Braswell v. American Life Insurance

Pearson, C. J. If the plaintiff was in default, by failing to pay the premium when due, he forfeited his policy and lost the amount before paid as premiums. If the defendant was in default, by cancelling the policy positively and peremptorily, the plaintiff has a right to recover back the amount paid as premium and interest thereon as “ money had and received for his use; ” or upon a promise of the defendant to indemnify and save him harmless, which the law implies from the "wrongful act of the defendant in the cancellation of the policy; in which case the measure of damage would be the amount necessary to enable the plaintiff to obtain another policy, if su minded, which of course would be much higher in respect to the premium, inasmuch as he is several years older than he w7as w’hen he first obtained the policy; but the case need not be complicated by this consideration, as the plaintiff is content to take back his money with interest, and be quits of all further connection with defendants. The question is, who was to blame for the default of Dear-ing, the insurance agent ? The defendant’s place of business was in Philadelphia, the plaintiff resided in the county of Edgecombe, and Dearing, the insurance agent, kept his office in Wilmington, N. C. The plaintiff made several paj^ments of premiums to Dearing, by sending him the money and .receiving in turn a receipt under the corporate seal of the defendant. This course of dealing was known and approved *11 of by the defendant, and it furnished Dearing with the proper receipts, under the corporate seal of the company. For some cause satisfactory to itself, the defendant revoked the, agency to Dearing, and did not as before, furnish him with receipts under the corporate seal; the plaintiff sent the money to Dearing, having no notice of the revocation of his agency, except what is claimed to be constructive notice — by reason of the entry on the back of the policy “ receipts for payments will not be valid unless given under the seal of the company.” The fact that the defendant had revoked the agency of Dearing and refused to furnish him with receipts under the seal of the Company, 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 insured 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 Company says, in order to guard against unfaithful agents, it is put on the back of the policies “ no receipt valid unless under the seal of the Company.” Let it be so ; but when by the previous course of dealing the defendant had knowledge of the fact, that the money was transmitted in the. first place to Dearing and then the receipt was returned, how can the defendant excuse itself for failing to notify the plaintiff not to transmit the money to Dearing, as his agency wTas revoked? Fair play required this much. The suggestion that Dearing was the agent of the plaintiff — that is to say, that the gentlemen who go about the country soliciting people to take life insurance policies are the agents of the insured and not of the Company, is simply ridiculous, and must be disregarded or treated as an attempt to swindle. These agencies by which a corporation in Philadelphia is enabled to do business in North Carolina, are for the benefit *12 of the corporation. The corporation appoints the agent,. .pays him, and he is its creature; how can his unfaithfulness toe charged .to the insured ? There is no error. Per Curiam. Judgment affirmed.