
    *The New York Life Ins. Co. v. Hendren.
    March Term, 1874,
    Richmond.
    1. Insurance Policy.—It Is now settled law in Virginia, that contracts of life insurance entered into before the late war. are not abrogated, but only suspended by the war.
    2. Same—Interest.—In an action on a life insurance policy issued in 1856, the jury found a verdict for' the whole amount of the policy, with interest from February 1870. The person insured died in August 1862, and notice of his death was given December 2d 1869. If the premiums after February 1861 were not paid, the interest on the policy from the time it should have been paid, was more than the unpaid premiums, and therefore the verdict was not excessive.
    3. Same—Amendment,—In an action on a policy, the declaration omitted one of the conditions endorsed upon it; and on the trial when the policy is otiered in evidence, it is objected to for the variance. The court may allow the plaintiff to amend the declaration by inserting the omitted condition, and proceed with the trial.
    4. Same—Instructions.—Instructions are ashed by the defendant, and refused by the court. As, whether correct or not, the plaintiff was entitled to recover upon the evidence in the record, independent of that referred to in the instructions, the refusal to give them is not ground for reversing the judgment.
    This was an action of assumpsit in the Corporation court of the city of Norfolk, brought in April 1870, by Henrietta Hendren, against the New York Life Insurance Company, to recover the sum of $5,000, the *amount insured by the said company upon the life of her husband William T. Hendren, for her benefit. The defendant demurred to the declaration, and the plaintiff joined in the demurrer, and the defendant also pleaded non assumpsit, and had leave to file special pleas. At the February term of the court the demurrer was overruled; and the defendant filed seven additional pleas; but it is unnecessary to state them.
    Upon the trial of the cause the plaintiff offered in evidence the policy of insurance, which was objected to on the ground of variance: in this, that in stating the conditions of the policy in the declaration it omits the proviso that if the declaration of August 20th 1856 (upon the faith of which the policy was issued,) be in any respect untrue, the policy should be void, and any allegation that said declaration was true, and on other grounds apparent on the record. The plaintiff then asked leave to amend his declaration by inserting the following words, to wit: “All receipts for premiums paid at agencies are to -be signed by the president or actuary;” and “that the declaration made by the said plaintiff on the 20th of August 1856, on the faith of which the said policy recites that it is made, is not in any respect untrue, but is in every particular true, and that all things on her part to be done and performed, and all conditions by her to be complied with, have been done and performed and complied with. ” The court allowed said amendment; and the defendant excepted. There was a second exception to the evidence of payment of the premiums to the defendant, without some evidence of receipts, signed by the president or actuary, as mentioned in the memorandum on the margin of the policy, being given for such payments.
    After all the evidence had been introduced the plaintiff asked the court to give one instruction to the jury, *and the defendant asked for twenty-three. They are sufficiently referred to by Judge Anderson in his opinion.
    The jury then found a verdict in favor of the plaintiff for the sum of $5,000, with interest thereon' from the 2d day of February 1870 until paid. The defendant thereupon moved the court for a new trial, upon the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion and rendered a judgment upon the verdict, and the plaintiff again excepted, and the evidence was spread upon the record.
    The New York Fife Insurance Compaq is a corporation incorporated under the laws of the State of New York. It was a mutual assurance company making dividends of net profits, which after the year 1856 were never less than thirty per cent., and there was due Mrs. Hendren, in March 1860, $36. Previous to the year 1856 this company commenced to do business in Virginia, and their local agent in the city of Norfolk was F. F. Ferguson.
    On the 25th of August 1856 the company issued a policy upon the life of Wm. T. Hendren, then living in Norfolk, for five thousand dollars in favor of his wife Henrietta Hendren, conditioned upon the payment of $120 annually in quarterly payments in August, November, February and May of each year.
    There were conditions annexed to the policy, that Hendren should not, without the consent of the company, pass beyond the settled limits of the United States that lie east of the Rocky mountains, except the settled limits of the British provinces of the two Canadas, Nova Scotia and New Brunswick, or visit or reside in those parts of the United States which lie south of the southern boundaries of Virginia and Kentucky, between the first of July and the first of November; nor shall he,. without like consent, enter into any military service ^whatever (the militia not in actual service excepted), and others which need not be stated; and it was further agreed that if the declaration made by Mrs. Hendren, upon the faith of which the agreement was made, should be found in any respect untrue, the policy was to be null and void. And on the margin of the policy it was stated that all receipts for premiums paid at agencies are to be signed by the^ president or actuary.
    It appears that it was the practice of the company to send in advance, from its office in New York, printed receipts signed by the president or actuary, for the amount of the premiums, and with a note at the foot, “not valid unless countersigned by’ ’ the agent, naming him.
    Hendren paid the premiums up to May 1858 to F. F. Ferguson, the agent at Norfolk. He then removed to Hampton, and Ferguson transferred the policy to R. H. Vaughan, who was the agent of the company at that place, and the premiums were paid to Vaughan until and including February 1861. Farly in 1861 Hendren and his wife returned to Norfolk, and in the first of the year 1862 they removed from Norfolk to Richmond, and Hendren was appointed a clerk in the office of Colonel Groner, who was assistant adjutant general in the Confederate service. Hendren held no commission in the military service, and his duties were purely clerical. He died in the city of Richmond on the loth of August 1862, of which the defendant had notice on the 2d of December 1869.
    There was evidence by Mrs. Hendren that R. H. Vaughan acknowledged payments of the premiums during the lifetime of Hendren, or undertakings by Vaughan to pay them; though there was no proof of printed receipts signed by the president or actuary of the company'. And it was in proof that Vaughan entered the army of *the Confederate States from the commencement of hostilities and continued therein until his death in 1864.
    The defendant applied to this court for a supersedeas to the judgment; which was allowed.
    Tucker & Old and T. Taylor, for the appellant.
    John Howard and Richie, for the appellee.
    
      
      Insurance Policies.—See on this subject, monograpic note on "Life Insurance” appended to McLean v. Piedmont, 29 Gratt. 361.
    
   Anderson, J.,

delivered the opinion of the court.

It is now settled by the decisions of this court, in Manhattan Life Insurance Company v. Warwick, 20 Gratt., 614; and in the recent case of Mutual Benefit Life Insurance Company v. Atwood’s adm’x (not yet reported) ; and also by the decision of the Special court of appeals, in New York Life Insurance Company v. White; the Ins. L. Journal for Dec. 1873, p. 917, that contracts of life insurance entered into before the late war are not abrogated, but only suspended by the war. And with these Virginia decisions the highest judicial tribunals of the States of Kentucky, New York, New Jersey and Mississippi, and the Federal Circuit courts for the southern district of New York, J. Blatchford, and for the eastern district of Virginia, J. Bond, are in accord.

The Kentucky case was the first in order of time, but had not been reported when the Warwick Virginia case was decided. We had not then heard of that decision, and had not the benefit of the able and lucid opinion of Judge Robertson, the distinguished Chief Justice of the Court of appeals of Kentucky ; though our reasoning brought us to the same conclusions. And it is a source of sincere gratification that decisions so just and so plainly enforcing the rights of destitute widows and orphans *have received the sanction, commendation and approval of so many eminent courts, distinguished for their learning and wisdom.

In this case, which is an action of assumpsit, the verdict of the jury is for $5,000, the whole amount of the insurance. There was a motion for a new trial, which was overruled by- the court, and judgment rendered for the amount of the verdict, to which the plaintiff in error excepted, and the evidence is certified as the facts proved in the cause.

The only open question, under the previous rulings of this court, as before recited, is as to the amount of the verdict. It is clearly shown that the assured was willing and anxious, and was prepared to pay the premiums as they fell due, and that they would have been paid if the company had had an agent here authorized to receive them. Vaughan, who was their agent before the war, and to whom the premiums had been paid up to the 25th of May 1861, upon printed receipts, signed by the president or actuary, and countersigned by the local agent in the mode prescribed, by direction attached to the policy, was not furnished with such receipts for the premium which fell due on the 25th of May 1861, or for any of the subsequent quarterly payments which fell due in the lifetime of the insured, which, in the absence of any waiver on the part of the company, or of any express instruction to receive payment, must be regarded as evidencing a withdrawal of authority from the agent to receive payment, as was held in White’s case, above cited. In Warwick’s case it was held that the payment made to the local agent and accepted by him was valid and binding upon the company, although they had not furnished the printed receipts. But in that case express instructions to the agent to receive payment in the kind of funds in which it was paid were proved, and upon *that ground, and other circumstances in that case, the company was held to have waived the requirement that the payment should be evidenced by a printed receipt, signed by the president or secretary. And in that case the evidence was clear and unquestionable that payment was made to the agent in the kind of funds, or its equivalent, which he was instructed to receive, and that he was prepared to make the remittance to the company by draft on New York, as he had been instructed to do, of which the company had notice. There is no such evidence in this case; but the presumption may fairly be drawn from the evidence, that if the company had furnished their agent with the receipts signed by the president or actuary the premiums would have been paid. If we discard all the evidence tending to prove the agency of Vaughan, after the commencement of the war, and his declarations and admissions, the evidence in the record does not show that the five quarterly premiums which fell due on the 25th of May 1861, and subsequently, in the lifetime of the insured, amounting in all to $150, were paid, unless the company had in its own possession a sufficient amount due the assured in dividends to satisfy them. Whether the evidence is sufficient to establish such a claim on the part of the assured was properly a question for the jury, and whether the evidence warranted the jury to set oil the dividends against the premiums or not, it does not appear that they did or did not. They found a verdict for $5,000, with interest from the 2d day of February 1870.

The court is of opinion that if the assured was entitled to the insurance money, she was entitled to interest upon it from an earlier period than that which is allowed by the verdict; and that the interest to which she was entitled, and not allowed by the verdict, will more than compensate for the one hundred and fifty dollars o.f premiums. *If we assume, then, that no pajrments were made through Vaughan, pendente bello, and that nothing was due the assured on account of dividends (an assumption as to the dividends not warranted by the evidence), it does not appear that the verdict is excessive. It should not therefore be disturbed on that ground.

The court is also of opinion that the court below did not err in giving the plaintiff leave to amend her declaration, and in overruling the demurrer; or in admitting the policy to be given in evidence to the jury, as set out in the first bill of exceptions. It is also of opinion that the declarations and admissions of R. H. Vaughan, as testified to by Mrs. Hendren, tending to prove his agency, or the payment of premiums during the war, as set out in the second bill of exceptions, are not necessary to support the verdict or the plaintiff’s right qf action; the evidence in the record, exclusive of the declarations and admissions of Vaughan, showing that the verdict is not excessive, and the payment of premiums flagrante bello, not being essential to the plaintiff’s right of action. The company was bound to keep an agent here continuously, to receive premiums and to pay policies. It would be unreasonable and unjust to hold the insured to a forfeiture of his contract, and of the money he had paid on account of premiums, because he did not pay premiums which he could not pay because of the failure of the company to have an agent here, as bound by its contract, authorized to receive them. If the company was excused for the non-compliance with its contract in this particular, surely the insured would be excused for the non-payment, and could not be held to a forfeiture therefor.

The court is further of opinion, that there is no error in the instruction given, on motion of the plaintiff,' set out in the defendant’s third bill of exceptions; and that if the principles enunciated in instructions No. 1, 2, 3, 4, *6, 8, 9, 11, 14, 15, 16, 18, 19, 20, 21, moved by defendant, are true in the abstract, upon which we do not intimate an opinion, it was immaterial to the plaintiff’s right of action whether the agency of Vaughan was continued during the war or not; and the acts, declarations, and admissions of said Vaughan were not material in maintaining the issues on the part of the plaintiff, and the verdict of the jury is well supported by the record if they are excluded; and therefore the refusal to give said instructions, even such as might be right in the abstract, has not been to the prejudice of the plaintiff in error. Nor is there error in the qualification given by the court to the 7th instruction. But the instruction, with or without the qualification, was not material upon the question of the plaintiff’s right of action, nor upon the issues involved. And if it had been given without the qualification, it could not have affected the plaintiff’s right of action or recovery, and is therefore an abstraction. Instruction No. 5, so far as it relates to the agency of Vaughan, falls within the principle of the class of instructions before noticed. And so far as it denies to the plaintiff her right to recover, because of her removal from Hampton to Norfolk, and thence to Richmond, is not law, and was properly overruled. The policy, by the contract, was not made to depend upon the insured remaining at Norfolk or Hampton, or his not removing to any other place in Virginia. And there is neither reason, nor law, nor justice in holding that the insurer should hold on to the money he had received from the' insured, and be absolved from his obligation of insurance for the term of his life, because when the war broke out the insured did not separate himself from his kindred and friends and throw himself into the arms of their enemies. There is no such stipulation or condition in the contract. It does provide that he shall not pass, without *the consent of the company, &c., beyond the settled limits of the United States that lie east of the Rocky mountains, except into the settled limits of the British provinces, &c., or visit or reside in those parts of the United States which lie south of the southern boundaries of the States of Virginia and Kentucky, between the first of July and the 1st of November, or enter into any military or naval service whatever, the militia nof in actual service excepted. He was at liberty, therefore, under the contract, to go anywhere he chose, except within the lines prohibited. And he was inhibited from engaging in active military or naval service without the consent of the company. These were the only restrictions touching- the point in question, which are imposed on him by the contract. And to hold that his removal from place to place, not within the inhibited lines, or that he did not separate himself from his kindred and friends and throw himself into the arms of their enemies, subjected him to a forfeiture of his contract, not to the government, but to the defendant, would be for the court to' insert a clause in the contract of the parties, which they did not put there, to make a contract for them which they did not make for themselves. We are of opinion, therefore, that the court did not err in refusing to give this instruction.

The 10th and 17th instructions are identical, and announce an abstract principle which, we think, under the terms of the act of assembly, is not law, to wit: That “the defendant could not do by an agent what it could not do by itself." The defendant, in fact, being a corporation could do nothing except by agents. But, if it is meant that this company could not do by its agent in Virginia what it could not do through its New York’ agent, it is not true. The prohibition of the act of assembly, which was in force at the date of this policy and *ever since, is, that no person shall act otherwise than is provided in the second section of the act, as agent for any such company, to make or renew, directly or indirectly, any contract of insurance within this State, and with any person resident therein, without complying with the requisitions of this act, or in any way contrary to the true intent and meaning thereof, under the penalty of $500. (Code of 1860, p. 241, l 32.) The section referred to requires that the company shall appoint some citizen of the commonwealth, resident therein, its attorney or agent. (§ 24, in the original act § 2.) Thus it appears that the company can only contract through its resident agent in this State, to whom, by the contract and the statute, premiums are to be paid. (For construction of statute see Warwick & Manhattan Ins. Co., 20 Gratt., supra.) When this company undertook to do business in this State, it was upon the terms of this statute. And those recited show that the company could do by its agent in Virginia what it could not do by its officers or agents of New York. The 12th instruction was given, and, whether right or wrong, cannot be complained of by the company, because given at its instance. The 13th is contrary to the decisions of this court before cited, and we think was properly rejected. The 22d and 23d, so far as they affect the question of Vaughan’s agency, flagrante bello, are not material, it not being necessary to establish such agency to entitle the plaintiff to recover. And so far as it asserts that the acting of the insured, as a clerk in the office of the adjutant-general, dissolved the contract, not as an abstract proposition, but in the mode and under the circumstances proved in the cause, it is not true; for it is proved that he was subject to no military order and held no commission or position connected with the military service. We are of opinion, therefore, that these instructions were properly rejected.

'x'TTpon the whole the court is of opinion that the judgment be affirmed. Moncure, P., concurred in the results of the opinion.

Judgment affirmed.  