Insurance Company v. Wolff
95 U.S. 326

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U.S. Supreme Court

Insurance Company v. Wolff, 95 U.S. 326 (1877)

Insurance Company v. Wolff

95 U.S. 326

Syllabus

1. A. took out a policy of insurance upon the life of her husband. The premium was payable annually on the first day of November. The policy stipulated for the payment of the amount of the insurance within sixty days after due notice and proof of the death of the insured, subject, however, to certain express conditions. One of these conditions provided that if the premiums were not paid on or before the days mentioned for their payment, the company should not be liable for the sum insured, or any part of it, and that the policy should cease and determine. Another condition provided that if the insured resided in any part of the United States south of the 33d degree of north latitude, except in California, between the 1st of July and the 1st of November, without the consent of the company previously given in writing, the policy should be null and void. The policy declared that agents of the company were not authorized to make, alter, or discharge contracts or waive forfeitures; but the company, notwithstanding this provision, sent renewal receipts signed by its secretary, and their use, when countersigned by its local manager and cashier, was subject entirely to the judgment of its local agent. It was his habit to give such receipts whenever the premiums were paid after the time stipulated. His mode of dealing with persons taking out policies at the local office, his use of renewal receipts, his acceptance of premiums after the day on which they were payable, were all known to the home company, and it retained the premiums thus received. The insured died at the City of New Orleans on the 11th of November, 1872. Between the 1st of July and the 1st of November of that year he had resided at that city, which is south of the 33d degree of north latitude, without the knowledge or the previous consent in writing of the company; and the annual premium due at the latter date was not paid until ten days thereafter. A friend then paid it to the agent, and took from him a renewal receipt, but made no mention of the residence of the insured, who died the same day from yellow fever contracted in that district. The agent, on learning the fact, at once informed the company, and was immediately instructed by telegraph to tender the premium to the party paying, and demand the receipt. He did so, but the tender was not accepted, nor the receipt surrendered. Held: 1. that the company, by the agent's receipt of the premium, waived the forfeiture for nonpayment at the stipulated time, but not the forfeiture incurred by the residence of

Page 95 U. S. 327

the insured within the prohibited district; 2. that the company, having promptly tendered the return of the premium and demanded the surrender of its receipt, was not liable on its policy.

2. A waiver can only be justly claimed by the assured where the course of dealing by the company has been such as to induce his action, and the company should be apprised of the facts which create the forfeiture, and of those which will necessarily influence its judgment in consenting to waive it.

The Globe Mutual Life Insurance Company of New York, on the 5th of November, 1869, issued to Eliza Garber a policy of insurance for $5,000 upon the life of her husband, commencing on the 1st of that month. The premium was payable annually on the 1st of November. The policy stipulated for the payment of the amount of the insurance within sixty days after due notice and proof of the death of the insured, subject, however, to certain express conditions. One of these conditions provided that if the premiums were not paid on or before the days mentioned for their payment, the company should not be liable for the sum insured or any part of it, and that the policy should cease and determine. Another condition provided that, if the insured resided in any part of the United States south of the 33d degree of north latitude, except in California, between the 1st of July and the 1st of November, without the consent of the company previously given in writing, the policy should be null and void. And the policy declared that agents of the company were not authorized to make, alter, or discharge contracts, or waive forfeitures.

The insured died at the City of New Orleans on the 11th of November, 1872. Between the 1st of July and the 1st of November of that year, he had resided at that city, which is south of the 33d degree of north latitude, without the previous consent in writing of the company, and the annual premium due on the first of that month was not paid on or before that day. Due notice and proof of his death having been given to the company, and payment by it refused, suit was brought by Mrs. Garber in the Circuit Court of St. Louis County, whence it was removed, on the petition of the company, to the Circuit Court of the United States for the Eastern District of Missouri. Judgment was rendered for the plaintiff, and the cause removed here by

Page 95 U. S. 328

writ of error. Mrs. Garber died and Wolff, her executor, was made the defendant in error.

The other facts are stated in the opinion of the Court.

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