93 Neb. 634 | Neb. | 1913
Action on a policy of life insurance. A trial in the district court for Douglas county resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.
It appears that, by the policy in question, defendant insured the life of Henry F. Oady for the sum of $25,000, payable at his death to his wife, who brings this action. The policy was issued on the 24th day of April, 1893, for the consideration of the application and the payment of an annual premium of $465.25, payable in advance on the 21st day of April of each year during the life of the assured. The contract was not to take effect until and unless the first premium was paid while the assured was in good health. The policy further provided that, in case of default in the payment of a premium, after the third, the contract should remain in force for the terms specified in the table of paid-up term insurance, indorsed thereon. There was also given the assured the option, upon certain conditions, to take the paid-up value of the policy in money, due him at the time of the default, or to consider the policy as converted into paid-up term insurance for the time designated in the table above mentioned. All provisions of the policy which are not involved in this controversy are omitted from this opinion. It is agreed
Defendant assigns error for excluding from the evidence the letters of the assured in which he notified the defendant of his refusal to pay the premium due on the 21st day of April, 1902, and in which he declared his option to claim paid-up term insurance for seven years and eight months from that date, as indicating the construction of the contract by both the assured and the defendant; and for the refusal of the trial court to direct a verdict for the defendant. The foregoing assignments present the only questions which are necessary for us to determine upon this appeal.
1. In disposing of defendant’s first contention, it is sufficient to say that it appears that the trial court received in evidence the letters of the defendant company by which the assured was notified of his default in the payment of his annual premium due on the 21st day of April, Í902, and in which its payment was requested, but excluded the
2. As we view the record, there is no dispute in relation to the facts of this case, therefore the court should determine the main question, and finally dispose of this action, thus preventing further litigation.
It is plaintiff’s contention that the defendant waived the conditions of the contract,, extended the time for payment, and thereby changed the time from that fixed by the terms of the policy itself to another date at which the term insurance in question commenced to run, by the no
In Parker v. Knights Templars & Masons Life Indemnity Co., 70 Neb. 268, it was held: “A permanent waiver of a condition in a policy of insurance would not be inferred from occasional indulgences shown a policy holder. No implication of a waiver of the terms of a contract can arise from acts which may be construed as a compliance with such terms.”
In Driscoll v. Modern Brotherhood of America, 77 Neb. 282, it was said: “A waiver of a condition will not be implied from an act not inconsistent with an intention to insist upon performance.”
In Sharpe v. New York Life Ins. Co., 5 Neb. (Unof.) 278, it was held that the giving of a note extending the time for the payment of a past-due premium, which contained an agreement providing for the forfeiture of the .rights of the assured if the note was not paid at maturity, default having been made in such payment, did not operate as a waiver of the terms of the policy providing for forfeiture in case of nonpayment of premiums. We think this rule is sustained by the great weight of authority in this country. Thompson v. Insurance Co., 104 U. S. 252; Nederland Life Ins. Co. v. Meinert, 199 U. S. 171.
In Stephenson v. Empire Life Ins. Co., 76 S. E. (Ga.) 592, the question of the effect of a request for the payment of a past-due premium was before the court. In that case the life insurance policy contained a stipulation that if any premium is not paid on or before the day it is due, or if any note or obligation that may be accepted by the company for the whole or any part of the first or any subsequent premium, or any other payment under this policy, be dishonored or not paid, on nr before the day when due, this policy shall, without any affirmative act on the part of the company, or any of its officers or agents, be annulled and void, except as herein provided. It was held that a failure to pay a note for a portion of the first annual premium when the note became due worked a for
Upon this question we are not without authority of our own. In Swett v. Antelope County Farmers Mutual Ins. Co., 91 Neb. 561, it was held that making a demand for a payment hv a mutual insurance company of an assessment upon a policy of insurance, subsequent to a loss under such policy, will not he held to be a waiver of its terms, in the absence of a plea and proof of payment by the assured .of such assessment.
Schmedding v. Northern Assurance Co., 170 Mich. 528, was a case where an insured, upon giving his notes for his annual premium when it became due, was granted an extension of several months, and then failed to pay the notes at maturity. His policy lapsed and became void at once. The statute- provided that every insurance policy should contain a provision giving the insured one month of grace for the payment of every premium after the first year, and the policy conformed to the statute. It was held that the facts in connection with the statute did not entitle the insured to two periods of grace.
As we view the facts of this case, the defendant’s request for the payment of the past-due premium, not complied with, but, on the other hand, which was positively refused, did not have the effect to change the conditions of the policy; and the term insurance provided for thereby commenced to run on the 21st day of April, 1902, and expired by lapse of time on the 21st day of December, 1909. Johnson v. Mutual Benefit Life Ins. Co., 143 Fed. 950; Roehner v. Knickerbocker Life Ins. Co., 63 N. Y. 167; Wilkie v. New York Mutual Life Ins. Co., 146 N. Car. 513, 60 S. E. 427; Grattan v. Prudential Ins. Co., 98 Minn. 491; Rye v. New York Life Ins. Co., 88 Neb. 707; McLaughlin v. Equitable Life Assurance Society, 38 Neb. 725.
It is contended, however, that the understanding and the acts of the assured and the defendant could not. in any
As we view the case, we are constrained by the authorities to hold that it was error for the district court to refuse the defendant’s request for a directed verdict.
The judgment of the trial court is reversed; and, as there can be no recovery in this case, the plaintiff’s action is dismissed.
Reversed and dismissed.