Majority
p. 626POWERS v. PRUDENTIAL INS. CO. OF AMERICA. (Supreme Court, General Term, Second Department December 10, 1894.) Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
Headnote
Insurance—Action on Policy.Where the defense was that the policy sued on has lapsed by nonpayment of premiums, the rendition of a verdict for plaintiff is sufficient to justify an assumption that the jury found that payments made after the alleged forfeiture were received as premiums on the policy, and not as an application to revive the policy.
Appeal from circuit court, Kings county.
Action by Nicholas Powers against the Prudential Insurance Company of America. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
Affirmed.
Magner & Hughes (Thomas F. Magner, of counsel), for appellant
Edward v. Dooley (Chas. J. Patterson, of counsel), for respondent.
This action was brought upon a policy of insurance upon the life of the plaintiff’s intestate, Sarah Powers, deceased. The defense interposed was that the policy had lapsed and become null and void by reason of the nonpayment of the premiums thereon. The cause was tried at the circuit before a jury, and the plaintiff recovered a verdict. The defendant has appealed from the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the minutes of the court. The rendition of the verdict is sufficient to justify the assumption by this court that the jury found the facts involved in favor of the plaintiff.
p. 627
Inasmuch, therefore, as the evidence presented to the jury fully justified the inference that the forfeiture of the policy had been waived by the company, we discover, no reason for interference with the judgment. Upon the question of the forfeiture the trial judge charged the jury that, if the company received the payment of the premiums which were in arrear as premiums upon the policy, such payment, as a matter of law, would constitute a waiver of the forfeiture and a revival of the policy; but, if such payment was only received as an application to revive the policy, then it was not revived. The trial judge further charged the jury that, “in determining the authority of agents, their instructions were not necessarily controlling; that if you instruct your agent to do one thing, or to exercise only a limited authority, and then knowingly and habitually suffer him to exercise greater authority, you are bound by the authority you allow him to exercise, your instructions to the contrary notwithstanding.” Those instructions contained a fair exposition of the law, and, as the verdict rendered by the jury was supported by evidence, we detect no reason for interference. The judgment and order denying the motion for a new trial should be affirmed, with costs. All concur.