ARK.] GORDON V. NEW YORK LIFE INS: CO. 515 GORDON V. NEW YORK LIFE INSURANCE COMPANY. 4-3018 • Opinion delivered May 29,1933._ 1. INSURANCE—AUTHORITY OF SOLICITING AGENT.—There was no pre-. . sUmption that a soliciting agent had authorityto collect premiums on a life• insurance policy where the policy stipulated that no person had authority to collect premiums unless he held an official - premium receipt. 2. INSURANCE—PAYMENT OF PREMIUM.—While payment of the premium on a life insurance policy could be made without receiving the official premium receipt, as provided in the policy, the burden of proving such fact was on the party claiming insurance to show payment when disputed. 3. INSURANCE—PAYMENT OF PREMIU M.—A beneficiary was not en-'titled to recover on a policy, which provided. that .no person Could collect premiums unless he held an official receipt, where insured paid a premium to a soliciting agent who had no official receipt, and insurer never receiVed the premium.' • Appeal from Conway . Circuit Court; A. B. Priddy, Judge ; affirmed. • STATEMENT BY THE COURT. On October 11., 1929, the New York Life Insurance Company issned a policy of insurance to Shafter Gordon for the sum of $2,000 payable in, the, event of death to Mrs. 011ie E. Gordon as . beneficiary. •
- 516 -GORDON V: NEW YORK L -IFE INS. CO: [187 The policy of insurance so executed contained the following provision in reference to the p0 Tment and collection of premiums: "Payment of "Premiums.—All premiums are payable on or before their due date- at the home office of the company or to an authorized agent of the company, but only in exchange for the company's official premium receipt signed by the president, a vice-president, a second vice-president, a secretary or the treasurer of the company, and countersigned by the person receiving the premium. No person has any authority to collect a premium unless he then holds said official premium receipt. The premium may be made payable annually, semi-annually or quarterly in advance at the cora-pany's respective rates for such modes of payment, and the mode of payment may be changed by agreement in writing and not.otherwise. The payment of the premium shall not maintain the policy .in force beyond the date when the next payment becomes due, except as to the benefits provided -for herein atter default in premium payment." Shafter Gordon died on December 14, 1930, and thiS suit was instituted by the beneficiary, Mrs. 011ie E. Gor-don, against the New York Life Insurance Company, ap-pellee, in tbe Conway Circuit Court to effect collection of the proceeds of the policy. . In effect, the following facts were developed in the trial of the case: . That one Fiser was the local resident agent of the New York Life Insurance Company and resided at Mor-rilton in Conway County and solicited the application of Mr. Gordon; that the policy was issued by the New York Life Insurance Company and delivered to Mr. Goiaon by Mr. Fiser as its *agent ; that Fiser collected the first premium on the policy; that the second premium on tbe policy matured or became due on October 11, 1930. There was a provision in the policy which allowed thirty days' grace in which to pay the yearly premiums Within the thirty day period of grace allowed by the policy Mr. Gordon paid to the agent Fiser $57.62 as the prem-
ARK.] GORDON V. NEW YORK LIFE INS. CO. 517 ium from October 11, 1930, to October 1 . 14931, and , the agent Fiser executed the following receipt: "NoV. 5; 1930. "Rec'd of Shafter Gordon $57.62 for prenaiuni on his Life Ins, for one year for New York , Life Ins. Co. "By H.,Fiser." In reference to the payment of the premium to M,1% Fiser and Fiser's authority , to . collect the same, Mrs. 011ie E. Gordon testified, in effect, that Mr. Fiser. was.in their home very often while he was working for the -company ; that her husband had a. car, and Mr. Fiser different occasions induced her husband to go with him to different , places to get people to renewI their:insurance ; that Mr. Piser came to their home often, and her , husband drove him over, the. county to write insurance and collect premiums. Mr. B. T. Jones, , a witness on behalf of Mrs. Gordon, testified in reference to' fhe authority of M , . Fiser to collect the premiums, in e.ffeet, _ a s follo . ws : That he was present when Mr. Gordon paid his insurance premium on November. 4, 1930, to Mr. Fiser ; that he loaned Mr. Gordon the money with , which to pay it : that the amount was $57 and some cents; that he knew that Fiser had been representing himself as the agent of the New York Life Insurance Company and , had been soliciting business there at his place of business ,frorn different people ; he knew that Mr. Fiser .; solicited Mr: Gordon's policy of insurance. The witness was asked the following question : "You , know, that Fiser wrote it and was , collecting the premiums for the company? A. ,Yes, sir, claimed he was." , The above statement of fact is a fair representation of the facts produced in„the trial conrt in reference to the authority of, the agent Fiser to; collect-the annual premiuni on the policy of insurance . in; this controversy: The trial court held as a matter of law that the aboVe testimony did not establish ally authOrity in 'the agent Fiser to collect the annual premiuMs dne October 11, 1930; and thereupon directed the jury to- reftirn Yerdiet
-518 (1-oaDox' v: • NEW YORK LTFE INS. Co. [187 - :favor of.the insUranee company; and this-appeal:is prose- cuted to reverse that judgment. . _ - Edw. Oordor?,, for : appellant. W. P. Strait ' and Rose, Ilemingway,. .Cantrell LoughbOrough; fOr appellee., . Kiaut;J., (after . stating the facts). It is urged that the court erred in directing the verdict against appellant, the' beneficiary in the insurance policy sued on. It is not contended, nor was any testimony- introduced tending to 'show, that the Money, the second pre-'Ilium, claimed to ha.ve been paid to R. H. Fiser, a former agent who solicited -the insurance and collected the first premium, was ever : pid to . the' insurance coMPany, or reCeived by:it. He was 'only a ' special agent with limited authority' as shown fOr soliciting insuraride 'and not a general agent Within the- Meatting Of that terni. The policy provides for the payment of all _premiUMS -'on -Or 'before'their 'due date at the -hoMe o' ffice of the Compan, "Or . to an atithonzed agent Of the cOMpaity, but only in eichangu fOr . the cOmpany's official prentiuth receipt signed bY thu fiyesident, vice-president, , a. second viceqp reSident, .a-Secretary Of the: treasurer of the company; and 'countersigned by . thu personl'eceiving the premium. No person has:any authority to:collect a 13rem-ium unless he then holds said Official premium receipt:" The testimonY also tended to sbow that FiSer's au-L tli:Ority . to represent the ComPany:as , a sOliciting agent had been terminated by the coMpanY before thu Money fdr the payment:of the 'premium Was received by hini and, without regard to whether the testimony is undisputed tbat notice of the' discharge 'of the agent Who -collected the second premium for the insuranee was brought home to the instired befOre the payment thereof, there is no presumptiOn that hiS authority to receive payment for premiums' cOntinued, since; 'after such first payment of said first premium; his • atitliority was limited by the terms of the policy, or rather. the:insured had knowledge by, its terms that premiums could be paid' only at : the home . office or to. an authorized agent. of the company; "but:only in exchange for.,the company's officiatreceipt,
etc.," and, "No . person- has :any authority. to collect a • premium unless, he then holds .said •official premium receipt." . - Of course, due . payment of the premium might have been made without reCeiving Such a receipt, but the burden of proof would be on the party claiming said insurance to show' that it had- been paid, when disputed;•and there• was no testimony showing the payment of this premium to an authorized agent ot: that the company itself ever received the money:. If it had been Shown that the 'Money Vas paid in fact • to the insurance Company, a different question wOuld be presented, but thete is •no- such qUestiOn in this case 6f. ratification or estoppel bf. 'fife ''6OMParty to deny the payment. . In United Friends .: of Amerie . v. P1illips, 186 Ark. 70, 52 S. W. (2d) 628, cited by appellant, the facts..are unlike:those in this case, and:it haS ho .: aPplication here, beihg altogether different, the dues,or: premihms therein having. been. actually • Paid tO.and received bY the seCre-. tary, which was a gufficient payment under the circumstances. . There was no issue to be. submitted to the jury upon - the undisputed proof herein, and . the court did .not err in directing a verdict,,.and the judgment must be .affirmed. It: is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.