US SUPREME COURT DECISIONS

l. 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 estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.

2. A policy of insurance issued by a New York company upon the life of A., who resided at Columbus, Miss., stipulated, that if the premiums were not paid at the appointed dates, the company should not be liable, that all receipts for them were to be signed by the president and actuary, and that agents were not authorized to make, alter, or discharge contracts or waive forfeitures. After the policy was issued, the company discontinued its agency at chanrobles.com-red

Page 96 U. S. 573

Columbus, and from time to time, as the premiums became due, notified A. by mail where and to whom to pay them. No notice as to the premium due Nov. 11, 1871, having been received by him, it was ascertained by inquiry of the agents at Savannah, Ga., and Vicksburg, Miss., to whom payment had formerly been made, that the sub-agent at Macon, Miss., held the receipt. Payment was tendered him Dec. 30, but he refused to accept it unless a certificate of A.'s health was furnished. A. died Jan. 6. 1872. The company, when sued, set up the forfeiture of the policy by reason of the nonpayment of the premium on the day it was due. Held that A., in view of the company's dealings with him, had reasonable cause to expect, and rely on receiving, notice where and to whom to pay the premium, and that the company was estopped from setting up that the policy was forfeited by the nonpayment, on Nov. 11, of the premium then due.

3. Insurance Company v. Davis, 95 U. S. 425, and New York Life Insurance Company v. Statham, 93 U. S. 24, commented on and distinguished from this case.

This was an action in the District Court of the United States for the Northern District of Mississippi, having the same powers as a circuit court, on a policy of life insurance, issued by the plaintiff in error, the defendant below, a New York corporation doing business in the City of New York, on the 11th of November, 1868, for the sum of $5,000, on the life of Edward C. Eggleston, a resident of the State of Mississippi, for the benefit of his children, Louisa and Thomas, and in consideration of an annual premium of $306, payable after the first premium semiannually, one-half on the 11th of November, and one-half on the 11th of May, in each year. The policy contained the usual condition that if the premiums were not paid on or before the respective days named, together with any interest that might be due thereon, the company should not be liable. The following clause was added:

"All receipts for premiums are to be signed by the president or actuary. Agents for the company are not authorized to make, alter, or discharge contracts, or waive forfeitures."

Eggleston died on the 5th of January, 1872.

The defense set up on the trial was that the policy was forfeited by the failure of the assured to pay the last installment of premium, which fell due on the 11th of November, 1871. The cause was tried by a jury, who found for the plaintiffs, and the only question raised by the bill of exceptions and chanrobles.com-red

Page 96 U. S. 574

brought here for review is whether the judge properly left to the jury the question of fact which was made by the plaintiffs below in answer to the alleged forfeiture. The case presented on the trial, as shown by the bill of exceptions, is as follows:

The plaintiffs proved that the policy of insurance mentioned in the declaration was delivered, and the first premium received thereon, by one Stephens, a local agent of the defendant, in Columbus, Miss., and that said Eggleston, upon whose life said policy was issued, then and up to his death resided in the immediate vicinity; that soon after the issue of said policy the agency of said Stephens was revoked, and no other agent appointed at that place; that said Eggleston was notified by defendant to pay the next premium falling due to Johnston & Co., its agent at Savannah, Ga., and that he was also notified to pay the subsequent premiums to B. G. Humphreys & Co., the defendant's agents at Vicksburg, Miss., except the one falling due Nov. 11, 1871, all the other premiums falling due before the death of said Eggleston having been paid. It was also testified by the sons of said Eggleston, and by Goodwin, the cashier of the bank through which the other payments had been made, that if any notice was given by the defendant to said Eggleston, to whom and where the said premium due the eleventh day of November, 1871, should be made, that they did not know it; and that said Goodwin had the money to pay the said premium, which would have been paid had the notice been given; and after said premium became due and payable, said Goodwin, for said Eggleston, telegraphed to Johnston & Co., at Savannah, Ga., inquiring to whom payment should be made; who replied, to telegraph to B. G. Humphreys & Co., at Vicksburg; that B. G. Humphreys & Co. Replied, to make payment to Baskerville & Yates, sub-agents at Macon, Miss., who held the payment receipt. On Dec. 30, 1871, a friend of said Eggleston tendered payment of the premium to Baskerville & Yates, which was refused unless a certificate of health was furnished; said Eggleston was then sick, and died on the 5th of January, 1872. One Williams, a clerk of Baskerville & Yates in their insurance business, and a witness for the defendant, testified that on the 1st of November, 1871, he mailed a chanrobles.com-red

Page 96 U. S. 575

notice, post-paid, to said Eggleston, addressed to him at Columbus, Miss., to make payment to Baskerville & Yates, agents at Macon, Miss., and that they held the proper premium receipt. Macon, Miss., it was found, is thirty miles from Columbus by railroad.

Upon this evidence the judge charged the jury as follows.

"The nonpayment of the premium is admitted, and if nothing more appears from the evidence, the plaintiffs will not be entitled to recover. To avoid the defense, it is insisted by the plaintiffs that the nonpayment was caused by the defendants not having given to the said Eggleston notice of the place where payment was required, and therefore the fault of the company, and not that of Eggleston or the plaintiffs. The onus of proving the cause for nonpayment is on the plaintiffs. [If you shall believe from the evidence that the payments of the premiums had, before that time, been made to such agents as the company had designated from time to time, and of which and to where said Eggleston was given notice by the defendant, and that no such notice was given to said Eggleston before the time the nonpaid premium fell due, and that as soon as he did thereafter receive such notice he did tender to the designated agent the premium due, and that such failure to pay was caused by the want of such notice, then the policy was not forfeited, and the plaintiffs will be entitled to recover the amount of the policy, with six percent interest, from sixty days after the company was notified of the death of Eggleston, less the amount of any unpaid premiums, with like interest, up to the death of said Eggleston.] If you shall believe from the evidence that the notices before given were by letter through the mail, and that the agent of the company authorized to receive payments of the premium mailed to said Eggleston, at his post office, such notice within such time as, by due course of mail, he would have received it, and within a reasonable time for Eggleston to make payment, then Eggleston will be held to have received such notice, and the plaintiffs will not be entitled to recover. The onus or burden of proof of such notice having been given is on the defendant."

The defendant excepted to so much of said charge as is included in brackets. chanrobles.com-red

Page 96 U. S. 576

Mr. Matt. H. Carpenter for the plaintiff in error.

The plaintiff in error was under no obligation to keep a local agent in the vicinity of the residence of the assured, and give him notice thereof. The premiums on his policy were payable at the domicile of the company. Insurance Company v. Davis, 95 U. S. 425.

If the defendants in error sought to excuse the payment when due, on the ground that it was the custom or usage of the company to notify the holders of policies where and to whom to pay, they should have proved on the trial that such was known to be the general usage and custom of the company, or a particular usage of universal notoriety at the place where the insurance was effected. Adams v. Otterback, 15 How. 539.

The case does not show that the assured intended to pay the premium falling due Nov. 11, 1871, or that he made any effort, prior to its maturity, to ascertain to what agent he should make payment. On the contrary, the presumption is, that, after his death became imminent, his friends took the matter in hand, and attempted to revive the policy for the benefit of his children. The agent was therefore independently of the express words of the policy, justified, both in law and in fair dealing, in refusing to waive the forfeiture.

The fact that the agents of the company had notified the assured to whom to make payment of particular premiums which became due prior to Nov. 11, 1871, was not such an act on the part of the company as amounted to a permission to him not to make payment until notified.

The agent could not waive payment until notice was given by him to whom and where to pay it. On the contrary, the policy expressly prohibited him from so doing.

This provision cannot be set aside upon any act of the agent and the assured. It is as much a part of the contract as any other. Chase v. Hamilton Insurance Co., 20 N.Y. 52; Buffum v. Fayette Mutual Insurance Co., 3 Allen (Mass.) 360; New York Life Insurance Co. v. Statham, 93 U. S. 31. chanrobles.com-red

Page 96 U. S. 577