Koelges v. Guardian Life Insurance

A life insurance company issued a policy, which became forfeited by failure of the insured to meet the premiums according to its terms. The insured, however, called at .the company’s office, inquired of its clerk if she might pay the premiums; was informed by him that she might, and of. their amount, which she promised to call and pay; hut the clerk offering to call and receive it at her house, she afterward made the payment to him there, and received separate receipts for the several premiums, signed hy him for the secretary of the company. The payment was brought to the knowledge of the company’s cashier, but he did not, nor did the company, ever receive the premiums paid. The clerk had sometimes been employed to collect premiums on non-forfeited policies, hut had no authority to receive premiums upon those which were forfeited. In an action upon the policy to recover the insurance as provided therein.— Held, that the forfeiture had not been waived, and the plaintiff could not recover. Held, further, that it was error to reject as evidence, on the trial of the action, the company’s charter and by-laws.

The complaint in this action set forth a policy of life insurance, dated July 25,1868, issued by the defendant, upon the lives of the plaintiff and of Albert Koelges, her husband, for the sum. of $4,000, payable, upon the decease of either of the insured, to the survivor; and providing, among other things, for payment of the sum of $26.93 on or before" the 25th days of October, January and April then next; and also of an annual premium of $172.32 on or before July 25th, in every year during the continuance of the policy or (with the consent of the company), quarterly in advance. It also provided as follows, viz: “ in case the premium or premiums shall not be paid to said company on or before the time specified for the payment of the same, this policy shall thereupon be forfeited and cease, and determine, except as hereinbefore provided..” The complaint also alleged the death of Albert Koelges, and claimed to recover the insurance provided for in the policy. The defendant averred in defence, the failure of the insured to comply with the requirements of the policy, in that no payments had been made of two premiums, falling due on the 25th days of April and July, 1869, respectively, and a forfeiture of the policy on account of the failure. The plaintiff testified, that, on the last day of July, 1869, she had taken the policy to the office of the defendant in Hew York city, and there had conversation with a clerk of the company, who was behind a desk in the office, as follows: “ I asked Mr. Holley if he could tell me if my husband had paid the premium of the policy; he asked me for the policy, so I gave it to him, and he said he would tell mo right away; he got a large book' and told me, no, it was not paid; so I asked him if I could pay it, and he said, why, certainly yon can; I asked him how much it was; he took my policy and reckoned it out; those (pencil marks on the policy) are the marks he made; he made a memorandum on it of the amount •of the premium ; I told him that I could bring the money; he said I could pay it, and I wanted to fetch the money the ■next day; he said, never mind, I will save you the trouble; I live in Williamsburgh; I pass your house everyday; I can save you the trouble, so that yon need not come over here again; the day after, he came to my 'house, and he received the money and gave me two receipts; these produced are the same he gave me.” The receipts were as follows: [ Temporary Receipt. ] “ The Guaedian Mutual Life Insubance Company of Mew Yobk. [ 2c. Int. Rev. Stamp, Canceled ] No. 251 Broadway. New York, April 25th, 1869. Received from Albert and Gertrude ICoelges, twenty-six 93 dollars binding Policy Mo. 14,980, from the 25th day of April, 1869, at noon, to the 25th day of July, 1869, at noon. Mot valid unless countersigned by J. E. Holley. • J. E. HOLLEY, $26.93. . For the Secretary.” (Countersigned J. E. Holley.) [Temporary Receipt.] " The Guardian Mutual Life Insurance Company of New York. [ 2c. Int. Rev. Stamp, canceled. ] No. 251 BROADWAY. New York, July 25th, 1869. Received from Albert and Gertrude Koelges, twenty-six 93 dollars binding Policy Mo. 14,980, from the 25th day of July, 1869, at noon, to the 25th day of October, 1869, at noon. Mot valid unless countersigned by J. E. Holley. J. E. HOLLEY, Agent for the Secretary.” (Countersigned J. E. Holley.) The plaintiff' also testified to the death of her husband on the 2d of September, 1869, and that after his decease Holley came with two others, ivho were from the office of the company, one of them being its secretary, and offered to return the money paid, Holley saying he had no authority to receive it, but that she, the plaintiff, had refused it. One of the agents of the company also testified on behalf of the plaintiff, that he had negotiated the insurance in question with the insured, and sometime in August, 1869, had gone to the cashier of the company in the company’s office and inquired whether the premiums had been paid upon the policy in question, with a view to obtaining his commissions thereon in case the premiums were paid, that he was told by the cashier that it had not been paid, and that while they were talking Holley came up and said he had received the money on the policy, and asked the witness to allow his account to remain for a month; that the cashier had requested Holley to make out an account, which he did for the two payments received by him, and which he handed to the cashier, who placed it in his drawer, and Holley promised to pay the money next month; that in the next month he, the witness, had presented his bill at the company’s office, and the clerk, whose duty it Avas to state the account with him, informed him that the premiums had not been paid on the policy, and that Holley being called upon said he had not paid it, and requested that the account might remain another month, and he also then said that Koelges was dead. It also appeared, that Holley had been sometimes employed to collect premiums by the company, though the collection thereof was no part of his duties, and he had been an agent of the company, but that he had in fact no authority to receive any premiums upon forfeited policies, and no proof Avas given as to any authority, for Holley to sign the name of the secretary of the company to the receipts given by him. Various exceptions were taken to the evidence given, and the defendant moved for a nonsuit at the close of the defendant’s testimony, which was denied, and exception taken to the refusal. The defendant gave evidence upon the subject of defendants duties as clerk, tending to show that he Avas unauthorized to receive the premiums paid, or give the receipts therefor, and also as to the custom of the company, respecting the receipt of premiums upon forfeited policies, and offered in evidence the charter and by-laws of the company, which the court refused to receive, and an exception was taken to the refusal. The jury gave a verdict for the amount of the insurance, and the' defendant obtained time, and made a case with exceptions, and also moved at Special Term for .a new trial, which was refused, and this appeal is from the order entered upon the refusal.