74 Ind. App. 35 | Ind. Ct. App. | 1917
This is an action by appellee against appellant on a policy of life insurance. Issues were joined and trial was had by the court. At appellant’s request the court made a special finding of facts and stated its conclusion of law thereon. Judgment was thereupon rendered against appellant for $1,170 and costs, from which it appealed and assigned the following errors on which it relies for reversal:
Third: The court erred in its conclusion of law stated upon the special finding of facts. Fourth: The court erred in overruling the appellant’s motion for a new trial.
The special finding of facts is long and covers many pages' of appellant’s brief. For the sake of brevity, we have greatly abridged the same and only set out so much thereof as seems necessary for a proper understanding of the questions raised and determined. Such portion is as follows:
(1) That on November 10, 1911, the defendant executed and delivered to one Henry P. Doerr its policy of insurance on his life in the sum of $1,000; that said policy contained, among others, the following provisions in substance: The consideration for this policy is the application, and quarterly premiums of $14.13 to be paid in advance on the 10th day of November, February, May, and August in each year during its continuance. In the event of the death of the insured, the
(2) That at the time of the execution and delivery of said policy, the insured paid the first quarterly premium thereon in the sum of $14.13, and under date of November 7, 1911, executed to the defendant his three promissory notes; each for the sum of $14.13, due on February 7, May 7, and August 7, 19-12, respectively; that on November 24, 1911, the defendant executed and delivered to the insured its three premium renewal receipts for $14.13 each, dated February 10, May 10 and August 10, 1912, respectively, evidencing the payment of the quarterly premiums on said policy due on such dates.
(3) That the insured on February 7, 1912, and
• - (4)' That said promissory notes were never paid, or filed against the estate of insured, but were tendered back to the administrator of his estate on July 6, 1912, and were refused by him; that subsequently on June 30, 1914, the defendant brought said notes into court and delivered them to the clerk of this court for the use and benefit of the plaintiff, and any person entitled to the same, where they remained continuously since said' date; that no other tender of said notes was made, and no tender of any money was ever made by defendant to any one on account of the payment of said premiums; that the tender of said notes to the administrator and the deposit of the notes with the clerk of this court was not made with reasonable promptness; that proofs of the death of insured were duly made and forwarded to defendant on March 11, 1912, and no objections were made to their form or sufficiency; that such proof disclosed said facts as to the suicide of insured.
(5) That the insured had, prior to his death, performed all the conditions of said contract of insurance on his part to be performed, and the plaintiff had, prior to the bringing of this action, performed all the conditions thereof on her part to be performed; that the defendant, after the death of the said insured, and before the bringing of this action, waived the defense of suicide, and elected to treat said policy of insurance as valid; that interest on said policy amounts to $170, and the entire amount of principal and interest is $1,100.
The court stated as a conclusion of law on such findings that the plaintiff is entitled to recover from the defendant on the cause of action stated in her complaint the sum of $1,170, together with her costs. Appellant
It will be observed that it is expressly found that the policy in suit provides that if the insured shall commit suicide within one year from its date, while sane or insane, the policy shall be null and void, and that the insured did commit suicide within the time specified. Such facts would of themselves prohibit a recovery in this case, if it were not for the further fact, likewise expressly found, that the appellant, after the death of the insured, and before the bringing of this action, waived the defense of suicide and elected to treat said policy of insurance as valid. If this finding is sustained by the evidence, then the appellee would be entitled to recover under the facts found. We have therefore directed our attention to the evidence in order to ascertain if it supports such finding. An examination of the record has led us to the conclusion that the only evidence which in any way bears upon the question of waiver is the evidence which shows that appellant did not tender back said premium notes until July 6, 1912, and did not keep such tender good by depositing them with the clerk of the court in which said cause was pending until June 30, 1914, and never, at any time, tendered back any money on account of the payment of such quarterly premiums, all as stated in such special findings.
Appellant contends that such facts do not constitute a waiver of the defense of suicide, for the reason that no tender of either money or premium notes was required under the terms of the policy in suit. This seems to be the turning point in the case, and its determination will be decisive of the question involved.
“If the insured shall commit suicide within one year from the date hereof, while sane or insane, this policy shall be null and void.”
The further provision of the policy to which we refer reads as follows:
“The amount becoming due from the company by reason of the death of the insured shall be payable to the death beneficiary as follows: Elizabeth Doerr, wife of the insured, if she survives the insured, otherwise, to the insured’s executors, ad*44 ministrators or assigns, less any unpaid premium for the current policy year.”
We recognize the authorities which hold that an insurance policy is an unilateral contract, and that the premium therefor is a debt only when there is embodied in the policy itself an absolute promise to pay. Union, etc., Ins. Co. v. Adler (1906), 38 Ind. App. 530, 73 N. E. 835, 75 N. E. 1088; Supreme Lodge, etc. v. Hahn (1909), 43 Ind. App. 75, 84 N. E. 837; Supreme Tent, etc. v. Fisher (1910), 45 Ind. App. 419, 90 N. E. 1044. And hence we hold in this case that the insured was under no legal obligation to pay the last three quarterly premiums for which he gave his notes, and their payment could not be enforced during his life if such notes had not been given. He could have stood on the letter of his policy and paid or defaulted in the payment of the quarterly premiums as they matured as he might elect. If he paid, his policy would have continued in force, but, if he defaulted, his policy would have lapsed at the expiration of the thirty-one days of grace. However, he did not elect to stand on the letter of his policy, but chose to pay the last three quarterly installments of the
This is a reasonable interpretation of the acts of the parties in the payment and acceptance of such premium for the entire policy year and a fair construction of the terms of the policy in light of the language used, and leaves no room for the application of the rule that contracts of insurance will be construed against the in-, surer in case of doubt, as suggested by appellee.
It. therefore follows that the insured, by the execution of said notes, relieved his beneficiary from the possible deduction of any portion of such premium from the face of the policy, but paid no more than he was required to pay by its terms in order to keep the same in force for the whole of such current policy year in pursuance of his election so to do, as evidenced by the execution of
Judgment reversed, with instruction to sustain appellant’s motion for a new trial, and for other proceedings not inconsistent with this opinion.