Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-24

MARIANA X. CLEvEkGgn,
IhE MUTUAL LIFE INSURANCE CoMpANy
OF New YORK, appellant.
Appeal from the District Court of Yank.
ton county. 4
Gamble Brothers, attorneys for appellant.
Oliver Shannon. attorney for respondent.
Continued from yesterday j
FIRST, that the local agent whether he be
a special or general agent has. no authority
by virtue Of his powers ns such agent to al
Tor. enlarge, modify, or in fact to do any &C,
hltsctir-' The rights Of the parties 10 the con.
tract o! assurance.
second, that an insurance company may
insist upon tht tnfnrcement Of the con,rac,
OF insurance az embraced in the written
agreement.
Third. the INSURANCE company may waive
a forfeiture in its favor, and that The fact,
that the company has adopted or sanctioned
parole.
Fourth. that evidence Of a particular
transaction of the kind on a former uccasion
Is net sufficient to establish q custom.
Fifth, the custom and usage of the com-
pauy as TO extension Of time being es,ab-
llshed, parole evidence may be received 10
show the extension of time In the partjcr.
lar case.
In the case st bar there being no evidence
tending to prove that the insurance company
by custom or otherwise had departed from
or sanctioned a departure from the written
contract. the district court erred in allowing
evidence to be given, as to what ia claimed
as u contract between Farmer, the neent.and
Clevenger, the assured, there being no foun.
dalton Tor the Introduction Of such evidence.
Again the court in instructing the inry
made use Of the following language:
|. "A Representations may be oral or in writ.
Ing, and it may be made at the same time
with issuing the policy or before it, and lis
language is to be Interpreted by the same
rules as the language OF contracts in GEN
erai."
AS applied 10 the case al bar this ~ins,ruc.
hon Is erroneous, as contracting parties
agreed most solemaly tina, as to this CON
tract no statement OF an sgent should be
pinuing upon the parties. unless in writing,
anc this agreement must prevail.
The following question was p,opoundcd
to the witness Clevcngcr:
state what occurred, ii ANYTHING did oc.
cur between you aud Mr.. Mark Nj.
Palmer, and what representations.
if any. were made by said Par
mer, 10 induce you 10 take The life insu.
rance policy in question:"
no this otter the defendant objected fer
the following reasons" because ali con.
vcrsttlons and agreements between The wit
ness and said Primer were merged into the
written application then signed by said wi,
ness, and the policy sfterwa,d. Issued to the
plaintiff. which was in writing, showing I'D,
on the face thereof that said Farmer could
not vary the terms thereof, because said
Palmer was not a party to said contract.
and had no authority to make any represcn
tations contradictory 70 the SANE, which
fact the plaintiff we'll knew from the face
thereof"
Because no proofbas been int,o lrcsd tha,
the agent had authority TO make any other
inducements than such ns are in writing.
and the defendant is no, bound by such
statements" These objections were over
ruled.
The evidence here given was manifestly
improper The objection ia the evidence
was timely and should have been sustained.
Among other Instructions asked by de-
fendant's counsel We ind the following,
which we think were crreneously refused
Ninth, IF the policy rccites on the face
thereof that said agent had no authority to
make, alter or discharge contracts, and tl,at
all the agreements were in writing, then
said Ggeut, Palmer. had no authority TO
make any of The alleged representations or
agreements claimed by the plaintiff; and
even if they were made, they ere VOC as
against the defendant. for whea The piaiu-
till accepted such policy. she was bound to
know It's c>ntents, ami was bound to know
that sad agent was not q party 10 s.i.l con-
tract" (Refused
Eighteenth, Even ii the jury should find
that the representations aud agreements
claimed BY plaintiff were actually entered
into. their verdict must be for the defend
ant. Because neither the insured or agen,
complied with the express directions of tie
company in changing or altering the condi.
lions OF The contract, and the &C. of The
agent cannot be considered as a waiver Of
the conditions by the company so as TO bind
1t. or in ANY manner affect lis rights" IRE.
iused.)
Twenty.frst, Any agreeu,eit or, state.
rnent by the agent or plaintiff was bound
TO be in writing aud submitted TO the de-
PENDANT at its general Office, With the appli
cation. aud you are instructed rot TO take
iuto consideration parole statements in max.
ing up your verdict" (Refused.)
!, Without prusuing this matter further We
are already of the opinion the judgment of
the district court should be reversed.
II may be inferred from wha, has been
said as TO the right OF sn insurance comp.
ny to extend the time for the payment Of
premium notes or to waive a forfeiture, tina,
i, follows that the company may lawfully
contract with a particular person taking in.
surance on a different plan or basis, than
applies to all others.
Such however is not our judgment. Over
one hundred and tfty-seven thousand indi
viduals have insured in defendants COM
pany.
By the terms of which. taking the agree
ment IN this case as a basis, it appears that
on the surrender Of the policy the parties
surrendering is entitled TO receive the true
aud equitable value of the policy surren.
dcred. This being SO, we do not see how
this rule can be changed. not even by the
officers Of the company. A change to any
other plan would be a fraud upon every in
dividusl holding 6 policy ip the company:
Much has been said upon tbs argument Of
~, ,,., .hon, the fraudulent conduct Of