74 Minn. 387 | Minn. | 1898
Lead Opinion
(After stating the facts of the case as they are given above). If any regard is to be given to the plain and unambiguous language of the parties, nonpayment of the premium according to the terms of the policy would ipso facto render the policy void, unless there had been some act of waiver on part of the company. No declaration of forfeiture would be required unless rendered necessary by some prior course of dealing. Unless we regard certain dicta in Mutual v. French, 30 Oh. St. 240, as an exception, the authorities seem to be unanimous to this effect in construing policies like the present. This is equally true under the subsequent modifications
“This note is given in part payment of the premium due September 16, 1896, on the above policy, with the understanding that all claims to further insurance and all benefits whatever which full payments in cash of such premium would have secured, shall become immediately void and forfeited to the New York Life Insurance Company if this note is not paid at maturity, except as otherwise provided in the policy itself.”
This exception refers to the “nonforfeitable” provisions of the policy, which in this case had not taken effect. The contemporaneous receipt, which formed part of the contract, says,
“Which continues said policy in force until the 16th day of September, 1897, at noon, in accordance with its terms and conditions; provided the above note is paid at maturity.”
If there would otherwise be any doubt as to the construction of the contract of the parties, it is conclusively resolved in this case in favor of the defendant by the decision of the court of appeals in Holly v. Metropolitan, 105 N. Y. 437, 11 N. E. 507.
2. There was no waiver on the part of the defendant of this condition of the policy, either by a prior course of dealing or by its subsequent conduct. The fact that the defendant had granted the insured two extensions of time for the payment of part of the premium which fell due September 16, 1896, gave him no right to assume that the company would grant the third extension on the same premium; and certainly it gave him no right to assume that it would grant him a further extension on different terms, or waive a forfeiture already incurred.
In the transactions of September 16, 1896, and March 16, 1897, the insured paid part of the premium in cash, and gave his note for the balance, while his policy was still in force, but when the last note became due, on May 16, 1897, the insured did absolutely nothing until June 18, 1897, — 32 days after his policy was forfeited, unless kept alive by the failure of the company to give another
There is nothing in the semblance of a waiver in the company’s letter of May 26 to the insured. A perusal of that letter will show that it assumes that the policy was already forfeited, and has reference solely to bringing about some arrangement by which the insured might be reinstated, and the policy put in force again, on terms to be thereafter mutually agreed upon.
Nor, under the circumstances, do we see anything in the mere retention of Banholzer’s note of March 16, 1897, which tended to prove a waiver of a prior forfeiture of the policy, whether the note fell with the policy or whether it remained in force by virtue of the provision that, if the policy became void by reason of the nonpayment of any premium “a.11 payments previously made shall remain the property of the company.”
3. The next and last contention of plaintiff is that the “premium notice” required by the statute of New York applied to the note which fell due May 16, 1897, and that the policy could not become lapsed or forfeited for the nonpayment of the note without the company giving the prescribed notice of not less than 15 nor more than 45 days prior to the day when the note, by its terms, became payable, notwithstanding the fact that the defendant had already given such notice before the premium became payable the preceding September. Even if the question was res nova, I am clearly of the opinion that, upon the facts, this statutory provision has no application to this note. But, as my brethren do not agree with me in this, it would be useless for me to enter into any discussion of the reasons for my opinion.
The parties mutually' agreed that this should be deemed a New York contract, and construed according to the laws of that state. The decisions of the highest court of that state as to the construction of such a contract and of the statutes of New York must, therefore, be accepted as conclusive upon the parties.
In Conway v. Phoenix, 140 N. Y. 79, 35 N. E. 420, upon a state of facts and under a statute which, in our opinion, are in no way distinguishable from those involved in the present case, the court of appeals held that the notice required by statute did not apply to
Order affirmed.
Appellant having applied for a reargument, on December 21, 1898, the court granted a reargument upon the single question whether the “premium notice” required by the laws of New York applied to the notes given by the insured for part of the premium which became due in September, 1896.
The following opinion was filed January 30, 1899:
Upon the original hearing of this cause, counsel for the plaintiff contended, in his oral argument, that the statute of New York applicable to this case was materially different from that considered in Conway v. Phoenix, 140 N. Y. 79, 35 N. E. 420, but did not suggest that that case and the one at bar were distinguishable in their facts. We therefore inadvertently assumed that he did not claim any such distinction. But, upon our attention being subsequently called to the matter, we discovered that we were in error, and that in his printed brief he did claim that the two cases were distinguishable; and for that reason we granted a reargument of the single question whether the premium notice required by the statute of New York was applicable to the notes which the insured gave for part of the premium which became due in September, 1896.
Upon examination, we are satisfied that the two cases are distinguishable in their facts, inasmuch as in the Conway case the court in the first part of the opinion held that the agent had no authority to grant an‘extension of time for the payment of the premium, and hence that the deceased was uninsured from the time that he defaulted in the payment of the premium, according to the terms of the policy. Hence the question of notice might have been disposed of on that ground. But we are now equally well satisfied that in what the court said on the subject of notice in the last part of the opinion it intended to and did decide the question upon the assumption that the company was bound by the
The statute was no doubt enacted for the benefit of the insured, recognizing the fact that very often they were people who were neither experts nor systematic in business matters and therefore liable to overlook or forget the due days of their premiums according to the terms of their policies, issued perhaps years, before, laid away and seldom examined or referred to. And, while courts are usually liberal in protecting the assured against forfeitures, this is always done in the interest of justice, and is no reason why any strained or forced construction should be placed upon this statute, which would be unreasonable or operate oppressively upon the insurers or which was not within the legislative intent. The premiums on life insurance policies are always- payable at stated periods, specified once for all in the policy during its life. They are usually payable yearly, sometimes every six months, and occasionally quarter-yearly.
It seems to us that it was these periodical due days, as fixed in the policy itself, which the legislature had-in mind, and to which the statute refers, and not to an extension of time for the payment of a particular premium after it has become due according to the terms of the policy. These extensions are usually, and probably always, granted at the instance, and for the accommodation, of the insured. They are always the result of a special and express agreement, which brings the whole matter presently to the mind of the insured. They are necessarily for a comparatively short time. They are therefore not within the mischief' of the statute, at least not to
For these reasons the opinion heretofore filed is adhered to.
Dissenting Opinion
(dissenting).
I cannot concur in the foregoing opinion. What was said in Conway v. Phoenix, 140 N. Y. 79, 35 N. E. 420, as to the question here involved, is mere dicta. By every sound rule of interpretation, the letter of the statute of New York applies to a case where the time of payment of an instalment of the premium has been extended, and, clearly, such a case is within the spirit of the statute, and notice should be given of the time when the instalment, as thus extended, will fall due. The object of the statute, like that of the usury law, is to protect people from themselves, by preventing them from making foolish contracts. The policy of this law is the same as that of the law which allows a specified length of time in which to redeem from a real-estate or chattel mortgage, and prevents the forfeiture of property rights without notice or warning, which must be given a certain length of time in advance.
It is well settled that the parties for whose benefit those statutes are passed are not allowed to waive the rights given them by the statute, and the courts will not listen to any subterfuge by which the statute is attempted to be evaded. But, according to the decision of the majority, the statute here in question may be evaded merely by extending the time of payment a single day or a single
There is nothing in the argument that the statute should not be held to apply, because, if it did, an extension for one or two days would amount to an extension for fifteen days. The very purpose of the statute was to prevent people from making contracts which they might have made before its passage, and the law should not be brushed aside merely because it accomplishes this purpose. Suppose a law to prevent the forfeiture of mortgaged chattels on the due day provided that a chattel mortgage should be foreclosed by giving 15 days’ notice, to expire on the day the mortgage debt fell due; could it be held that the law did not apply merely because there were only 10 days from the time of the execution of the mortgage to the day the debt fell due? Again, could such a law be evaded by extending the time of payment?
In my opinion, the statute applied, and the order appealed from should be reversed, and a new trial granted.
An appeal having been taken by plaintiff from a judgment of the district court entered therein pursuant to the preceding opinion, the following opinion was filed on April 7, 1899:
This is an appeal from the judgment of the district court for the county of Ramsey, in favor of the defendant and against the plaintiff.
For the reasons stated by this court upon the former appeal herein from an order denying a motion for a new trial, the judgment is affirmed.