
    Catherine Carr, Respondent, v. The Prudential Insurance Company of America, Appellant.
    Fourth Department,
    November 14, 1906.
    Insurance — acceptance of overdue premium for life insurance by agent — secondary evidence of terms of the policy — authority of insurance agent to bind company — evidence — insufficient proof of mailing the notice of forfeiture —• conclusion of agent as to his authority inadmissible — errors prejudicial to successful party — charge approved.
    When in an action on a life insurance policy which has been delivered to the insurer with proof of death, the plaintiff has served defendant with notice to produce it at trial-and the genuineness of the policy as produced by the defendant is denied by the plaintiff, the latter may give secondary evidence of the terms of the policy, as by putting in evidence a copy of the original policy made before sending it to defendant.
    When the terms of the policy, as proved by the plaintiff, imposed no obligation on the insured for failing to pay premium at maturity in case the premiums be subsequently paid, and the plaintiff testifies that the superintendent and general agent of the insurer accepted the balance on an overdue premium and also a further premium paid' in advance, it is for the jury to say whether the forfeiture was waived, although the agent denies that he waived the forfeiture.
    The superintendent and general agent of the insurer "has authority to receive part of a premium and assent to the continuance of the policy until the balance • is paid and to receive said balance although paid when overdue.
    
      Although section 93 of.- the Insurance Law makes the affidavit of the person mailing the notice essential to create a forfeiture of the policy presumptive evidence of such mailing, such affidavit made in a foreign State is insufficient to establish the mailing of the notice in' opposition to' testimony that it was never received, unless the official character of the notary is authenticated. Statements of the insurance agent as to his lack of authority in modifying the terms of a policy, when mere conclusions, are inadmissible.
    When the errors of a trial court are prejudicial only to the plaintiff,, the defendant cannot take advantage thereof.
    It is not error to charge that as a matter of law the insured has the right to rely upon the promises and'agreements of the general agent and superintendent of an insurance company, and that they bind the company, when there is no • proof of any -limitation upon Ms authority.
    Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on . the 27tli day of February, 1906, upon the verdict of a jury, and also from .an order bearing date the 23d day of February, 1906, and entered in said cleric’s office, denying the defendant’s motion for a new trial made upon the minutes. _
    
      L. M. Cunnings, for the appellant.
    Clarence U. Carruth and W. J. Shields, for the respondent.
   'Spring, J::

The defendant, a foreign insurance company, issued its policy on July 12, 1902, whereby it insured the life of John Carr, of the city _ of Buffalo, in the sum of $500, to be paid to his widow, the-plain tiff, upon satisfactory proof Of his death. The premiums, each of six dollars and twenty-nine cents, were payable quarterly, the first' of which was due and paid on the 12th day of October, 1902. The second payment fell due on the twelfth of January' following, which the defendant "claims was never paid, and it was with reference to that premium that the present controversy lias arisen.

Mr. Carr died on the 16th of March, 1903, and satisfactory proofs of his death were shortly after sent to the defendant and retained by it.' The assured did not pay the premium falling due January twelfth at that time, but on the twenty-second of that" month paid Mr. Joyce, the general agent and superintendent of the defendant at Buffalo, the sum of two dollars. Mrs. Carr testified that she was present when this payment was made, and that her “husband told Mr. Joyce jfchat all he had to pay on the premium was $2.00, and Mr. Joyce saidall right,’ and told him to pay the rest as soon as he could. My husband went home and put the slip away and never looked at it. That is all that took place there.” The slip referred to was a receipt signed by the superintendent reciting that it was for “ the amount of arrears on ” the policy, and contains this provision : “ This receipt is issued upon the express understanding that if the Company declines to approve such application the above amount will be refunded in exchange for this receipt, and that in no case shall this receipt be construed as renewing or creating any liability on behalf-of the Company under the above policy.”

The plaintiff testified that on the ninth of March she paid to Mr. Joyce four dollars and twenty-nine cents, the balance of this quarterly payment remaining unpaid. The former receipt was changed by Mr. Joyce erasing the word “two” and substituting the word “■six,” so that the receipt acknowledged the payment of six dollars and twenty-nine cents, and in that form it was delivered to the plaintiff. The plaintiff testified that Mr. Joyce told her “when the next premium was due to have it;” and she, therefore, paid him the amount of the premium which would mature on the twelfth of the next April, and he gave her a receipt therefor in form like the one mentioned even in reciting that it was for “ arrears ” and with the clause above "quoted.

The payments of money are not disputed, but Mr. Joyce does not agree with the plaintiff as to either conversation. He testified that he told Carr at-the time of the two-dollar payment that only eight or ten days remained in which to pay the full premium, and further,/61 told him if he cared to he could pay whatever portion he had of it and we would give him a revival receipt on the condition that ■ he paid the rest before the 30 days expired, and if he paid it, it would be all right. He paid $2.00 and a revival certificate was given to him.”

His narration of the conversation with Mrs. Carr in March is: “ I told her of course the policy had been canceled as I had told her husband when he paid the $2.00 that it would have to be canceled unless he got the rest" paid, but that we would write out a, revival application and send the doctor to make an examination and if lie found Mr. Carr in good health that it would be all right. And then I think I further said,c Your next premium will be due in a very 'few days now and you had better pay that too and we will give you a-receipt for it and if he is accepted why you will have his. next premium paid.’ She paid $16.-29, the second premium as she says, I told her that this money of'course would be accepted on a revival receipt and subject to her husband being in good health and that I would send an examiner there to make an examination.”

This disagreement constituted the chief disputed question of fact and was the only one left for the jury to pass upon..

The court said to the jury: The question is simply Was this premium dire in tile month of January extended by the agreement of the parties ? ’ If it was, this plaintiff is undoubtedly entitled to recover. If you.believe that it was not, that is the end .of this lawsuit.” And again : “ To recapitulate, the question for you to determine is, first, was this extension of time-, as claimed by the plaintiff, made % Do you believe if was made % If you do, then the plaintiff must recover.” •

The trial took a peculiar turn. The defendant’s counsel produced what he said was the insurance policy insuring the life of Carr, and the counsel for the plaintiff, who had served notice to produce -the same, denied that the policy presented was the one issued. The defendant was unable to make the necessary proof to permit it to be admitted in evidence. The plaintiff’s attorney testified' that he had in his possession at the time of preparing the proofs of loss the original policy and made a copy of it, sending the original with the proofs of loss to the defendant. He said that the policy offered by the defendant was not the original policy ; that the genuine policy did not contain the conditions appearing in the one produced, and the copy was received in evidence. Apparently the policy presented by the defendant’s counsel contained conditions pertaining to revival receipts given upon failure to pay the premiums in_time, and possibly some limitation upon the authority of the agents of "the company. But the policy presented is not in the record and no effort was. made by the defendant’s counsel to secure an adjournment. of the trial for -the purpose of identifying the policy he had. He. objected to the reception of the copy, but inasmuch as. the-defendant failed to produce, after notice, the genuine policy or one which could be identified as that policy, the copy was admissible. The original policy was in the custody of the defendant, and unless produced' by it secondary proof of its contents must have been expected. The policy, in evidence, therefore, imposed no obligation upon the insured in the event he failed to pay the premium at maturity, but subsequently paid it. For aught that appears, its acceptance at any time revived the policy if it ever lapsed.

The policy in evidence contains this clause ; “ In the payment of any premium under this policy, except the first, a grace of one month will be allowed, during which time the policy will remain in force.”- The policy, therefore, was in force at the time of the payment of the two dollars, and the extension based upon it. This extension agreement did not renew or create any liability on behalf of the Company under the above policy,” for the liability then existed as the thirty-day period had not elapsed.. Section 92 of the Insurance Law (Laws of 1892, chap. 690, as amd. by Laws of 1897, chap. 218) in any event prevented the forfeiture of the policy during this thirty-day period.

So far as appears, Joyce, who was the superintendent and general agent, had ample authority to receive a part of the premium, and months later, without any examination as to the physical condition of the assured, receive the balance, the policy not abating in the meantime, and if so, becoming revived upon full payment. As superintendent and general agent he had authority to receive the two dollars and assent to the continuance of the policy until the balance was paid, and in. March to receive such balance. (Cross v. Security Trust & Life Ins. Co., 58 App. Div. 602; affd., 171 N. Y. 671; Marcus v. St. Louis Mut. Life Ins. Co., 68 id. 625; Wood v. American Fire Ins. Co., 149 id. 382, 385 ; Genung v. Met. Life Ins. Co., 60 App. Div. 424, 428 et seq.)

The evidence justifies the finding that Joyce assented, to the extension when the two dollars were paid. It is undisputed that on the ninth of March he received the balance of this premium, and also the premium for the next quarter, and no part of this has been returned to the plaintiff. He testified that when he gave the blank proofs of loss to Shields, the attorney for the plaintiff, he tendered him this money. Shields deified this and the question was not submitted to .the "jury and no one requested its submission.

-There is no pretense that any tender was ever made to the plaintiff in this action, so we must assume that the defendant accepted tiffs money, both the two dollars in January,.the balance of the premium paid in March and also the advance .payment in April.

The appellant’s counsel claims that the application for the policy is a part of the insurance .contract and should have been received in evidence. No such .objection was suggested on the trial and the application was in the possession of the defendant, not the plaintiff.

It is urged that the court erred in not granting a nonsuit. There "was a question of fact as to the "extension of the time to pay the premium. There was also a question of fact as to what occurred at the time the premium was paid in March. It was also a question of fact as to whether the defendant mailed the notice to Carr in December pursuant to section 92 of the Insurance Law, as amended by chapter 218 of the Laws of 1897, and which is essential to enable it to declare the policy forfeited, although tiffs question Was. not submitted to the jury. The only proof on behalf of the defendant as to the mailing of this notice was the alleged affidavit of • one Fuerth, stating that fact. The affidavit of the person authorized is by the statute made presumptive evidence .of the mailing (§ 92, as amd. supra), but there was no authentication of the official character of the ■ foreign notary, and Mrs. Carr testified .to facts from which the jury might have foiind that the notice was never received. (Howell v. Hancock Mut. Life Ins. Co., 107 App. Div. 200; affd., 186 N. Y. 556.)

Nor did the court err in excluding the general statements of Joyce as to his authority or that he could not modify or issue a policy of insurance,- ór as to what" his duties and powers were. These ’were, all conclusions and were- not the proper manner of proving "the restrictions upon his general agency, and lie was permitted to go beyond the rule rather than invade it in this class of testimony..

The court erred in his charge to the jury and during the. trial, but the errors, so far as material, are against the plaintiff,- and- of thesé the defendant cannot complain. For instance, the jury might have found from the evidence that the notice mentioned in section 92 of the Insurance Law (as.amd. supra) was not served, but the court declined to submit this question upon the request of the counsel for the plaintiff.'

The defendant’s counsel asked the court to charge “ that if Mr. Joyce, as the agent of this party, was in a position to charge the defendant, then that must be shewn ; his authority to the effect of extending the time by the payment of the premium must have been shown; that that cannot be taken by implication.” The court replied: “ I will charge as a matter of law by virtue of his office as general agent and superintendent that the plaintiff had a right to rely upon his promise and agreement, and that that promise would bind the company.”

• The instruction was correct, for there was no proof of any limitation upon the authority of Joyce, and 'he, in fact, testified to the extensive scope of liis agency.

We are unable to say whether the various requests relative to the revival interim receipts were correctly decided or not, for the record does not enlighten us as to their significance or their relations to the policy. While the record is not at all satisfactory, we think there was a question of fact that was properly submitted to the jury, and there was no error of which the defendant can justly complain.

The judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  