Nоrma Lois COOPER, Plaintiff and Respondent, v. FORESTERS UNDERWRITERS, Inc., Defendant and Appellant.
No. 8105.
Supreme Court of Utah.
Oct. 29, 1954.
275 P.2d 675
The only independent evidence which might tend to establish a corpus delicti and lend credence to the confession here, is the testimony of the deputy, the substance of which, at best, was the statement of a person that refused to appear and subject herself to cross-examination, thus precluding any test of the truth of the statement purportedly made or the veracity of the one who made it. Such hearsay, even though admissible under an exception to the hearsay rule,4 but of doubtful materiality in this case, in our opinion falls far short of the quantum and quality of independent evidence which the authorities require in proving the corpus delicti before a confession may be used to establish guilt. To hold otherwise would open the door to possible injustice from the fabricated testimony of one, who, knowing that a person could not or would not appear to testify, and without fear of recrimination, easily could put words in the mouth of an absentee that could be highly prejudicial to an accused when viewed in the light of the latter‘s confession. Our traditional zeal in safeguarding the rights of an accused would preclude conviction on such an unsubstantial basis.
Besides the above, the evidence adduced by the deputy‘s statement was that merely of a second confession. To say a second confession, with nothing more, could be used to prove the corpus delicti, obviously would be to devour the rule itself, which is predicated on the fact that one confession alone, with nothing more, cannot prove the corpus delicti, there being no magic or significance to a repetition thereof.
McDONOUGH, C. J., and CROCKETT, WADE and WORTHEN, JJ., concur.
such rule, already announced in Arizona in Burrows v. State, 38 Ariz. 99, 297 P. 1029, is the soundest of those heretofore enunciated by the authorities. See also, State v. Crank, 1943, 105 Utah 332, 142 P.2d 178, 170 A.L.R. 542.
Frank E. Moss, County Atty., Salt Lake City, for respondent.
McDONOUGH, Chief Justice.
Defendant is a fraternal benefit society which issued a certificate insuring the plaintiff against medicаl, surgical and hospital expense. The policy required payment in advance of monthly premiums and provided that all periods of insurance shall begin and end at twelve o‘clock noon of the last day of the month beginning March 31, 1951. A grace period of 31 days after the premium was due was granted under the contract, during which time the insurance was to remain in full effect. Plaintiff did not pay her premium for the months of September and October until October 31, 1951, in the evening. She submitted a claim against the society for reimbursement of
The first question confronted is whether the time of the grace period should be measured under this policy from noon of the last day of the preceding month, September 30th, or whether the grace period began on October 1st and continued through the entire day October 31st.
The parties to the contract agreed that thе periods of insurance should begin at noon of the day of execution even though the premium was paid at 9:00 p. m. While this gave the insurer an advantage of receiving payment for nine hours when, in fact, the insured was not covered, we know of no public policy which would preclude the parties from antedating their contract so as to make the times of performance, liability, and termination more readily ascertainable. Thus, the first period of insurance began on March 31st at noon and ended April 30th at noon. Plaintiff‘s policy lapsed at noon, October 1st, when she failed to make a payment due on August 31st for the month of September within the grace period allowed. By paying the premium on the afternoon of October 1st, she reinstated the policy in accordance with a provision of thе contract cited later. By accepting this premium due for the month of September, the company accepted the liability of the 31-day grace period which came into existence upon the termination of the September period, at noon on September 30th. Again, upon plaintiff‘s failure to pay the October premium, the certificate lapsed on October 31st at noon аnd the effect of the subsequent reinstatement that evening must be governed by the contract.
It is plaintiff‘s position that the certificate at no time lapsed, for, she contends, the 31-day grace provision is not governed by the provision making the period of insurance from noon on the last day of one month to noon on the last day of the following month. She claims, instead, that the 31-day grace period must be сomputed in accordance with
As to the effect of the reinstatement of the policy, the certificate provides:
“(4) If default be made in the payment of the agreed premium for this Certificatе, the subsequent acceptance of a premium by the Organization or by any of its duly authorized agents shall reinstate the Certificate, but only to cover accidental injury thereafter sustained and such sickness as may begin more than ten (10) days after the date of such acceptance.”
Plaintiff complains that she has paid premiums in the same amount as though she had kept current in her payments, but was exсluded from coverage for the afternoon of her injury. This is true, but the court cannot rewrite the contract for the parties and, according to its unambiguous terms, a condition of the reinstatement was the exclusion of any injury sustained prior to the acceptance of the overdue premium.
Plaintiff further contends that the organization had waived its rights to demand payment in advance of premiums by accepting premiums late at other times. With the exception of the premium paid on October 1st, all prior payments were paid within the grace period before the policy lapsed. As to the October 1st acceptance, the contract was reinstated in accordance with the provision of the policy; likewise the payment made on October 31st. Plaintiff must be charged with the knowlеdge of her contract and we cannot find that any belief that the company would accept late payments as a continuation of the policy rather than a reinstatement could be reasonably induced by the company‘s behavior. She had a right to reinstate subject to the exclusion of any accident occurring prior to the acceptance of the premium and cоuld not reasonably have believed that the acceptance of the premium was to cover the entire period of time preceding. An extensive discussion of waiver of prompt payments of premiums is to be found in Ballard v. Beneficial Life Ins. Co., 82 Utah 1, 21 P.2d 847; where the court held, upon facts somewhat similar to those of the present
Judgment reversed. Costs to appellant.
HENRIOD, J., and WM. STANLEY DUNFORD, District Judge, concur.
CROCKETT, Justice (dissenting).
This is no disagreement about the fact, as stated in the main oрinion, that the premium for the policy for the month of September was due on August 31st; that the 31 day grace period was up at noon October 1st, at which instant the policy then lapsed, nor that “by paying the premium on the afternoon of October 1st, she (plaintiff) reinstated the policy. * * *” However, under those circumstances, it seems to me that it logically follows that the plaintiff was then insured for one month from the time of reinstatement, which would be to November 1st, and was therefore covered and entitled to be compensated for the injury which occurred on the 31st of October.
The certificate provided for monthly term insurance renewable each month at the insurer‘s option, with premiums payable in advance or within a 31 day grace period during which time the insurance was to remain in effect. The majority opinion recites that there was default at noon on the 1st day of October, that the policy then lapsed, and that “by paying the premium on the afternoon of October 1, she reinstated the policy in accordance with the provisions of the contract * * *.” It is of vital importance to note that the policy expressly excluded liability for injury or sickness occurring between any lapse and latеr reinstatement, providing that the acceptance of a premium would reinstate the certificate, “but only to cover accidental injury thereafter sustained and such sickness as may begin more than 10 days after the
In construing a reinstatеment provision such as the standard one in this certificate, there are two general rules of construction to be given consideration: (1) An insurance contract which is prepared by the insurer should be construed strictly against the insurer and in favor of the insured;1 and (2) A construction which gives the insured insurance for a less period of time than that covered by the premium which he has paid should be avoided.2 In light of these general rules of construction and in the absence of controlling provisions in the policy, it seems reasonable and just that when there is a reinstatement of a term insurance contract, as in the instant case, coverage should date from the time of reinstatement giving the insured full coverage for the premium paid.3
As might be expected, the courts are quite generally in accord with the rule that reinstatement of an accident and health policy creates a new coverage period dating from the time of reinstatement, thus applying the premium so as to require the insurer to bear a risk commensurate with the amount paid and making up for periods between lapses and reinstatement for which liability is expressly excluded. A general statement to this effect is made in 167 A.L.R. 333, 340:
“In connection with heаlth and accident policies the prevailing rule seems to be that reinstatement has a prospec-
tive effect dating from the time of reinstatement. The theory underlying this rule is predicated, inter alia, on the view that reinstatement is, in effect, a renewal for another term, creating a new contract prospective in nature, and as reinstated or renewed, the policy covers losses thereafter sustained. Equally persuasive to the courts is the knowledge that a retroactive dating would unjustly deprive the insured of insurance protection for which he has paid, and would have the effect of compelling the insured to pay for insurance throughout a period for which the insurer is admittedly not liable.
“Accordingly, the acceptance of overdue premiums after a default for nonрayment, has been held to entitle the insured to future coverage, thus precluding a retroactive application of the premium.”
A case analogous to ours and persuasive as to the principle involved is that of Fallis v. Massachusetts Bonding and Insurance Co.,4 in which the court held that reinstatement of a monthly term policy provided insurance for the insured from the date of reinstatement to one month thereafter so as to insure plаintiff at the time of his injury, notwithstanding a provision in the policy that in no event would a reinstatement insure the plaintiff beyond the first day of the next succeeding month. The court reasoned as follows at page 218 of 243 S.W.:
“This contract clearly is not a continuing contract of insurance, but is a contract for insurance by the month, as the premiums are paid, and on failure to pay the monthly premium as provided the pоlicy lapsed, and the holder was then without insurance until the policy should be reinstated by another payment of premium. The policy provided that the payment of past-due premiums should not reinstate the policy beyond the 1st day of the next succeeding month. It also provided that after lapse a payment of premium should reinstate it from date of payment only. To give these provisions a literal construction and enforce them strictly against the insured would mean that, if the monthly payment was not paid on the 1st of the month or within 10 days of grace allowed, the policy would lapse and remain without force until another payment, and, if that payment was not made until the last day of the month, the insured would then pay the full month‘s premium for insurance for one day. This construction is so unreasonable that it condemns itself. * * * We think a proper construction of this policy to be that, as long as the premium for a subsequent month was paid within the preceding month or on the 1st day of the next month or within 10 days grace allowed, the policy was kept in force, but, when the days
of grace expired without a payment being made, the policy lapsed, and a subsequent payment cannot be held to cover a period of time during the lapse when the policy was not in force, for that would require the insured to pay something for nothing, and would therefore be without consideration. * * * The other provision of the policy that a payment after lapse should reinstate the policy from the date of payment only necessarily required that such payment shall apply to the future, and not the past, and hence the reinstatement would fix a new date from which the months would be counted, and would supersede the provision that each month should mean a calendar month. This construction of the policy is reasonable and fair to both parties, and, we think, is fully sustained by the authorities in this state.” (Italics added.)
In Kesler v. Commercial Casualty Insurance Co., 39 Ga.App. 197, 146 S.E. 506, it was contended that the policy had lapsed for nonpayment of a premium duе September 1st, the court held that the payment and acceptance of a premium on September 4th reinstated the policy under the standard reinstatement clause and set a new coverage period so that the insured was covered at the time of the accident. Numerous cases from other jurisdictions affirm the reasoning and result reached in the above cases.5
Under the facts of the instant case, reinstatement took place on the afternoon of October 1st, when the payment was made and accepted. Nevertheless the majority opinion holds in effect, that such payment insured the plaintiff only until noon on the 31st, which is only for 30 days and not for “one month” the normal coverage period, (October having 31 days) and the period which is referred to in the policy. From this holding it would necessarily follow that even if the premium had been paid and accepted on the 10th, 20th or 30th of October the insured would have been entitled to coverage only until noon of the 31st, whatever fraction of the month remained after the payment. Such a result finds no support in reason, justice or the authorities. Their mandate would be that when the certificate was reinstated on Oc-
I think the judgment should be affirmed.
WADE, J., concurs in the dissenting opinion of CROCKETT, J.
WOLFE, C. J., being disqualified did not participate in the hearing of this cause.