Miles v. Connecticut Mutual Life Insurance Company/Dissent Brown

Mr. Justice BROWN, dissenting.

I am compelled to dissent from the opinion of the court in this case. I think the company is estopped by its own act to set up the nonpayment of the premium as a defense. At the time the original policy was surrendered and the new ones taken out, there had been no failure to pay the premiums as they became due. The surrender was made without the authority or knowledge of the plaintiff, and it is admitted that it was not binding upon her, but it was made by one who did have authority to pay her premiums upon the original policy, and was accepted by the company, and, for the time being, the reduced policies were treated as the only contracts between the parties. In such case the plaintiff was at liberty to ratify the act of her agent or to repudiate it. She took the latter course, and brought suit upon the original policy. Under these circumstances, she ought not to be prejudiced by the fact that the agent whom she had authorized to pay the premiums betrayed his trust, and attempted to cancel her contract, unless she in some way adopted or confirmed his act. So far as the surrender was concerned, the defendant dealt with the insured at its peril, and was bound to ascertain whether his act was authorized or not, and is in no position to claim that the plaintiff should have paid the premium upon the original policy when it had itself treated it as canceled. Having elected to treat the original contract as at an end, it is estopped now to claim that the plaintiff had not performed it. 'It is a principle of law that he who prevents a thing from being done shall not avail himself of the nonperformance which he has himself occasioned.' 3 Add. Cont. 798.

I think the case of Whitehead v. Insurance Co., 102 N. Y. 143, 6 N. E. Rep. 267, is indistinguishable in principle from this, and is a sound enunciation of the law upon the point involved. In that case the court of appeals of New York held that, where a policy in full force was surrendered by the husband, without the assent of the assured, the subsequent failure to pay the accruing premiums did not alone warrant a forfeiture; that by the agreement of surrender the insurance company did an act the tendency and purpose of which was to prevent future payments by the parties interested, and the company could not defend upon a default to which its own wrongful act contributed, and but for which a lapse might not have occurred. It is true that it did not appear directly in that case that the insured stated that he was unable to pay the premium, but it does not appear that he was able to pay it, and it is safe to infer that he was not, or he would not have taken a policy for a reduced amount. In neither case was there an actual forfeiture by reason of nonpayment of premium before the new arrangement was entered into, though in both cases a forfeiture was probable.

The other authorities cited, though not directly in point, all indicate that, where the original policy is surrendered without authority, and a new one taken out, there can be no forfeiture of the original policy for nonpayment of the premiums, so long as the new policy is outstanding. Insurance Co. v. Smith, 44 Ohio St. 156, 5 N. E. Rep. 417; Garner v. Insurance Co., 110 N. Y. 266, 18 N. E. Rep. 130; Pilcher v. Insurance Co., 33 La. Ann. 322; Schneider v. Insurance Co., 52 Hun, 130, 4 N. Y. Supp. 797.

Inasmuch as no cases are cited of a contrary purport, it seems to me that these authorities settle a principle of law which ought not now to be disturbed.