#### Hannah L. Regan, as Administratrix, Etc., Respondent, *v.*The Prudential Insurance Company of America, Appellant.

(Supreme Court, Appellate Term,

November, 1900.)

Life insurance — Offer and acceptance — Failure to revive a forfeited, policy, on the books, before the insured died.

Where forfeited policies of life insurance issued by a foreign corporation and its receipt for back premiums, executed by a local agent upon a proposed revival of said policies, stipulate that the corporation shall not be liable in case of death until the policy has been revived upon its books (at the home office), the death of the insured, before revival made on said books, precludes a recovery by her administratrix, as it is to be considered that a mere offer to revive had been made and that such offer had not been accepted and acted upon’by the corporation before the insured died. ■»

Regan v. Prudential Insurance Co., 32 Misc. Rep. 762, reversed.

Appeal by the defendant, from a judgment of the General! Term of the City Oourt of the city of New York, affirming a. judgment of the Trial Term of that court, in favor of the plain-*79tiff, after a trial had before the court and a jury. The material facts are stated in the opinion.

William 0. Campbell, for appellant.

Henry W. Sykes (Abraham I. Elkus and Henry W. Sykes, of counsel), for respondent.

Giegerich, J.

The action is on three policies of insurance issued by the defendant on the life of one Helen Regan, in favor of her legal representatives. The insured, who was working as a domestic servant, had left her home about a year previous to her death, which happened on the 28th day of November, 1898, and the premiums on these policies were paid weekly, by her sister, Hannah L. Regan, the plaintiff in this action. The said policies having lapsed for the nonpayment of premiums in the month of October (the date of the last payment being September 26, 1898), the insured through her sister, the plaintiff herein, signed three applications for revival, in identical form, each referring to its own particular policy by number, and containing, among other things, the following statement: “ I hereby declare myself, who was formerly insured under the above-named policy, to be in as good a state of health as when said policy was issued, and that, having allowed it to become lapsed, I wish to renew it upon the understanding that it will not be in force (although I now pay the arrears) until the company shall have consented to revive the same. Accompanying the application for the revival of the lapsed policies was the agent’s certificate, which embodies the following statement: *“*I hereby declare that I have collected all arrears on policy mentioned above; that I have this 26th day of November, 1898, personally seen the party formerly assured under that policy, that he appears to be twenty-nine years of age and in a good state of health. I, therefore, advise the company to revive the policy. W. Dackiowitcz, agent.”

It should be observed, in passing, that it appears from the evidence that the agent never saw the insured on the day in question, and that, hence the statement contained in the foregoing certificate, with respect to her health, were not founded upon personal observation.

Annexed to and forming part of the application was a certificate of health, which was to be filled in by a regularly appointed medi*80cal examiner of the company, when the arrears exceeded twelve weeks, but, when the amount of the insurance was $500 or over, this form of certificate was required, if the arrears exceeded five weeks. Such blank form contained the further statement that for amounts under $250, medical inspection would be accepted, and that for amounts of $250 and over medical examination would be required.

When these papers were prepared the plaintiff paid to the agent five dollars and forty cents, and received from him the following receipt: “ The Prudential Insurance Company of America, Home Office, 761 to 769 Broad Street, Newark, N. J. $5.40. November 26th 1898 received from Miss Regan five 40 $5.40 being the arrears on policy No. which the applicant desires the company to revive. Under no circumstances.will the company be liable under said policy in case of death, until the policy has been revived on the books of the company, and the money credited in the premium' receipt book belonging to said policy, Agent.

“If the company accept the revival application, the amount paid will be credited in the premium receipt book belonging with the policy, otherwise the money will be returned.”

The papers, constituting the revival application, were thereupon, on a Saturday evening, forwarded by mail to the. home office of the defendant-company in Newark, New Jersey. At four thirty a. m. on the following Monday, and before the receipt of the papers at the home office, the insured died of consumption in the City Hospital. Immediately upon receiving intelligence of the death of the in- ' sured, Mr. Zilz, one of the company’s district superintendents, notified the home office of the company by telephone of such death and advised that no action be taken upon the revival applications.

The plaintiff urges that her failure to perform certain conditions connected with the formal applications for the revival of the policies is excusable in view of the alleged representations on the part of the defendant’s agent, made at the time of the execution of the revival applications, that the policies would be revived by the payment of back premiums amounting to five-dollars and forty cents, and- upon which representations the plaintiff claims to have relied. The proof, however, does not support this contention, nor does it sustain the further claim that the company ratified the agent’s act in that respect. Indeed, his authority so to act is disputed by the defendant-company, the testimony of *81its superintendent and assistant superintendent being to the effect that not only he, the agent (using the term in its ordinary significance), but they, who had much more general powers, had no authority to revive lapsed policies, without approval by the main office, situate in a foreign State, and to obtain which approval all applications were forwarded to be acted upon. Moreover, the receipt given by the defendant’s agent to the plaintiff in terms, provides that under no circumstances would the company be liable in case of death, until the policy had been revived on the books of the company and the money credited in the premium receipt book belonging to the policy.

The court charged the jury that the authority of the superintendent and assistant superintendent was absolute, just as absolute as any authority of the defendant in the home office, and any act of theirs consistent with the transaction of any business of the company in the district of which they had charge, was binding upon the defendant. This was error, in view of the positive testimony of the superintendent and assistant superintendent that they had no authority to revive policies, but could report them to the home office for its approval. Their business was to attend to the numerous details, being nearer the scene of the transaction and the object of their being established in their district was for the greater convenience of the persons insured by the company, who would be put to considerable inconvenience, if required to journey to the home office in Newark, N. J., for advice or information connected with their policies.

The defendant’s counsel requested the court to charge the jury that neither the superintendent Egenolf, nor the assistant superintendent Zilz, nor the agent Dackiowitcz, had any power or authority to make, alter or discharge contracts, or to waive forfeitures, which was refused, and an exception was noted. The request was substantially in the language of one of the conditions of the policies in suit, and, therefore, should have been charged. Ellsworth v. Ætna Ins. Co., 89 N. Y. 186.

Evidence offered on the part of the defendant and tending to establish the general custom of the company regarding the revival of policies which had lapsed, was excluded by the court, and so, too, evidence of what was done in this spéeific instance; yet the jury were, in substance, instructed that they might make a finding of fact on the evidence as it stood. This clearly was error. With *82the exclusion of this evidence, it is difficult to perceive how the defendant could support its defense of want of authority on the part of the agent, beyond the bare statement of its superintendent and assistant superintendent that not even he, the agent Dackiowitcz, but they had no authority to revive the policies.

The receipt given to the plaintiff when she signed the revival applications contains the statement, that the money would be refunded should the appEeation be refused. The defendant contends, and we think the contention is borne out by -the proof, that there never was anything other than an offer to revive, that before the offer was accepted and acted upon the assured died, and it needs no argument to show that the company was not compelled ' still to proceed and revive the policies which had lapsed, after the death of the assured.

The judgment should, therefore, be reversed and a new trial ' ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gorman, J., concur.

Judgment, reversed and new trial ordered, with costs to appellant to abide event.