Berliner v. Travelers' Insurance Co.

Citations

• 121 Cal. 451
• 53 P. 922
• 1898 Cal. LEXIS 931

Syllabus

<p>Life Insurance—Delivery of Policy—Waiver of Payment of First Premium.—The general agent of a life insurance company may waive the payment of the first premium and deliver the policy, and thereby make it a valid and subsisting contract of insurance, notwithstanding the provision in the policy that it shall not take effect until the first premium is paid while the insured is in good health.</p> <p>Id.—Possession of Policy — Prima Facie Evidence — Burden of Proof— Question for Jury.—The possession of the policy by the insured, or by the beneficiary, is prima facie evidence of its delivery as a valid and subsisting contract, and the burden of overcoming the prima facie case made by the production of the policy by the plaintiff, in an action to enforce it, rests upon the insurance company. Whether the defendant’s evidence did or did not overcome the prima facie case thus made by the plaintiff, was for the jury to determine.</p> <p>‘Id.—Proof of Waiver—Support of Verdict.—A verdict of the jury against the insurance company, which necessarily includes a finding that the policy was a valid and subsisting contract of insurance, is sufficiently supported by evidence that the first quarterly premium on the policy was charged to the general agent of the company, and that the waiver of advance payment was a purely personal matter with him; that the policy was delivered by him to the insured with the understanding that he could not then make payment; that payment was not thereafter requested, and no inquiry was made about the policy for more than two months and until after the death of the insured; that the insured was informed by the general agent, in answer to his inquiry, that he could travel in Mexico under the policy without securing a permit, and that he died as the result of a railroad accident during such travel. These facts constitute evidence of a waiver of the first payment, sufficient to support the verdict of the jury, notwithstanding the counter testimony of the