136 Wis. 626 | Wis. | 1908
Lead Opinion
Tbe first and most important question is tbat of tbe true construction of tbe so-called automatic nonfor-feiture clause quoted in tbe statement of facts. This policy provided for payment of premiums considerably in excess of tbe cost of carrying tbe insurance, whether as fixed by tbe laws of New York or as ascertained by defendant’s actuaries. It therefore contemplated tbat at all times after tbe first payment tbe insured would have in tbe defendant’s bands a certain surplus or reserve fund belonging to him, which, but for agreement to tbe contrary, be should equitably have a right to withdraw upon discontinuance of tbe insurance. This policy provided against such withdrawal and, in effect, that defendant should keep this fund, and in consideration thereof tbat it would continue the insurance of $1,000 for six years and four months. Tbe policy, however, gave tbe assured an election to commute such $1,000 insurance for a limited time into paid-up life insurance of $164-, on written request made within six months after default in premiums. Tbe amount was to be tbe same whether be gave tbat notice at tbe beginning or tbe end of tbe six-months period. Tbat is, the assured at least could, if be chose, perpetuate the $1,000 liabil
This view is entirely consistent with, and, we think, confirmed by, the indorsement in fact made on the policy as
We conclude that at the time of the death of Henry 0. Clappenback, January 3, 1906, the policy was in full force as insurance for $1,000, and it is therefore unnecessary to consider whether he had effectively withdrawn his election to substitute paid-up insurance before the defendant had acted upon it.
By the Gouri. — Judgment reversed, and cause remanded with directions to enter judgment in plaintiff’s favor for $1,000, with interest and costs.
Concurrence Opinion
(concurring1). I concur in the result reached by the court in this case, but dissent from the grounds upon which such result is based and the reasoning in support thereof. To my mind the provision of the insurance con
Tbe assured was given tbe option of $1,000 of insurance for a limited time or tbe smaller amount absolutely, tbe former to be regarded as bis choice in tbe absence of notification to tbe contrary within six months. Eacing that plain language, to bold that tbe assured was given bis option to have absolute insurance for $1,000 for tbe limited time with tbe option to substitute tberefor tbe smaller amount of absolute insurance at the end of six months by notice to tbe company within sucb time, seems to be a plain judicial change of tbe contract tbe parties made for themselves rather than a construction thereof.
Tbe reference to tbe New York law prohibiting discrimi-nations and its application in support of the court’s decision, tbe theory being that any other construction of tbe contract would be a violation of sucb law, seems illogical, since, so long as every policy-holder of tbe class is given tbe same option, as is manifestly the case, there cannot be, in tbe very nature of things, any discrimination in bolding tbe parties to tbe plain terms of tbe writing.
Notwithstanding tbe foregoing it was doubtless competent for tbe company to relieve tbe assured from any mistake be may have made in making bis election to take absolute insurance and surrendering bis privilege as to tbe greater insurance for a limited time, long before tbe expiration of tbe period within which be was required to act in tbe matter expired. Tbe company acted commendably in writing assured, •calling attention to bis apparent mistake and expressing the