Amos v. United States Casualty Co.

Thomas, J., delivered the opinion of the Court. This suit was brought to recover on an accident policy issued by the appellant, the United States Casualty Company, to James W. Amos, of Baltimore City, Maryland. The policy is not set out in the record, but it would seem from the pleadings, evidence and admissions of counsel that it-was dated December 29th, 1911, was issued for a period of one year, and was renewable from year to year by the payment of a premium of $70.00 and the execution and delivery by the company of a renewal agreement. The company thereby agreed in the event of the death of the insured while the policy was in force, resulting' “directly and independently of :any and all other causes from bodily injury effective solely .through external, violent and accidental means” to pay to Helen V. Amos, the beneficiary named in the policy, the sum -of $5,000.00, and it is stated in the brief of the appellee that there was a further stipulation that if the accident causing such injury occurred after three years from the date of the policy, and while it was in force, the company would pay to the beneficiary $7,500.00 instead of $5,000.00.

It appears from the evidence that according to the regular course of dealing and a custom of business between the company and its agents, the renewal premiums are charged to the agents of the company, and that during'! the month preceding the month in which the premiums are due, the company sends to its agent a renewal agreement for each policy solicited by him, signed by the proper officer of the company and to be countersigned by the agent and delivered by him to the insured when the insured pays the premium. The premiums, less the agent’s commissions, are paid by the agent ⁴⁷³ before the 10th of the month following the month in which they are due, and the agent is given credit for the same by the company, but the company and the agent do1 not regard this payment by the agent as a payment by or for the insured of the premium for a renewal of the policy until the premium is paid by the insured to the agent, and if the premium is not paid by the insured, the agent is required to return the renewal agreement to the company, and the company then marks the renewal agreement “cancelled flat,” and returns to the agent the part of the premium received from him. The agent is allowed to hold the renewal agreement for thirty days, and if at the expiration of that time the premium “has not been paid by the insured he is expected to return it to the company, unless the company has consented to his holding it for a longer period. The policy in question was renewed for the years beginning December 29th, 1912, and December 29th, 1913.

The company received on December 29th, 1912, from A. Kirkland Weeks, of Baltimore City, its agent who solicited the policy, the renewal premium for the year commencing on that date, and received from him on December 28th, 1913, the premium for the year commencing December 29th, 1913. About, the first of December, 1914, tbe company, in accordance with said custom, sent Mr. Weeks renewal agreements for the policies on which renewal premiums would he due that month, and received from him in accordance with said custom, on December 30th, 1914, a check for the company’s share of all the premiums, amounting to about $600.00. The agreement for the renewal of this policy, which the company sent to Mr. Weeks, and which is set out in the appellee’s brief, is as follows: “E. BE. O. 1ST.

P. 213038. 80 Maiden Lane. Md. 1. Home Office, New York Oity. Premium: Accident. .. .$25.00 Health.....45.00 (total) $70.00 ⁴⁷⁴ Renewal Agreement Ho.

D80402. It is hereby agreed that disability policy Ho. 11592 • issued by the United States Casualty Company to JAMES W. AMOS is contihued in force for 12 months from the 29th day of December, 1914, noon, standard time, subject to the provisions printed on the reverse side hereof. Hot valid unless countersigned by a duly authorized representative of the company. D. G. Duckett, Countersigned, Secretary." The following is the reverse side of the agreement : “If the warranties in the schedule of statements or the application for the said policy are not true when the premium named herein is received, this renewal agreement is null and void.

The premium named herein is due and payable on the date named herein. The said policy shall not be in force while any premium remains unpaid. Any premium due the insured will be returned on demand.” Having failed to collect the premium from Mr. Amos, Mr. Weeks wrote the company on February 9th, 1915, requesting permission to hold the agreement for thirty days longer, with the hope of collecting the premium from the insured. The company replied giving its consent and directing Mr. Weeks, in case he failed to collect the premium and returned the agreement, to call the company’s attention to its letter authorizing him to hold it.

On the 6th of April, 1915, Mr. Weeks wrote the company stating that Mr. Amos had failed to- pay the premium and enclosing the renewal agreement for “cancellation.” In this letter Mr. Weeks asked the company to return the renewal agreement to him in case Mr. Amos should pay the premium. Upon receipt of the renewal agreement, the company cancelled the policy “as of December 29th, 1914,” and on the 14th of April, 1915, sent Mr. Weeks its check for the part- of the premium received from him. ⁴⁷⁵ On the 3rd of June, 1915, the insured fell while crossing McOulloh street, in Baltimore City, and sustained injuries from, which he died the following day. The company refused to pay the claim of the beneficiary, and this suit was brought by her to' recover the amount of the policy. A number of exceptions were reserved during the trial, but the important question is raised by the exception to the granting of the prayer of the defendant withdrawing the case from the jury.

The plaintiff’s witness, James W. Meadow, assistant secretary of tho company, testified in substance to the course of dealing we have already stated between the company and its agent, Mr. Weeks; that the company received from Mr. Weeks “in usual course,” on the 30th of 'December, 191.4, the premium for the renewal of the policy in question for the year commencing December 29th, 1914; that the policies are renewed by renewal agreements which are not “valid” until countersigned by the agent to' whom they are sent; that the agreement for the renewal of the policy issued to Mr. Amos was returned by Mr. Weeks to the company in April, 1915, and the policy was cancelled by the company as of December 29th, 1914, because tho premium had not been paid, and that the part of the premium which the company had received from Mr. Weeks was returned to him by the company. If the evidence had stopped there, it is clear that the plaintiff would not have been entitled to recover. The fact that the company received on December 30th, 1914, from Mr. Weeks its share of the premium for the renewal of the policy, when considered in connection with the course of dealing between the company and its agent, as disclosed by this evidence, and the terms upon which the policy was renewable, cannot be treated as evidence that the premium for a renewal of the policy was paid by or for the insured. It was not considered by the company or by Mr. Weeks as a payment of the premium, and the proof referred to contains no evidence that tho insured knew that the company had received a part of the premium from Mr. Weeks or that he understood that ⁴⁷⁶ what Mr. Weeks did constituted payment of the. premium.

It is said in 25 Cyc. 725: “If the premium is actually paid by the agent of the company for the insured, on an agreement between them, and such payment is accepted by the company, this will be sufficient to bind the company,” and in the case of Home Insurance Company v. Curtis, 32 Mich. 402 , where the Court said: “If the company actually received the premium, it is a matter of no consequence who paid it,” the Court stated in its opinion: “There was evidence introduced tending to show that at the time the insurance was effected, it was understood that credit was to be given for the premium; that the agents of the company after-wards paid the premium to the company and received from Linton an endorsed note for the amount in payment thereof, which they had discounted, and that this note was afterwards taken up and a new note given for the amount of the first, with interest added, and that this note matured and was paid some days after the loss under the policy occurred.” It will be observed that the authorities cited, which are relied on by the appellant, deal with the payment of the premium by the agent in pursuance of an understanding with the insured, and where the amount of the premium is accepted by the company from the agent as payment of the premium. In the case at bar, the proof referred to furnishes no evidence that Mr. Weeks sent to the company the share of the premium due it in pursuance of any understanding or agreement with the insured, or that the company accepted it in payment of the premium. On the contrary, it tends to show, as we have stated, that neither the company nor Mr.'Weeks regarded it as payment of the premium, and that the money was sent to the company by Mr. Weeks and accepted by it with the understanding that if the premium- was not paid by the insured, it would be returned by the company to Mr. Weeks. In the case of Crook v. N. Y. Life Ins.

Co., 112 Md. 268 , Judge