Sheldon v. Connecticut Mutual Life Insurance

25 Conn. 207

Opinion

Ellsworth, J.

It being agreed that the contract for insurance would not be binding until the premium of insurance was received or provided for, and there being no policy delivered to prove that this was done, it became necessary, on the trial below, for the plaintiff to show, that the contract was perfected, and that the precedent condition had been complied with, so that his intestate was entitled to demand and have the policy as agreed. This the plaintiff undertook to show; and offered evidence to prove that Norton, the agent of the defendants, (who did this business and the general business of insuring for the defendants in Suffield, where the parties lived,) solicited Curtiss the intestate, to become insured in their office ; that Curtiss declined being then insured and wished delay, because he had not money on hand to pay the premium, as the terms of the policy required; that finally Norton agreed that he would provide for the premium himself, and it should be considered and held, to be paid to the company, and the note for the balance be given after-wards, and that the contract should be held to be good, when the proposals were accepted in Hartford, and the policy should be made out at a future time, bearing date from that day. It would seem as if this arrangement, if made out by the proof to the satisfaction of the jury, was material to the plaintiff’s case, and would establish the validity of his claim to a proper policy of insurance. This arrangement is one of daily occurrence where parties agree for an immediate insurance, but time is given for the payment of the premium, and the execution, and delivery of the policy of insurance, — the thing to be done is agreed to be considered as done, so that the obligation to pay the premium is the payment, and the obligation to make out a policy is virtually the policy itself.

Now the precise objection of the defendants is this; the provision “ premium paid” being in the written proposals, it is said that parol evidence can not be received to show that the insurance was to take effect before the premium was received, as this would be to vary the terms expressed in the writing. But this is not so. The principle of law is well enough stated, but clearly it has no application to this case. The evidence does not contradict or vary the writing, but is in harmony with it; for the mode of payment, or its legal equivalent or satisfaction, is no part of the writing as claimed; which is the real question in dispute. Nor is the parol agreement in the nature of a previous conversation merged in a written contract afterward made, and therefore to be held to be the exclusive evidence of what the parties have finally settled upon. The mode of payment, strictly, need not be any part of the contract of insurance; it may be collateral to it, and proveable as made before, or after, or at the time of the writing, unless the writing declares what the mode should be, which this does not.

We might go further, and deny that the words in the proposals, “ and I do further agree that the assurance, hereby proposed, shall not be binding on said company, until the amount of premium as stated therein, shall be received by said company, or an accredited agent,” make the payment of the premium a condition precedent, as was claimed in the argument, because those words are no part of the policy either by recital or reference. They are part of a writing following the proposals, which says “ that the preceding proposal answer and statement marked A. is correct, and shall be the basis of the contract between the parties.” The paper referred to states certain facts, such as the age of the applicant, his place of residence, his occupation, his health, &c., which statements must be true, or the policy never takes effect; but the clause under consideration is not a proposal answer or statement; it is a collateral agreement, fixing the time when the risk shall commence by fixing the time of payment of the premium.

Besides, it is every day’s experience and our reports are full of such cases, for persons to be held to have waived provisions and conditions inserted in contracts for their own special benefit, and therefore to be estopped from insisting upon that which is inconsistent with what they have said and done to affect others. The defendants were called upon to speak at the proper time, and can not now, after their silence or their co-operation, be permitted to disappoint others, who had a right to give them their confidence at the time. Curtiss supposed the premium was agreed to be considered as paid by the agent, when the proposition for insurance was accepted at Hartford. The jury have found that both he and Norton so understood it. And although the business was not done with proper care and attention, yet it was in fact done, and done at the request of the agent, who proposed to Curtiss to have the contract closed at the time and in the manner it was closed, and we can not permit the defendants to deny or repudiate the act of their agent, if indeed he was their agent in the transaction; which brings us to the next point in the argument.

The defendants admitted that Norton was, and had been their general agent for getting insurances in Suffield for many years before; and further, his manner of doing their business, the jury find, was well known to them and not disapproved of by them; but the defendants deny his authority in this instance to dispense with the payment of the premium on the making of the contract. This is a question of fact, and the existence and extent of this authority is just the question which the plaintiff claimed should go to the jury, and so the court viewed it in their charge to the jury; and in the course taken by the court, we can not see any error or ground of complaint. The plaintiff insisted that, it being admitted that Norton was the general agent of the defendants, as already stated, the jury should infer from that fact, and much other evidence which was before them, that he was fully authorized to do as he had done. They alluded particularly to the printed circular and commission sent by the defendants to their agents throughout the country, and to pamphlets and books accompanying them, and the knowledge which the defendants had of the manner in which Norton and their agents generally did their business abroad, and the fact that the defendants had never expressed any dissent to this continued course of things. We can not say that the jury did wrong in coming to their eonciusions. Little evidence of Norton’s authority would be necessary, after the admission that he was, and long had been, the agent of the company, to transact their business in Suffield, and certainly not as to his authority to agree that he would advance the premium himself, and charge it in a private account to the applicant, and to do whatever else was incidentally necessary and customary, in business of that nature. The powers of insurance agents locally established, are in the main pretty uniform and general in this country. These agents are furnished with blank policies, which need only to be filled out, and countersigned and delivered, to perfect the contract of insurance, though in some cases there are restrictions and conditions, which persons who ask for insurance must take cave to observe and follow, or they will not obtain a valid insurance. The extent of these powers has too often been discussed and too often decided, to need our comments, and may be found in all the elementary books and in numerous reported cases. We refer to one ease only which was not cited on the argument, though the principle is familiar to every respectable lawyer, New York Central Ins. Com. v. Nat. Pro. Ins. Com., 20 Barbour, 469. One of the conditions of the policy there was, that no insurance should be binding until the actual payment of the premium. The money was in the bank, where the agent was in the habit of making his deposits, deposited to the credit of the insured. The cashier told the agent of the insurers, at the time the arrangement for the insurance was made, that he could have the money. The agent directed him to let it lie, saying that when he wanted the money, he would draw for it. It was not in fact drawn by him until after the fire. Held, that the agent had waived a strict compliance with the condition, and that he had authority to do so. A like principle was settled by this court in Peck et. al. v. The New London Mutual Insurance Company, 22 Conn. R., 575, where we held that a local agent could waive a condition contained in the policy of insurance.

But it is said, even if Norton could agree that the cash part of the premium should be considered as paid, by being charged in the agent’s private account, this can not apply to the note to be given for the balance of the premium. We think the judge left this point in a correct manner to the jury in his charge. He instructed them, that the question depended on the same principles of law and fact, as the question respecting the payment of the cash part of the premium. This is correct.

It is further claimed that the court misled the jury by informing them, “ that when an application has been made and that application has been approved and accepted by the company, or its proper agents for that purpose, and a policy has been thereupon made, executed and completed, and notice of such execution given to the assured, the contract of such insurance is complete, and the applicant is entitled to the policy. It is said that the jury would naturally understand from thiá, that the payment of the premium, or any arrangement for its payment, is unimportant, if only a policy is made out, and ready to be delivered on payment. This objection will vanish when it is remembered that the remarks were made with reference to the objection, that there would be no contract of insurance unless a policy was executed and delivered, in which sense the remarks were right and proper, for the contract of insurance may be perfected, and become mutually obligatory, without a policy executed in form and delivered, and we can not think that the jury could have understood that the payment of the premium was not necessary before the policy, or the contract of insurance could take effect, if it was not waived, or considered as paid.

The plaintiff in his cross-examination of Norton, enquired about his practice with Curtiss, as to crediting him in account with premiums in other insurances. The answer being in the negative, the reception of the evidence, if incorrect, lays no foundation for a new trial; for the question and answer did not affect the verdict.

' The motion for a new trial for a verdict against evidence, which is an address to the sound discretion of the court, we do not grant. We add only a word to what we have already said. There were two main facts in dispute, which the jury found for the plaintiff; first, the arrangement between Curtiss and Norton, that the premium should be considered as provided for, and second, the authority of Norton to do this act. These questions being settled in favor of the plaintiff, he was entitled to recover, and we see nothing in the evidence which makes us believe that the verdict is against evidence.

We do not advise a new trial.

In this opinion, the other judges, Storks and Hinman, concurred.

New trial not to be granted.