Boehen v. . Williamsburgh Insurance Co. , 35 N.Y. 131 ( 1866 )

The case is not made up in such a form as to present any question for review except the question arising out of the refusal of the referee to order a nonsuit; and this question requires the court to examine the evidence relied upon to show a waiver of one of the conditions of the policy of insurance, which provides, in express terms, that "no insurance, whether original or continued, shall be considered as binding until the actual payment of the premium." This clause, in policies of insurance, has been before the court in several cases, and has received a judicial construction which leaves no room to question the authority of a general agent to make a valid insurance without exacting prepayment of the premium. It was so held in Goit v.The National Policy Insurance Company (25 Barb., 189). In that case, however, the proofs showed that the agent agreed to give credit until he made his returns to the company; and, after the fire occurred, he accepted payment of the premium. The same point was decided in this court in The Trustees of the First BaptistChurch v. The Brooklyn Fire Insurance Company (19 N.Y., 305), and in Sheldon v. The Atlantic Insurance Co. (26 N.Y., 460), where the general agent sent a certificate of renewal by mail to the plaintiff, with a statement that the premium charged was higher than usual, and saying: "Should you decline the policy, please return it by mail; if you retain it, please send me the premium." The court decided that this was evidence which would authorize a jury to find that there was a waiver by the defendants of the prepayment of the premium. But inWood v. The Poughkeepsie Mutual Insurance Company (32 N.Y., 619) the plaintiff was nonsuited and the judgment of nonsuit sustained in this court, upon the ground that there was no evidence to authorize the jury to find such a waiver. The case states that the agent had delivered over the certificate of renewal to the plaintiff's clerk in the plaintiff's absence, oncondition that when he came home he should pay the premium if he accepted, and return the policy if he declined it. The plaintiff neither paid the premium nor returned the policy. Judge PORTER, who delivered the prevailing opinion, says that the agent, on leaving the policy with the plaintiff, made it an express condition that the premium should be paid, or the policy returned; but that the plaintiff undertook to appropriate the policy in disregard of the condition, and without the consent of the company. This opinion was concurred in by a majority of the judges. Judge DAVIS wrote a dissenting opinion, in which he referred to certain portions of the evidence as indicating an assent on the part of the agent to the plaintiff's retaining the policy without prepayment of the premium. He was of opinion that the prior dealings between the plaintiff and agent of the company, in respect to other policies where credit had been given for the premiums, should have been admitted in evidence, from which the jury might have inferred a waiver of prepayment of the premium. He thought it was difficult to perceive any substantial distinction between the case in hand and that of Sheldon v.The Atlantic Fire Insurance Company (26 N.Y., 460). Two of the judges concurred with him.

It is not necessary to say, nor do I perceive, that the two cases above referred to are in conflict. The principle decided is the same in both cases; the disagreement among the judges having arisen more from the different impressions which the same state of facts left upon their minds, than from any difference of opinion as to the law of the case.

In the case at bar, so far as the evidence discloses the circumstances, the certificate of renewal was delivered by the agent of the company without qualification or condition; and there is some evidence which tends to prove that its existence as a valid insurance was recognized by the president during the subsequent negotiation for an increase of insurance upon the same property. The evidence, taken together, leaves but little doubt that the certificate was delivered to the plaintiff's agent without exacting prepayment of the premium, with an understanding that it was to be paid on demand, or when the question of an additional insurance was settled by the company.

As a general rule, agents of insurance companies should not deliver over policies without payment of the premiums, if they do not intend to give a credit.

The mere fact of such delivery, without condition, raises a presumption that a short credit is intended. The delivery of the policy in Wood v. Poughkeepsie Insurance Company was held to be conditional, from the language of the agent and the circumstances attending the transaction; otherwise the company would have been held liable for the plaintiff's loss. Judge PORTER observed, in that case, that the law would have implied a waiver, if the policy had been delivered by the agent without requiring payment of the premium, and had been accepted by the plaintiff as a complete and executed contract.

In the case at bar there is no ground upon which to predicate a conditional delivery of the certificate of renewal, except what arises out of the terms of the original policy, and we have seen that an actual and unconditional delivery of the policy, without requiring prepayment, will be construed into a waiver, notwithstanding the terms of the written policy. I am satisfied that, in a great majority of cases, such is the understanding of both parties when a policy is delivered over to the insured without exacting payment of the premiums, and that the rule, as stated by Judge PORTER in Wood v. ThePoughkeepsie Insurance Company (supra), is correct, and should be applied to this case.

The judgment should be affirmed.

Affirmed.