Susq. Mut. Fire Ins. v. Elkins

Opinion, Mb. Justice Clark : . This suit is upon a policy issued by the defendants, December 10,T880, to William L. Elkins & Co. against loss by fire on the Belmont Oil Works, to the amount of §1,575. The contract covered a term of one year from December 1, 1880 ; the fire occurred March 9, 1881, and the loss apportioned to this policy is $710.36 ; as to this there is no dispute. The policy contained stipulations that the company should not be liable on the policy, or on any renewal thereof, until the premium therefor was actually paid, and the deposit made; that if the premium was paid to any person, other than the duly appointed or authorized agent of the company, such payment should be at the sole risk of the assured, and that nothing less than a distinct specific agreement, clearly expressed and indorsed on the policy, should be construed as a waiver of “ any printed or written condition or restriction therein.” The policy was sent to Crane for delivery to Elkins; the secretary himself says that Crane had the right to deliver the policy, and to collect the premium; to this extent, at least, Crane represented the company, for the contract was incom [496] píete until the policy was delivered. Mr. Crane testifies, however, that he was the agent of the company for certain purposes. He says, the secretary called to see him, and it was arranged that he should send business to the company; that, in pursuance of the arrangement, he did send applications for insurance, subject to their approval; that they wrote up the policies and sent them to him, as their agent and representative ; that it was part of the understanding that he was personally liable to the company for the premiums on policies sent to him, and that the company looked to him for these premiums, or for a return of the policies ; that he credited the company in an account with the policies received, or charged himself with the premiums, and that the company and he settled about the 15th of every month. All this was explicitly and positively denied by Huntzinger, the secretary of the company, who says that Crane was not the agent of the company for any purpose whatever ; but the veracity of the witnesses and the conflict in the testimony was for the jury,°and, adopting the verdict as a finding of the fact, it cannot now be questioned that Crane was an agent of the company, “ duly appointed or authorized,” to deliver the policy and receive the premium. But the company has offered in evidence certain by-laws of the company, with reference to which the policy was made and accepted, as follows: “ Sec. 10. All general and local agents or surveyors shall be appointed by the secretary, and shall be furnished with a certificate of his or their appointment, with the seal of the company affixed thereto, setting forth the powers of such agents, and without said certificate no person shall be, or is authorized to act as agent for this company.” “ Sec. 24. No insurance, whether original or continued, shall be considered as binding until the cash premium shall have been actually paid to some duly authorized and commissioned agent of the company.” “ See. 42. These, and all other by-l'aws hereafter adopted, shall not be abrogated, modified, or in anywise altered or added to, unless at a regular meeting of the board of directors ;'and all by-laws heretofore adopted by this company and inconsistent herewith are hereby repealed.” Whilst these by-laws are declared to be part of the contract, [497] they are not any part of the “ printed or written conditions or restrictions therein,” which, according to the seventh condition of the policy, can be waived only by a distinct, specific agreement, clearly expressed and indorsed on the contract; the seventh condition of the policy plainly refers, and refers only, to a waiver of any condition, printed or written, in the body of the policy. If Mr. Crane therefore was an agent of the company, “ duly appointed and authorized ” to receive premiums on policies delivered by him, it involved no waiver of any condition, contained in the policy itself, to bind the company by his act in so doing. It is argued, however, that as the company is a mutual company, the plaintiffs are presumed to be acquainted with the bylaws, and therefore had notice by the 24th section, that his insurance was not binding until the cash premium was actually paid to some duly authorized and commissioned agent of the company. The by-laws were made, however, solely for the protection of the company, and, as we said when the case was here before, the company was not bound to adhere to them. If they chose to dispense with the protection thus offered, it was competent for them to do so. If the company had issued this policy to Elkins, and expressly agreed to give him time on the ■payment of the premiums, taking his promissory note for the amount thereof, payable at a future day, it would not be pretended, we think, that because the premium was not actually paid, there was no liability in case of loss, during the period of credit. Or, if the company had placed the policy in the hands of some person expressly for delivery, with instructions to receive the premiums, and the premium was paid and the policy delivered accordingly, it would certainly not avail the company anything, in case of loss, that the premiums had not been paid to “ a duly authorized and commissioned agent of the company.” These by-laws were made solely in the company’s interest, and it was competent for the company in a particular case to waive strict adherence thereto. If, notwithstanding these by-laws, the company actually authorized Mr. Crane to act for them in delivering this policy, in receiving premiums thereon, and adopted a course of dealing with him wholly inconsistent with its provisions, they cannot now set them up to prevent the plaintiff’s recovery. This caso [498] is readily distinguishable from Marland v. Royal Ins. Co., 71 Pa. 393; Schaffer v. Mut. Fire Ins. Co., 89 Pa. 296; Greene v. Lycoming Ins. Co., 91 Pa. 387; and Pottsville Ins. Co. v. Improvement Co., 100 Pa. 137, cited and relied upon by the plaintiffs in error. In each of these cases, the company rested upon the positive provision of the policy, that it was not to be binding until the actual payment of the premium, and in none of them was the premium paid, or pretended to be paid, either to the company or to any of its agents. In this case, however, the agency of Crane was established by proofs satisfactory to the jury, and there was evidence from which the jury was justified in inferring that the company authorized the delivery of the policy and accepted the responsibility of their agent, in lieu of the security afforded by this provision of the policy. The judgment is affirmed.