Dunn v. Insurance Co. , 69 N.H. 224 ( 1897 )

Although premiums were payable at the home office of the defendants, they were to be accepted "when paid to agents of the company in exchange for its receipts, signed by its president or secretary." In other words, they were payable either at the home office or to the company's agents having proper receipts for the same. It was essential that each person insured should definitely understand which method of payment was adopted in his case; and if it was the latter method, whether the agent was to call on him for payment, or he was to tender payment to the agent wherever found, or at some designated place. Uncertainty as to this matter would necessarily tend to prevent the making of payments when due and subject the insured to the liability of unwittingly losing his insurance. It is not presumed that the defendants intended that there should be such liability. On the contrary, it appears that they attempted to remove the uncertainty in respect to their New Hampshire business, at least, by providing their agents residing in the state with receipts for premiums and making the collections through them. The sending of the receipts to the agents, in connection with the provisions of the contract, tended to show that the defendants authorized the agents to make all necessary arrangements with the insured for the payment of the premiums to the agents. It would justify the jury in finding that Roberts was authorized to direct the insured in this case not to send the premiums becoming due upon her policy to the home office, but to pay them to him in exchange for receipts with which he would be furnished; and further, to promise, in behalf of the defendants, to call on her in season to enable her to make the payments when due. There was also evidence tending to show that the agents were authorized to allow some grace in the making of payments. The defendants had no means of knowing whether the premiums were paid promptly except from the agents' reports, which were made on the tenth day of each month for the preceding month. This afforded the agents an opportunity to grant some indulgence. In the case of one policy, at least, the general agent accepted the payment of overdue premiums several times without question. This evidence was competent, in connection with the other evidence, to show the defendants' course of business. Roberts' denial that he had authority to collect overdue premiums was not conclusive on the point. The jury might find, from a consideration of all the evidence, that Roberts' assurance to the insured that her policy would not be avoided by his neglect to seasonably present the receipts to her for payment, was authorized by the defendants. Such neglect would be his fault and, as it would occur in the execution of apparent authority conferred by the defendants, it would be attributable to them. Deming v. Railroad, 48 N.H. 455, 472; Nixon v. Brown, 57 N.H. 34. Even if he attempted to extend grace beyond the limits of his authority, the defendants instead of the insured should suffer the loss occasioned thereby; for, "when one of two innocent persons is to suffer, he ought to suffer who misled the other into the contract by voluntarily placing the agent in a situation of apparent authority." The insured relied upon Roberts' representations in regard to the payment of premiums. She had the money on hand at the appointed time and kept it for some time afterward. If it was found that Roberts had authority to make the representations and that the insured relied upon them, the defendants would be estopped from setting up the provisions of the policy relating to forfeiture, to defeat the plaintiff's action. Appleton v. Insurance Co., 59 N.H. 541, 544, 545.

The evidence excepted to was competent and, in connection with the other evidence, was sufficient to warrant the denial of the defendants' motion for a nonsuit.

Exceptions overruled.

PARSONS, J., did not sit: the others concurred.