Gleed v. Lincoln National Life Insurance

NOURSE, P. J.— In a trial by jury the plaintiffs had a verdict for the sum of $3,000 based upon a policy of insurance on the life of F. C. Gleed, deceased. The plaintiff Gleed was the widow and the plaintiff Boggs was an assignee of deceased.

The appeal from the judgment is based upon the ground that the policy lapsed prior to the death of the insured because of nonpayment of the premium then due. The respondents defend the judgment on the ground that the time and manner of payment under the strict terms of the policy was waived, and that defendant is estopped from contesting the policy on that ground.

The contested policy was issued on May 12, 1936, through one Hansen, a duly authorized soliciting agent, and by him delivered to the insured. Thereafter, until the death of the insured, Mrs. Boggs paid all the premiums to Hansen—sometimes in cash and sometimes by her personal check. For each payment Mrs. Boggs received a receipt signed “Edward F. Hansen, Agent” and containing the policy number and the amount received. On June 12, 1942, in accordance with her [215]usual custom, Mrs. Boggs gave to Hansen her check drawn in his name to cover the premium due on May 12, 1942. Hansen deposited the cheek in his own bank and drew his check in favor of appellant which was deposited for collection by appellant and returned unpaid because of insufficient funds in the Hansen account. On June 18th the appellant notified Hansen that his check had been dishonored, and that the company would hold it until it received a new remittance. On the same day appellant mailed a letter to the insured advising him that the policy had lapsed and requesting an application for reinstatement. The insured died early the following morning and this letter was found unopened in his home.

Appellant now contends that Hansen was not its agent, but that he was acting in the capacity of broker only for Mrs. Boggs, that the express terms of the policy permitted payments of premiums to be made “to an authorized agent of the Company only in exchange for the Company’s receipt therefore signed by the President or the Secretary,” that the check of Hansen was received for collection only, and did not constitute a payment of the premium. In the opening brief the appellant states: “From the facts in the instant case it is clear that no payment was made to the insurance company by the insured or his assignee in the manner specifically set forth in the policy for the payment of premiums, and that in the absence of a specific waiver of this provision of the policy, the policy lapsed on May 12, 1942, for non-payment of premium. ’ ’ Respondents concede the statement as to the manner in which payments of premiums were made, but defend the judgment upon the ground that the appellant waived these terms of the policy and is estopped to deny that Hansen was its authorized agent to collect and receipt for the premiums as paid.