98 N.J.L. 187 | N.J. | 1922
This action was brought by the plaintiff as executor of Henry Rau, deceased, to recover $1,000 on a policy of insurance by the terms of which the defendant was to pay that sum to the wife of the insured, as beneficiary, after twenty years premiums should have been paid, or at the death of the insured. The insured died before the twenty years -had expired, and after the beneficiary had been changed to “the estate of the insured.” The plaintiff recovered a judgment for the full amount of the policy from which the defendant has appealed. The policy was dated the 4th day of February, 1916, and the premiums required were paid to February 4th, 1919, and the next premium, according to the policy, was payable August 4th, 1919. No other premiums were ever paid-on this policy, nor any attempted to be paid, until February, 1920, when the plaintiff claims that a payment was made, the effect of which was, as the plaintiff alleges, to extend the policy for a. period of five years and one month, and if insured died during that period his representative would be entitled to recover $1,000. The policy provided that if there was a default in the payment of a premium when due, the policy should immediately lapse; provided, if the lapse occurred after three full years premiums should have been, paid, and upon written request of the insured filed with the company at its home office, and the presentation of the policy for legal surrender or endorsement, within three months from the due date of the premium in default he would be entitled to one of the following options: “(a) a cash surrender value, or the mathematical equivalent thereof; (b) to have the insurance continue for a reduced amount as a pa'id-up policy; (c) to have the insurance continue for its original amount as term insurance from due date of the premium in default.” The policy then provided that if the owner should not within three months of the due date of the premium in default surrender the policy to the company a.t its home office for- a cash surrender, or for endorsement for’ paid-up insurance or term insurance as provided in the options, the insurance should be continued for a
This question was raised by a request of the defendant to instruct the jury to return a verdict in favor of the plaintiff for $139, the paid-up value of the policy, which the trial court refused and to which exception was taken. We think the request of the defendant should have been complied with and that the trial court should have directed the jury that all
Another reason is that, assuming this testimony on behalf of the plaintiff to be true, although it seems a little strange that the alleged agent of the defendant should have so suddenly disappeared that no trace can be found of him, the policy expressly provides that no agent is authorized to make, modify or discharge contracts or to extend the time for paying the premium, and if this agent did exist he had no authority, so far as the record shows, to extend the time for paying a premium, or to discharge the contract which had come into force because of the default in paying the premium in August, 1919.
Nor is there any legal merit in the plaintiff’s claim that the defendant consented because it endorsed on the policy, October 28th, 1919,. a change of beneficiary, for on that date the three months’ grace had not expired and the policy was still in full force, and the endorsement only declared that the “amount due on the death of the insured” should be payable to the new beneficiary, which in event of default of payment of premium would be $139.
For affirmance — Mone.
For reversal and modification — The Chancellor, Chiee Justice. Swayze, Trenchard, Parker, Bergen, Minturn, Kalis oh, Black, Katzenbach, White, Williams, Gardner, Van Buskirk, JJ. 14.