Collman v. Equitable Life Assurance Society of United States

133 Iowa 177 | Iowa | 1907

Deemer, J.

The sole question made by the demurrer is that plaintiff’s action is not barred by the statute of limitations. It appears from the allegations of the petition and of the answer that plaintiff became a policy holder in the defendant company on the 10th day of August, 1891-, and that he paid three annual premiums, to wit, on the 22d days of July, in the years 1891, 1892, and 1893. The policy was for $1,000, and defendant agreed to pay that amount to plaintiff’s executors, administrators, or assigns upon satisfactory proof of death, etc. Attached to plaintiff’s application for insurance was the following under the head of the list of privileges: “II. Non-Forfeiture. If premiums upon the policy for not less than three complete years of assurance shall have been duly received by the society, and default shall be made in payment of subsequent premiums, the policy may be surrendered for a non-participating paid-up policy for tbe entire amount which the full reserve on the policy, according to the present legal standard of the State of New York will then purchase as a single premium, calculated by the regular table for single premium policies, now published by the society duly receipted within six months after the date upon which the last premium in default has fallen due; otherwise the policy shall cease and determine and all premiums paid thereon shall forfeit to the society.” And in the policy itself was the following 'under the heading “ List of Privileges,” “ the details of which will be found in the applications.” “ It provides for a paid-up policy after three years for as many twentieths of the original policy as complete annual premiums have been paid.”

The policy had not been returned to defendant duly receipted at the time this action was commenced, nor was any demand of any kind made upon defendant until about March 28, 1905, when plaintiff requested of defendant that it issue him a paid-up policy of insurance for the sum of $150. This action was commenced September 19, 1905. Under our statute actions upon written contracts must be commenced within 10 years after their causes accrue. Code, section 3447, subdivision 7. The stipulation for the paid-up policy was a privilege conditioned upon return of the policy duly receipted within six months after the date upon -which the last premium in default fell due, and, if this was not done, the policy was to cease and determine and “ all premiums paid thereon should be forfeited to the society.” The condition above named was to be performed by plaintiff before any liability would attach to issue a paid-up policy. Plaintiff did not pay the premium matur-' ing July 22, 1894, nor did he make any-demand upon defendant for a paid-up policy until March 28, 1905; giving him six months from July 22, 1904, within’which to return his policy duly receipted. He did nothing until more than ten years from the expiration of this period; so that, if we treat bis cause as accruing on January 22, 1895, bis action is fully barred by statute. Plaintiff could not toll tbe statute by delay in making bis demand and return of tbe policy. Baker v. Johnson Co., 33 Iowa, 151; Mickel v. Walraven, 92 Iowa, 423; Grand Lodge v. Graham, 96 Iowa, 592, and cases cited. By reason of tbe peculiar nature of certificates of deposit, this rule does not apply to such instruments. Elliott v. Capital City Bank, 128 Iowa, 275. But a policy of insurance has none of tbe elements of a certificate of deposit issued by a bank. If it did, tbe policy issued in this case provides that, if tbe policy is not returned duly receipted within six months, it is to cease, and all premiums paid thereon shall be forfeited to tbe society. No statute has been called to our attention making such a provision invalid, and, in tbe absence thereof, there is no rule of public policy forbidding it.' It is’ contended for appellant that be was entitled to a paid-up policy of insurance for $150 after making bis three annual payments, and, if this be true, his cause of action then accrued. He made no demand and commenced no suit until more than ten years after be was entitled to bis paid-up insurance. His neglect to make demand until after tbe expiration of tbe ten years does not aid him in any way. Tbe trial court was right in overruling the demurrer, and tbe judgment must be and it is affirmed.