
    JOHN PRENTICE, Plaintiff, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Defendant.
    
      Decided February 4, 1878.
    LIFE INSURANCE.
    In this case the provisions of a life insurance policy, which declared the claim thereunder forfeited, unless the owner of the policy should, upon the death of the insured, forthwith notify the company in writing, &c., of the fact, indicating the nature of the proof of death, to be furnished, and unless full proofs should be presented within twelve months from the time the loss occurred, —were
    
      Meld inopei'ative on the following grounds: The general agent of the company, an officer authorized to make such representations, stated to the owner of the policy, upon his departure for Europe, and upon his offer to pay certain premiums which would become due in his absence, that the company had agents who would know of the death of the insured before the owner could, “ and that there was no trouble a.t all in regard to the whole thing.”
    The insured died some time after the return of the owner of the policy, but the fact of his death did not come to the knowledge of the owner till more than twelve months thereafter, and the above provisions of the policy were not complied with. The premiums were regularly demanded by the company and paid in good faith by the owner, after the death of the insured, and until the owner’s knowledge thereof.
    
      Meld also, that the owner could recover ■ the premiums paid as above.
    Before Curtis, Ch. J., and Freedman, J.
    
      Motion for judgment on a verdict directed for plaintiff subject to the opinion of the court at general term.
    The action is upon a policy of insurance issued by the defendant, bearing date August 10, 1867, whereby it insured the life of Edwin W. Mitchell, in the sum of $5,000, for his own benefit, upon certain terms and conditions which were therein specified. The policy was assigned to the plaintiff December 9, 1867.
    Upon the back certain conditions were printed, which by the terms of the policy are made “ part and parcel thereof.” One of these conditions prescribes that the company shall be notified forthwith in writing at the office in New York, by the policy owner, of the death of the person whose life is insured, and indicates the kind of proof of the death of the assured which shall be furnished to the company, and another declares that “full proofs shall be presented within twelve months from the time the loss occurs, or the claim will be forfeited.”
    Mitchell died at Montclair, N. J., on July 27, 1873. On August 10, 1873, and again on August 10,1874, the plaintiff, in ignorance of such death, paid to the defendant the premium which would have been payable on those dates, respectively, had Mitchell then been living, and continued the policy in force. The company received these payments in ignorance of his death. No notice of Mitchell’s death was given to the company until the latter part of June, 1875, when plaintiff first heard of his death, and no proofs of death in conformity with the conditions of the policy, or otherwise, were furnished to it until July 9, 1875, and no objection was made until October, 1875.
    The answer of the defendant admits the issuing of the policy, the death of Mitchell while it was in force, and the payment of two annual premiums after his decease ; but it avers that the company received the two payments, and issued the usual renewal receipts therefor in ignorance of his death, fully believing that he was then alive, and that no notice or proof of his death was submitted to, or received by it, until more than twelve months after his death. It also admits demand of payment of the sum insured by the policy, and of the two jjremiums paid as above stated, and that the same have not been repaid, but it avers an -offer to return said two premiums, and a willingness to return the same. In 1873 the plaintiff was informed Iby the general agent of the company, C. L. North, •with whom had been all his dealings, that there would "¡be no trouble about the question of repayment of premiums in regard to Mr. Mitchell dying prior to the time the premiums became due. He said to the plaintiff that the company had agents who would know of the death before he could, and that in case he advanced any money it would be returned ; and that there was no trouble at all in regard to that whole thing.
    On the trial, the court directed a verdict for the plaintiff for the sum insured with interest, and the two premiums with interest, subject to the opinion of the general term.
    Johnson, Cantine & Deming, attorneys, and Henry W. Johnson, of counsel, for defendant, urged :
    —I. The matter printed on the back of the policy constitutes a part of the contract of insurance, and the same effect must be given to it that it would have if incorporated in the body of the instrument (Worsley v. Wood, 6 T. R. 710; Mut. Benefit Life Insurance Co. v. Miller, 2 Ins. L. J. 109; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Patch v. Phoenix Mut. L. Ins. Co., 44 Vt. 481; Brawnstein v. Accidental Death Ins. Co., 2 Bigelow, 610; Bliss on Life Ins. § 58 and note).
    
      II. From the language of the policy it is manifest that three things must concur to make the liability of the company absolute, viz : 1st. The death of the person whose life is insured. 2nd. The giving of due 'notice and the presentation of proofs of such death, in accordance with tlpe requirements of the policy. 3rd. The lapse of three months from the time such proofs are presented.
    III. The conditions printed on the back of the policy embrace two requirements in regard to proofs of death: 1st. That they shall contain as particular an account of the cause, time and place of death and the circumstances attending the same as the nature of the case will admit, &c., &c. 2nd. That these proofs shall be presented to the company within twelve months, after the death occurs.
    IV. The limitation of time within which the proofs, of death rnqst be presented is a valid and binding stipulation, and a compliance with it is a condition precedent to a right of action on the policy. There is no difference in principle between this condition and' a condition in a policy of fire insurance limiting the time within which an action must be brought, or in a life insurance policy limiting the time within which it must be surrendered to entitle the holder to a “paid up ” policy, or in a policy of insurance against accidents limiting the time within which proof of the accident must be furnished, or in a life policy requiring proofs of death to be presented, but without limiting the time of their presentation. In such cases it has been expressly held that the condition must be complied with, or the plaintiff cannot recover (Bliss on Life Ins. 2d Ed. 600; May on Insurance, 583; Riddlesbarger v. Hartford Ins Co., 7 Wall. 386; Roach v. N. Y. and Erie Ins. Co., 30 N. Y. 546; Ripley v. Ætna Fire Ins. Co., Id. 136; Ames v. N. Y. Union Ins. Co., 4 Kern. 255; Smith v. Conn. Mut. Life Ins. Co., 4 Bigelow, 421; Schumacher v. Manhattan L. I. Co., 3 Ins. L. J. 455; Gamble v. Accident Assurance Co., 4 Irish R. 204; O’Reilley v. Guardian Mut. Life Ins. Co., 60 N. Y. 169).
    Y. It is clearly no excuse for a failure to present proofs of loss within twelve months, that the plaintiff was ignorant of the death of the party whose life was insured. The requirement in the conditions is absolute as to time, and the time begins to run from the occurrence of the death, and not from the time the beneficiary has knowledge of the fact. It would have been entirely competent for the parties to have agreed that this period should not commence to run until knowledge of death was brought home to the beneficiary. But such is not the contract; and for the court to so interpret it would be doing violence to its plain terms, and might wholly deprive the defendant of the benefit of the stipulation.
    VI. The plaintiff’s counsel on the trial treated the case as one involving a question of forfeiture merely. A party cannot forfeit a right of action which he has never acquired. From what has already been stated it is clear that the right of action upon the policy does not accrue until three months after proofs are furnished according to the terms of the contract.
    VII. The plaintiff, on the trial, in support of the allegations in the complaint that the defendant, on August 10, 1873, and also on August 10, 1874, by its agreement duly made, for value received continued the said policy in force for a period of one year from those dates respectively, introduced the renewal receipts given on those dates. It is alleged in the answer, and was proven on the trial, that these renewal receipts were given in ignorance of the death of Mitchell. But whether this were so or not, they could not have the effect to continue the policy in force after his death. The company could not insure a life which did not exist. (Simpson v. Accidental Death Ins. Co., 2 C. B. (N. S.) 257; Lafavour v. Ins. Co., 1 Phila. 558; 2 Bigelow, 158).
    W. P. Prentice, of counsel, for plaintiff, urged :
    —I. Ho defense is attempted on the merits, and it appears from the admissions of the defendant that it has had no injury from any delay on plaintiff’s part. Therefore it cannot now he permitted to avail itself of a purely technical defense to avoid its contract by claiming as a breach of condition entitling it to a forfeiture the omission to file full proofs of death within twelve months after the death of the insured, when it appears that such omission was induced by its own acts and representations.
    II. As to doctrine of forfeiture, waiver, &c., applicable to this case, see Stokes v. Recknagle, 38 Superior Ct. 383; Moses v. Bierling, 31 N. Y. 464; Leslie v. Knickerbocker Ins. Co., 63 N. Y. 27; Stolle v. Ætna F. & M. Ins. Co., 6 Ins. L. 784; Hermann on Estoppel, 433; Carpenter v. Sillwell, 12 N. Y. 73; Isham v. Buckingham, 49 Id. 216; Home Life Ins. Co. v. Pierce, 5 Bigelow, 100; Mayor v. Hamilton Fire Ins. Co., 39 Id. 46. The condition claimed by the defendant is a condition subsequent, not precedent (Hincken v. Mut. Ben. Life Ins. Co., 6 Lans. 21; 50 N. Y. 657). It is qualified by the preceding condition, the 6 th, that: " As soon as possible a particular account of the cause, time and place of death, and the circumstances attending the same, as the nature of the case will admit,” should be delivered to the company. This condition was in an obscure place, on the back of the policy, and notice was not, as matter of fact, brought home to the plaintiff (McNeilly v. Continental L. I. Co., 66 N. Y. 24). Time is not to be deemed of the essence of the contract, because contrary to the intention of the parties and only to be assumed from doubtful terms (Dillon v. Masterson, 39 Superior Ct. 133). Every intendment and fair and legitimate presumption is for the plaintiff (Fairfax v. N. Y. C. R R., 40 SuperioCt. 128). Conditions subsequent are not favored in law, and “ a vigorous exaction of them is a species of summum jus in many cases hardly reconcilable with conscience.” Therefore it is that all the circumstances are to be taken into account; and as it appears the defendant has had no injury, the failure of notice can not work a forfeiture (Hoag v. McGinnis, 22 Wend. 163; Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81; Bradley v. M. Ben. L. Ins. Co., 45 N. Y. 422; 2 Pars. Cont. 662; 4 Kent Com. 129; Georgia Home Ins. Co. v. Kinnier, Sup. Ct. of Virginia, Ins. L. Journal, 497). In Southern Life Ins. Co. v. Wilkinson, 5 Big. Ins. 75, it was held not error for the court to refuse to charge that a delay for several months to give notice of the death was a failure, to give notice in a reasonable time. In Pennell v. Chandler, 5 Ins. L. J. 108, held that notwithstanding there was no formal proof filed, plaintiff was entitled to have his claim (See Carter v. Scargill, 10 Q. B. 564).
    III. The defendant agreed to continue the contract until August 10, 1875, and received its payments therefor ; it was therefor immaterial when it received proofs of death, if only prior to August 10, 1875, as was the case (Mayor, &c. v. Hamilton Ins. Co., 39 N. Y. 45; Mix v. Andes Ins. Co., 9 Hun, 399; Ames v. N. Y. Union Ins. Co., 14 N. Y. 253).
    IV. If it be held that the final condition on the back of the policy,—i. e.: “Full proofs shall be presented within twelve months from the time the loss occurs, or the claim will be forfeited,”—is still binding and the acts of the defendant in the representation of the general agent in the notices to pay premiums in 1874 and 1875, and in continuing the contract of insuránce upon the terms of the renewal, do not constitute a waiver on defendant’s part; still the question remains, viz : was not this condition a penalty to be construed as that in Hoag v. McGinnis, 22 Wend. 163, or in Dakin v. Williams, 17 Wend. 447, or in Devins v. Cummins, 3 Johns. 299, and the defendant left to set off any damages it may have sustained ? In Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81, it was held that such conditions in a policy need not always be complied with. So, in the case of a guarantee, it has been said that although notice to the guarantor be delayed for a long period—for months, and possibly for years—and it was nevertheless clear that the guarantor could have derived no benefit from an earlier notice, the delay would not impair his obligation (2 Pars. Cont. 662, and cases cited).
   By the Court.—Curtis, Ch. J.

—The agreement between the parties to the policy required that in case of the death of the person insured, notice in writing should forthwith be given to the insurer, and further that full proofs be presented in twelve months from the time the loss occurs, .or the claim would be forfeited. Payment by the company was conditioned upon compliance with these requirements of the policy.

If persons choose to enter into contracts of this nature, and subject to these conditions, it is no reason, because hardships and loss result, that courts should disregard well-established legal principles in interpreting and enforcing them. Where parties have distinctly agreed, their contracts must be sustained and performed (Foot v. Ætna Life Ins. Co., 61 N. Y. 571; Ritzler v. World Ins. Co., 42 N. Y. Super. Ct. 409).

The position of the defendants,—that the non-compliance of the plaintiff with these conditions of the policy, exonerates them from liability to pay the loss,— is tenable, unless by some act on their part, they have made these conditions inoperative.

The testimony shows that the plaintiff had two other policies on the life of the deceased, one of $5,000 and one of $2,500, that he dealt entirely with the general agent of the defendants, and who as such indorsed the checks drawn by plaintiff for premiums to the defendant’s order. The plaintiff, in answer to a question, asking him if, at any time prior to 1874, he had any conversation with the officers of the defendants, or their representatives, in relation to notices or proofs of death, testified as follows :

“ I had, with the general agent, C. L. North, in 1872, two or three days before I went to Europe ; as there were three policies which came due within the next six weeks subsequent to the time of my going away I spoke to him on the subject; he said in regard to paying them in advance, that there was no trouble about that. I raised the question in regard to Mr. Mitchell dying prior to the time the premiums became due ; he said that the company had agents who would know of the death before I could, and that in any case, if I advanced the money, it would be returned, and that there was no trouble at all in regard to that whole thing; I went to Europe on July 3, 1872; I returned in the latter part of October, 1872.”

After the decease of the insured, in 1873, the defendants continued to call upon the plaintiff for two years, by notices, to pay the annual premiums upon the policy, which he did.

Here was a statement made to the plaintiff, when about to leave for Europe, by the general agent of the company, that by its terms and language would naturally throw the plaintiff off his guard in watching the life of the deceased. The statement that the company had agents who would know of the death of the insured before the plaintiff would, “ and that there was no trouble at all in regard to the whole thing,” was equivalent to saying, “we shall know about his death before you, and in ample time, and there is no occasion to give yourself any trouble about it.”

It was reasonable, and perfectly consistent with these representations, that the plaintiff should feel that he need not deal with the company thereafter, at arm’s length on this point, and that he should respond to their calls for the annual premiums. It is not disputed by the defendants, that this representation was made to the plaintiff, and that thereafter he should continue his payments on all these policies without further inquiry in response to their call, is indicative of his reliance upon it. The evidence does not show that the company had such agents as the general agent represented to the plaintiff they had.

The question arises as to which party under these circumstances shall bear the loss. It would be manifestly unjust that the defendants should mislead a policy owner by their representations, into the omission of an act by which the policy became forfeited, and that they could profit by their own breach of faith. It was said upon the argument, that this case was “ sui generis, and that never before was there such an experience on the plaintiff’s or defendant’s part.” The concurrence of facts presented may be new, but the principle of law to be invoked and applied is familiar and elementary.

There also appears to be an experience on the defendant’s part in Leslie v. Knickerbocker Life Ins. Co. (63 N. Y. 27), quite analogous to the present. In that case the plaintiff’s agent, not knowing when the premium fell due, applied before default at defendants office, to a person standing at the cashier’s desk, to ascertain it; this person did not give the information, but promised to send notice. This promise was not performed, and the company claimed, when he again called, which was after the premium fell due, that the policy had in the interval elapsed. The defense of the company was not sustained, the court saying, per Forger, J., that even if there was no primary hostile purpose in the action of one, who may in a certain event, become entitled to a forfeiture or other right arising from the non-performance of a condition, if by his act he has induced another to omit strict performance, he may not take the benefit or exact the forfeiture.

This principle is conclusive in governing the present case, unless there was a lack of authority on the part of the general agent to make the representations that he did to the plaintiff, in respect to notice of the death of the insured. Although the second condition of the policy declares void certain acts unless signed by the president and secretary, it does not extend to representations made by its general agent. No claim was made on the argument that the general agent had acted beyond the scope of his authority. There is nothing in the case to show that the policy owner had reason to suppose that the general agent of the company, with whom he had all his transactions, and who indorsed the checks drawn by him to the order of the company, had powers other or different from those he assumed to have and exercised.

Judgment should be ordered for the plaintiff upon the verdict, with costs.

Freedman, J., concurred.  