DocketNumber: 27855.
Judges: Broyles, Guerry, MacIntyre
Filed Date: 3/15/1940
Status: Precedential
Modified Date: 10/19/2024
1. "An unauthorized act or transaction by an agent in excess of his authority becomes binding and obligatory upon his principal, if the latter, with knowledge of the facts, receives and retains the benefit thereof, since such acceptance of the benefit amounts to an implied ratification of such act, whether the principal intends thereby to ratify it or not." Kelly v. Carolina Life Insurance Co.,
2. "While ratification of an unauthorized act of an agent is not to be presumed, the acts of a principal are to be liberally construed in favor of an adoption of the acts of the agent, and when the unauthorized act of the agent is done in the execution of power conferred, but in excess or misuse thereof, a presumption of ratification readily arises from slight acts of confirmation, or from mere silence, or acquiescence, or where the principal receives and holds the fruits of the agent's act. 2 C. J. §§ 657, 658." Kelly v. Carolina Life Insurance Co., supra. *Page 379
3. "While an insurance agent is without authority to bind his principal by any waiver of the terms of the policy after a forfeiture has already taken place, . . yet a forfeiture of the policy for nonpayment of a premium when due is waived by an unconditional acceptance of payment of the premium by the principal after such default." Kelly v. Carolina Life Insurance Co., supra.
4. The petition alleged facts, which, if proved would warrant submitting to a jury the question whether the receipt and holding of the past-due premiums, together with the premiums for advance payments from January 29, until after the death of the insured on February 9, amounted to a waiver of the requirement as to proofs of insurability, and was a ratification of the acts of the collecting agent in receiving the past-due and future premiums.
The petition alleged that such conduct on the part of the defendant waived the requirements of the policy providing for revival upon evidence of insurability. The policy provided: "Should this policy become void in consequence of nonpayment of premium, it may be revived upon payment of all premiums in arrears and the presentation of evidence of insurability satisfactory to the company." It further provided: "No person except the president, secretary or assistant secretary, has power to modify, or, in the event of lapse, to reinstate this policy or to extend the time of the payment of the premium. No agent has power on behalf of the company to waive any forfeiture." It was further alleged that the company retained the premiums paid until after the death of the insured, when it offered to return the premiums paid to the beneficiary who brings this action. It was alleged that such conduct waived the requirement as to proof of insurability and reinstated the policy.
"In the absence, however, of controlling statutory contract, or charter provision, or by-law, the general rule is that an insurer which receives, accepts, and retains past-due premiums, assessments, or dues, paid subsequent to the due date and the expiration of the days of grace, if any, renews the contract and waives the forfeiture for nonpayment, provided such acceptance is unconditional and the facts are known, since an insurer which accepts past-due premiums or assessments, in violation of its own regulations, can not invoke the same in order to avoid liability." 3 Couch Ins. Law, 2271, § 687. In Piedmont Arlington Life Insurance Co. v. Lester,
We think the court erred in sustaining the motion to strike.
Judgment reversed. MacIntyre, J., concurs.
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