constituted his authority, and this designates him as their general agent to write accident, as well as life insurance.

He was already the company’s general agent to write life insurance under contract, and the appellant, by sending him the stationery for the accident business designating him as “general agent” for that line also, virtually extended his contract for life insurance to cover also accident insurance. The only limitation was that lie should only write accident insurance in towns of 5,000, but that was not a limitation of his authority as general agent. He was the general agent of the company in the circumscribed territory. It will be observed that witness, Head, when asked who was the general agent in South Arkansas during the year 1907, replied that he was. Again he said: “I am not the general agent now. The first of the year we separated the life business, and Mr. Leigh of Little Rock took over the accident business.” Again, the record shows that, in answer to the question, “State whether or not vou were acting as general agent of the accident department during this period of 1907,” he replied: “I signed the policy as agent.” Then followed the answers to the interrogations indicated supra .that ■he was the general agent during the year 1907. True, on cross interrogatory he said that he had no authority as general agent for the accident business, “further than .this.” But he nowhere declares without qualification that he was not the general agent, and the effect of his testimony, taken as a whole, was that he .was the general agent for accident as well a.s Ufe. This is the •only reasonable conclusion to be drawn from his evidence. But, if we .are mistaken in saying that Head, under the undisputed evidence, was the general agent in fact, certainly there can be no question that the company clothed him with the apparent authority of a general agent. It held him out to the world as such. This being true, the company is liable to those who dealt with him on the faith of his being the general agent. 1 Cooley, Briefs on Ins. 345, and cases cited; People’s Fire Ins. Ass. v. Goyne, 79 Ark. 315.

For the purposes of this case it is immaterial whether Head was the general agent in fact, or only had the apparent authority of a general agent. For in either case the evidence shows that the forfeiture of the policy for the nonpayment of the premium was waived by the conduct of appellant’s general agent. He knew that the renewal receipt for the premium with his name as general agent thereon had been delivered to appellee, and made no'objections' thereto. He thus extended the credit to appellee beyond the time for payment, instead of requiring the payment to be made as the policy specified, and the company is bound by his act in so doing. Again, after the injury was received, he was advised that the payment of the premium was not made before the injury occurred, but thereafter, and he acquiesced, and encouraged appellee to make his proofs of loss,

As we construe the provision in regard to proofs of loss, appellee complied therewith substantially; but, even if he did not, the conduct of Hea'd, the general agent, concerning this would be a waiver of forfeiture on that account. See, on waiver of conditions by agent having authority so to do, Commercial Fire Ins. Co. v. Belk, 88 Ark. 506. Other cases on this subject are cited in appellee’s brief.

The general agent of an insurance company may waive the performance of a condition inserted in a policy for the benefit of the company. Van Allen v. Farmers’ Joint Stock Ins. Co., 4 Hun 413 and cases cited; 22 Cyc. 1429.

4. This court has declared valid the statute allowing a penalty and attorney’s fees as against fire insurance companies in Arkansas Insurance Co. v. McManus, 86 Ark. 115. The statute includes accident insurance companies, and there is no exception in favor of mutual accident insurance companies. See Acts 1905, p. 307.

But the act makes the company liable for failure to pay the loss “after demand made therefor.” The .statute thus contemplates that there shall be a demand. A recovery for penalty and attorney’s fee cannot be had when complainant makes demand for more than he is entitled to recover. It could never have been the purpose of the Legislature to make the insurance companies pay a penalty and attorney’s fee for contesting a claim that they did not owe. Such an act would be unconstitutional. ■ The companies have the right to resist the payment of a demand that they do not owe. When the .plaintiff demands an excessive amount, he is in the wrong. The penalty and attorney’s fee is for the benefit of the one who is only seeking to recover after demand what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain if. The appellee, by asking judgment for $1,444.44, concedes that he was demanding more in his complaint than he was entitled to receive. The judgment for the penalty and attorney’s fee is -therefore set aside, and the judgment of the circuit court will be affirmed for $1,444.44, with interest from date of judgment at 6 per cent.