Pomeroy v. Rocky Mountain Ins. & Sav. Inst. , 9 Colo. 295 ( 1886 )

Elbert, J.

Johnson was the president and general manager of the defendant company, and had charge of its home office, at Denver, with full power to write insurance and to represent the company. The company is bound by his acts in issuing the policy of insurance, in permitting its renewal and assignment, and in receiving the back dues necessary to its renewal, and the premiums thereafter becoming due. Bliss, Life Ins. § 278; Whart. Ag. § 202; Wood, Fire Ins. §§ 383, 391. His knowledge touching the condition of health of the insured must be regarded as the knowledge of the company. Story, Ag. § 140; Bliss, Life Ins. § 76 et seq.; Ang. & A. Corp. § 305; Whart. Ag. § 184.

Johnson having permitted the renewal of the policy, and its assignment, with full knowledge of Barton’s impaired health by reason of his intemperate habits, and with full knowledge that the plaintiff renewed and took an assignment of the policy as a security for advances already made, and thereafter to be made, having at the time received from the plaintiff payment of all back dues necessary to its renewal, and thereafter payment of the premiums on the policy as they became due, is to be regarded as having waived the condition respecting the impairment of health of the insured by intemperate habits. The company cannot be allowed to treat the contract as valid for the purpose of collecting dues, and as void when it comes to paying the insurance; or, as otherwise stated, “the company cannot be permitted to occupy the vantage ground of retaining the premium if the party continued in life, and repudiating it if he died. ” Insurance Co. v. McCain, 96 U. S. 84; Home Ins. Co. v. Duke, 84 Ind. 253; Brandup v. St. Paul F. & M. Ins. Co. 27 Minn. 393; Alkan v. New Hampshire Ins. Co. 53 Wis. 136; Frost v. Saratoga Mut. Ins. Co. 5 Denio, 154; American Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Miller v. Mutual Ben. Life Ins. Co. 31 Iowa, 216; Williams v. Niagara Fire Ins. Co. 50 Iowa, 561; Bevin v. Connecticut Mut. Life Ins. Co. 23 Conn. 244; Home Mut. F. Ins. Co. v. Garfield, 60 Ill. 124; Reaper City Ins. Co. v. Jones, 62 Ill. 458; Lycoming Ins. Co. v. Barringer, 73 Ill. 230; Peoria M. & F. Ins. Co. v. Hall, 12 Mich. 202; Short v. Home Ins. Co. 90 N. Y. 16; Bennett v. North B. Ins. Co. 81 N. Y. 273; Whited v. Germania F. Ins. Co. 76 N. Y. 415; Buckbee v. United States Ins. Co. 18 Barb. 541; Putnam v. Commonwealth Ins. Co. 18 Blatchf. 368 (U. S. C. C.); Bliss, Life Ins. § 278 et seq., and cases there cited; Wood, Fire Ins. “Waiver,” ch. 20; “Estoppel,” ch. 21, and cases there cited.

If thei’e was collusion between the plaintiff and Johnson, the president, to defraud the defendant company, it is matter of defense, to be pleaded.

. While it appears from the complaint, generally, that, the defendant company is a mutual company, we are not prepared to admit the proposition that that fact necessarily takes the case without the operation of any of the rules which we have stated. Theoretically, the insured in mutual companies are members of the company, but immunity from the above rules would not follow from that relation alone. The charter and by-laws of the company are not before us, nor are we advised that they prescribe any form of policy or limitation upon the powers and duties of the general officers and agents of the company that would exempt the company from liability in this case. As the record stands, the question made by counsel in this behalf is not fairly presented, and we intimate no opinion respecting it.

The court erred in sustaining the demurrer to the complaint. The judgment must be reversed, and the case remanded.