Te Bow v. Washington Life Insurance — 59 A.D. 310

Majority

p. 310

Carrie A. Te Bow, Respondent, v. The Washington Life Insurance Company, Appellant.

Headnote

Insurance—a tender not required, of the insured, where the company wrongfully declares the policy forfeited.

Where the general agent oí an insurance company notifies a subordinate agent that a policy has been forfeited for non-payment of a premium and cannot be reinstated unless the insured furnishes a satisfactory medical certificate, although the thirty days’ grace allowed by the terms of the policy for the payment of, such premium have not then expired, and the subordinate agent, who has authority to receive the premiums due upon the policy, communicates such notification to the insured, the insured is not obliged to make a formal tender of the premium to the insurance company in order to keep the policy in force.

Appeal by the defendant, The Washington Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 20th day of September, 1900, upon the decision, of the court rendered after a trial at the Ulster Trial Term before the court without a jury.

Upon the 24th of April, 1897, the defendant delivered, to Peter E. Te Bow a policy of life insurance, No. 98,902. The policy was payable to Carrie A. Te Bow, this plaintiff, the wife of the insured. The policy provided for quarterly payments in advance of seventy-two dollars and sixty cents on the twenty-fourth days of January,

p. 311

April, July and October in each year thereafter for twenty years. In the policy is a provision granting thirty days’ grace for the payment of the quarterly premium after the policy had been in force for more than three months. Upon October twenty-second one ■Gaul, the agent of the defendant, called upon Te Bow and requested payment of the premium falling due October twenty-fourth. Te Bow then stated that he could not pay it. Upón October twenty-eighth Gaul informed Mr. Patterson, the general agent of the defendant, that Mr. Te Bow’s condition was such that he probably would not .get well, at which time Mr. Patterson demanded back the premium receipt which had not been delivered to Te Bow by reason of his ■failure to pay the premium, and wrote this letter to Mr. Gaul:

“ New York City, Oct. 29, 1897.

“Mr. John A. Gaul,

“ Kingston, N. Y.:

“ My Dear Sir.— Please return at once the receipt for premium •due October 24th on policy No. '98,902, Te Bow. Premium not having been paid when due policy has been forfeited.

“Very truly yours,

“WM. PATTERSON.”

Thereafter, upon November eighth, in response to a letter from Gaul, Patterson wrote to Gaul the following letter upon the company’s paper:

“New York City, Nov. 8, 1897.

■“ Mr. J ohn A. Gaul,

“My Dear Sir.— Your favor of the 6th is received. Policy '98,902, Te Bow, lapsed for non-payment of premium for October can be reinstated according to company’s rule by furnishing satisfactory .medical certificate of good health and payment of interest. * * *

“ Yery truly yours,

“WM. PATTERSON,

“ Ma/nager.”

This letter was forthwith shown to Te Bow, with a statement by Gaul that it would be necessary to get a physician’s certificate of good health as a condition to the company’s receiving the premium •due October twenty-fourth. This Te Bow stated that he would be

p. 312

Unable to do, and asked Gaul if he could not receive a check dated back to a time prior to the twenty-fourth. This Gaul refused to take. Thereafter, and upon the 17tli of December, 1897, Te Bow died, and this action was brought to recover upon the said policy of insurance.

Linson & Van Buren, for the appellant.

Warren C. Van Slyke and A. T. Clearwater, for the respondent.

Upon the 24th of October, 1897, this policy had been in force .more than three months. Te Bow was then entitled to his thirty days’ grace, in which to. pay the premium. The defendant was Unauthorized'to declare the policy forfeited at any time prior to the 23d day of November, 1897. Up to that time, within the terms of the contract, Te. Btow had an undoubted right to pay the premium and maintain the policy in force. The premium was not, however, paid prior to that time nor prior to the death of Te Bow, nor was it tendered. The sole question in' the case seems to be whether the defendant is precluded from asserting the non-payment of said premium as a defense to this action by any act of his own which has contributed to such non-payment.

That Patterson was the general agent of the defendant is not disputed. ' His acts in declaring the' policy forfeited by his letters of October twenty-ninth and of November eighth were concededly in violation of the defendant’s contract. These letters, or at least the letter Of November eighth, was shown to Te Bow while there was still abundant time within the contract for Te Bow to have paid the premium. In connection therewith Te Bow was informed by Gaul that to be: allowed to pay the premium he must furnish a health certificate. The appellant here contends that the decla^ rations of Gaul were incompetent evidence against the company, as he was not authorized as an agent in any way to vary the terms of payment. It seems clear that the declarations of the agent authorized to receive premiums, that such premiums would be received only upon a condition, is the declaration of the company. But those declarations we deem inconsequential in this case. They were simply an amplification of the declarations of Patterson,

p. 313

the acknowledged agent of the company, in his letter. It is urged that there never was at any time a refusal to accept the premium. This argument is hypercritical. A declaration that a policy had lapsed and can be reinstated by furnishing a satisfactory medical certificate imports of necessity a- denial of the right to reinstatement except upon the condition named. With the unauthorized cancellation of the policy and a refusal to accept the premium except upon a condition which was unauthorized, the authorities are uniform to the effect that the defendant is estopped from claiming as a defense to this action that the premium has not been paid. In May on Insurance (3d ed.), section 358, it is said : “ Payment or tender of payment of premiums is not necessary where the insurers have already declared the policy forfeited or done any other act which is tantamount to a declaration on their part that they will not receive it if tendered.” In Baumann v. Pinckney ( 118 N. Y. 616 ), Judge Vann, in writing for the court, says: “Moreover, after the defendant had ruptured all relations with the plaintiff by repudiating her contract and declaring that all his rights thereunder had been forfeited, was he bound to make any tender before commencing an action for specific performance ? We do not think that it was necessary for him to go through with the form of making an offer of the money when she had virtually declared that she would not receive it.” In Leslie v. Knickerbocker Life lns. Co. ( 63 N. Y. 33 ), in the opinion of Judge Folgeb, it is said: “ Even if there be no primary hostile purpose in the action of one who may in a certain event become entitled to a forfeiture or other right arising from the non-performance of a condition, if by his act he has induced another to omit strict performance, he may not take the benefit or exact the forfeiture.” ' In Whitehead, v. New York Life lns. Co. ( 102 N. Y. 156 ), Judge Finch says: “ The company cannot depend upon a default to which its own wrongful act contributed and but for which a lapse might not have occurred.” In Shaw v. Republic Life Lns. Co. ( 69 N. Y. 292 ) the opinion reads: “Where one party to a contract declares to the other party to it that he will not make the performance on the future day fixed by it therefor, and- does not, before the time arrives for an act to be done by the other party,

p. 314

withdraw his declaration, the other party is excused from performance on his part, or. offer to perform, and may maintain his action for a breach of the contract when the day has passed. Such is the well-established rule.”

These authorities furnish abundant support for the judgment in this action.

All concurred; Chase, J., in result; Edwabds, J., not sitting.

Judgment affirmed, with costs.