Lally v. Insurance Co.

The evidence produced by the plaintiff was sufficient to authorize a finding that the defendant had led the insured to believe that payment of her weekly premiums at the time stipulated for in the policy would not be insisted on. It had in effect said to her: "You need not pay on the day named. The payments will be received if made when ten weeks overdue." Having made this representation, it could not complain of her acting upon it, unless it had retracted the statement and given her reasonable opportunity to act before the retraction was to be effective. Appleton v. Insurance Co., 59 N.H. 541, 546.

It is conceded that such is the law of this state; but it is urged that, as the insured was in good health when the overdue payments were received and critically ill when the tender in question was made, the circumstances were so changed that the former waiver did not apply. This argument is based upon an erroneous view of the nature of the transaction. If the question was one of reinstating a lapsed policy, there would be force in the argument. But that is not the case presented here. As the case was tried and the verdict found, the policy was always in force. The question was solely one of the time for paying an existing obligation. There was no evidence that the waiver which the jury found was based upon any condition as to the health of the insured when the payments were made. To hold that under such circumstances the insurer might, without previous notice, insist upon the letter of its contract when illness should overtake the insured, would open the door to the fraud the Appleton case guards against.

The principle applies with especial force in cases like the present one. The insured was paying a premium of thirty-five cents week on a life policy of $189. She was apparently a working girl, belonging to that class among whom this kind of insurance is usually effected. The parties insured are not persons skilled in business, and the annual premium is nearly ten per cent of the sum insured. There seems to be no just reason for limiting the rule that in such a case the insurer is to be held to the utmost good faith and fair dealing.

The plaintiff having produced some substantial evidence of a course of dealing whereby the defence relied upon "had been waived or abandoned so that it was no part of the contract sued on" (Salvail v. Foresters, 70 N.H. 635), the motion for a nonsuit was properly denied.

A witness called by the defendant testified that the deceased had been told that the previous course of dealing would not be continued. From this it is argued that the rule of the cases before cited and that of Dunn v. Insurance Co., 69 N.H. 224, cannot apply here. Whether, after a plaintiff has made a prima facie case, verbal testimony produced by the defendant may be of so conclusive a character that he would be entitled to a verdict as matter of law may be a doubtful question. In Pillsbury v. Pillsbury,20 N.H. 90, 97, it was said: "The evidence upon which the nonsuit was moved came from the party himself who moved it. A nonsuit is not granted in such cases, for the plaintiff is not obliged to yield to the evidence, and is entitled to have it weighed by the jury?" But in State v. Harrington,69 N.H. 496, it was held that a verdict should be directed for the plaintiff when "there was no evidence which would support a verdict in favor of the defendants."

Conceding for the purposes of the present case that the rule is that the producer of the verbal testimony of witnesses may insist upon its conclusiveness as matter of law, the result here will be the same. There was evidence tending to cast doubt upon the testimony of the collector. It appeared that after the alleged interview the insured sent premiums to the defendant's office, and the tender of payment was there received conditionally, but without any mention being made of the alleged termination of the contract. The jury might well find from this transaction that the collector's interview did not take place, or was not authorized by the defendant; otherwise the offer to pay would have been declined for the reason above indicated. In addition to this, it appeared that the witness was an employee of the party calling him. He was not wholly disinterested, and was testifying to a conversion with a person who was dead when the testimony was given. If there can be cases where the burden of proof is conclusively borne, as a matter of law, by the production of verbal testimony, this is not one of that class. The witness was interested, he testified to what he knew could not be directly contradicted, and there were circumstances in evidence which tended to contradict his story. The plaintiff was "entitled to have it weighed by the jury," and the direction of a verdict was rightly refused.

The exception to the denial of the motion to set aside the verdict as against the law and the evidence presents no question of law.

Exceptions overruled.

All concurred.