
    *Piedmont & Arlington Life Ins. Co. v. McLean.
    January Term, 1879,
    Richmond.
    Fire Insurance — Forfeiture of i’oliey Waiver l>y A seat. — The assistant secretary of a life insurance company held to have authority to waive the forfeiture of a policy for the failure to pay the premium on the day it was due, and to reinstate the policy.
    This is the sequel of the case of McLean v. Piedmont & Arlington Life Ins. Co., 29 Gratt. 361. The judgment was then reversed because the court below had excluded parol evidence tending to prove a waiver of the forfeiture of the policy in which the action was founded. After the cause went back to the circuit court it came on for trial again on the Oth of February, 1877, when there was a verdict and judgment for the plaintiff. And the company obtained a writ of error and supersedeas from a judge of this court.
    Two exceptions were taken by the defendant. When the evidence had been introduced. the plaintiff moved the court for an instruction, which was given; and then the defendant 'moved the court to give an instruction, which the court gave with an addition thereto; to which addition, and the refusal to give the instruction asked by the fendant without said addition, the defendant excepted. These instructions are as follows:
    “If the jury believed from the evidence that Darrow failed to pay the quarterly premiums-that fell due on the 22d of October, 1874, and the 22d January, 1875, on the days when they became due, and if they believe that by reason thereof he had forfeited his right *to the policy; but if they further believe from the evidence that the defendant, by its officers, waived or agreed to' waive any claim which it might have that said policy had become forfeited for nonpayment of the premiums due on those days, and agreed to receive the said back premiums from Darrow or the assured, and that the said back premiums were paid on , the.faith of this agreement, then they must ' find for the plaintiff.”
    Which instructions the court gave; and thereupon the defendant moved the court to instruct the jury as follows:
    “If the jury believe from the evidence that Darrow neither paid nor tendered payment of the premiums due on the policy in suit October 22, 1874. and January 22d, 1875, until January 30th. 1875, then the jury must find for the defendant, unless they find that the forfeiture thereby occasioned had been waived by the company, or by some officer authorized to make such waiver; and if such waiver was conditional, then that said conditions, the same being lawful, have been fulfilled.
    “The jury are further instructed that the burden of proof is upon the plaintiff to show that the failure to pay any premium on the day it fell due was excusable under the conditions of the policy, or was subsequently waived by the defendant.
    “If the jury believe that the reinstatement of the policy on the receipt of lapsed premiums was upon the condition that the insured was in good health at the time of such reinstatement, they must find for the defendant, if there is evidence tending to show that Higgins was not in such health, and no evidence to the contrary.”
    Which the court modified by adding the following words:
    *“Tf the jury believe from the evidence that Darrow neither paid nor tendered payment of the premiums due on the policy in suit October 22d, 1874, and January 22d, 1875, until January 30th, 1875, then the jury must find for the defendant, unless they find that the forfeiture thereby occasioned had been waived by the company, or by some officer authorized to make such waiver, the assistant secretary, J. J. Hopkins, in this case, being so authorized; and if such waiver was conditional, then that said conditions, the same being lawful, have been fulfilled.
    “The jury are further instructed that the burden of proof is upon the plaintiff, to show that the failure to pay any premium on the day it fell due was excusable under the conditions of the policy, or was subsequently waived by the defendant.
    “If the jury believe that the reinstatement of the policy, on the receipt of lapsed premiums. was upon the condition that the insured was in good health at the time of such reinstatement, they must find for the defendant, if there is evidence tending to show that Higgins was not in such health, and no evidence to the contrary.”
    After the verdict had been rendered the defendant moved the court to set it aside and grant a new trial of the cause on the ground that the verdict' was contrary to the evidence; and the bill of exception sets out all the evidence. It is impossible to state the evidence, nor is it necessary. It is directly conflicting on the question of waiver.
    A. M. Keiley, for the appellant.
    Wm. L. Royal, for the appellee.
    
      
      Fll-e Insurance — Forfeiture of Policy— Waiver by Assent. — See Goe. Home Ins. Co. v. Kinnier’s adm’x, 28 Gratt. 88 and note; Morotock Ins. Co. v. Pankey, 91 Va. 259.
    
   ANDERSON, J.

In the petition for the writ of error the plaintiff in error says: “This cause has already *been before the supreme court, and the facts are in no respect different from those presented at the former hearing.” It is also said that the only questions presented on the record are — first, whether the secretary had the power to waive an admitted forfeiture? and, second, whether in point of fact he did so waive the forfeiture?

I cannot find from the record that the forfeiture is anywhere admitted. The policy had been cancelled by the company for the supposed non-payment of the July, 1874, quarterly premium. But when the assistant secretary was satisfied that the premium was paid to the company’s agent, who had failed to account for it, he admitted that the cancellation was wrong, and that the assured had not incurred a forfeiture. At the former hearing (only four judges sitting) the court was equally divided upon the question of forfeiture. I beg to refer to my opinion (29. Gratt. 364) for the grounds upon which I held that the plaintiff below had not incurred a forfeiture.

Whether he had or not, turned mainly on the question, whether, if the company revoked the authority of its agent at New-bern, North Carolina, to whom the quarterly payments had been regularly made, in compliance with the requirement of the company, and with its approval during the existence of the policy, embracing the quarterly payment of five annual premiums, it was not the duty of the company to notify Mr. Darrow, who resided in the city of New York, at a great distance from Newbern. where the premiums had always theretofore been paid, who was the known and acknowledged assignee and holder of the policy, and by whom the premiums had been paid, and were payable, as was known to the company, and to have informed him to whom and where payment of his premiums should thereafter be made, I held the affirmative *of this proposition, and now hold that inasmuch as it plainly appears from the record that Darrow was ready and desirous to pay the premiums as they were severally due and payable, and that he was only prevented by the fault and gross negligence of the company in failing to give him the aforesaid notice and information, the non-payment was not in default, and he is not liable to a forfeiture of the policy therefor. In support of this position I .only propose now to cite two recent decisions of courts which are entitled to the most respectful consideration, and to which we had no access at the former hearing of this cause. One is the decision of the supreme' court of North Carolina in Braswell v. The American Life Ins. Co., 75 North Car. R. p. 8. It was held in that case that the obligation was on the company to notify the assured of the revocation of the authority of "its agent to whom he had theretofore paid the premiums with the approval of the company. CHIEE JUSTICE PEARSON, in delivering the opinion of the whole court, said: “The fact that the defendant had revoked the agency of Dearing and refused to furnish him with receipts * * * was a matter peculiarly within its own knowledge. We hold that the defendant was guilty of gross negligence, if not fraud, by failing to communicate to such of its assured as the books showed were in connection with Dearing, and who had been in the habit of sending him the money and getting a receipt in return.” The plea that the defendant, the plaintiff in error, was not informed of the residence of Darrow is not sustained. The assignment of the policy to him, which they acknowledged and approved by an endorsement thereon, was notice to them of his residence, and their agent had thereafter constant correspondence with him at his residence in the city of *New York, and the premiums were regularly remitted to him by Darrow from the city of New York, except one which was remitted to the home office, in the city of Richmond, and forwarded to their agent, Carraway, at Newbern. who receipted for it.

The other case supporting the doctrine is Insurance Co. v. Eggleston, decided by the supreme court of the United States as late as 1877, 96 United States R. p. 572. In that case the agent to whom payments of premiums had been made was removed without notice to the assured, who was not informed what agent held the receipt, to whom payment could be made, until after the day had passed. He then tendered payment to the agent; who refused to accept it unless a certificate of the insured’s health was furnished. The court held that the insured, in view of the company’s dealings with him, had reasonable cause to expect and rely on receiving notice where and to whom to pay the premium, and that the company was es-topped from setting up that the policy was forfeited by the non-payment.

But if there was a forfeiture, was it waived? The doctrine seems to be well settled that the company may waive the forfeiture; and that can only be done through its agent. Insurance Co. v. Norton, 96 U. S. R. p. 234; Geo. Home Ins. Co. v. Kinnier’s adm’x, 28 Gratt. p. 88. In this case we think it is clear that J. J. Hopkins, assistant secretary, was a general agent of the 'company, and had power to make such an adjustment as is alleged by Darrow he made with his agent, D. M. Van Cott, and thereby in effect released Darrow from any forfeiture, if it had been incurred. The fact of such an adjustment 'was a question for the jury under the instructions of the court. The court instructed the jury as to the law, to which instruction the defendant excepted, but we think that the instruction, being in harmony with the letter and spirit of the prior decisions of this court, was right.

*The jury found a verdict for the plaintiff, and the court overruled the defendant’s motion to set it aside and grant it a new trial, and gave judgment for the plaintiff, to which ruling of the court the defendant excepted, and the court certified the evidence; and the remaining question for our decision is," upon that certificate of evidence, did the court err in refusing a new trial? The question as to the legality of the evidence is res adjudicata. It was decided by this court when the cause was here before, that the evidence was admissible and legal, and the cause was remanded to the court below with instructions to grant the plaintiff a new trial, and if the evidence was offered again to admit it; and this court could hardly be asked to reverse the judgment of the court below for obeying its instructions in admitting the evidence.

The only question, then, for the appellate tribunal, is, did the court of trial err in refusing to set aside the verdict upon the ground that it is contrary to evidence? I do not propose to review -the testimony. As by the well-established rule of this court, in deciding this question we have to exclude from consideration the exceptant’s parol testimony and decide the case alone upon the testimony of the prevailing party, there is no room for debate as to what should be the decision of the court. And I am of opinion to affirm the judgment of the circuit court.

BURKS, T., concurred in the opinion of ANDERSON, J.

CHRISTIAN, J..

when the case was formerly before this court, was of opinion, and is so now, that there had been a forfeiture of the policy. On the record, as it is now before the court, he must concur in affirming the judgment.

STAPLES, J.,

was of the same opinion. On the first trial there had been error in excluding evidence, and for *that reason he concurred in reversing that judgment. But on this record it is a case of conflicting lesfimony, and he therefore concurs in affirming the judgment.

MONCURE, P., concurred iñ affirming the judgment.

Judgment affirmed.  