145 Ky. 167 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.'
In 1870, tlie appellant company issued to W. P. Mansfield, then about 53' years of age, a policy of insurance, obligating itself in consideration of the payment by him of an annual premium of $271.55 to be paid on or before the 28th day of May in every year during the continuance of the policy, to pay to the children of Mansfield within sixty days after notice of his death the sum of five thousand dollars. It was farther stipulated in the policy that — •
“The said Society do hereby further promise and agree that if, after premiums upon this policy for not less than three complete years of assurance have been dnly received by said Society, this policy should cease in consequence of default in payment of a subsequent premium, said Society will, on due surrender of this policy, and of the profits thereon, issue, in lieu thereof, provided such surrender be made within three months from the date of said default, a new paid-up policy for an equitable amount.”
The answer of the company denied that a demand was ever made for a paid-up policy, or that the amount of the_ paid-up policy offered was inequitable, or that the society led the insured to believe that he could not get a paid-up policy unless all of his children were over twenty-one years of age, and pleaded and relied upon the lapsé of time as a bar to the action.
The case presented by the beneficiaries of the insured is a very meritorious one. The insured for twenty-six years paid annually the premium stipulated in the policy, amounting in the aggregate to about seven thousand dollars; but the company resists the payment of any sum upon the ground that the insured did not within the time allowed for that purpose demand, as he might have done, that it issue to him a paid-up policy for an equitable amount. As the policy expressly stipulates that if the insured after the payment of three annual premiums defaults in the payment of a premium, the company will
The insured paid the premium due on the 28th day of May, 1895. Another premium was due on the 28th of May, 1896. On May 22, 1896, a few days before the premium was due, the insured wrote to the general agents of the company the following letter:
“I have tried several times to make a satisfactory settlement with you all and have made a decided failure every time. Now, I have fully decided that I am not going to pay you another cent. I have paid you $6,000 cash, and if you can’t take my life for that, all will have to go. I have been borrowing money for some time to carry this policy, an.d I am. not' going to pay , another cent. Mr. Rhode told me when I took out my policy that when I paid $5,000 cash, my policy would be self-sustaining, and I have two witnesses who will make affidavit to that effect. Now, this has to be settled sometime, and you will please let me know what is the best you will do — what you will give for a paid-up policy, etc. I would like to hear at your 'earliest convenience.”
,!n reply, to this letter, the general agents of the company ob June 1, 1896, wrote the following:
“We are advised by the Society that on return with*171 proper release on policy 53870 on your life on May 28, 1896, or within six months thereafter, if premiums be paid to said date, and the premium due on said date not paid, they will pay in cash the sum of $2,022.30 if no minor children, or give a paid-up policy for the fixed amount of $3,150; . but, unless otherwise expressly agreed, this offer will not be binding after the termination of the said six months. To secure the cash value, an affidavit would be required, giving the names and dates of birth of all your children, and parties in interest would be required to join in the release. I trust, however, that you will not accept either value, but will continue the policy to the end of the contract.”
At this point it may be said that previous to the letter written by Mansfield on May 22, 1896, several letters had been exchanged between him and the company in reference to this policy; Mansfield contending that the company agreed through its agent at the time he took the policy that when he paid premiums amounting to $5,000, the company would issue to him a paid-up policy for this amount, and it was this understanding of his rights that induced him in the letter of May 22, 1896, to refer to the fact that he had been told when he took -out his policy that when he paid $5,000 in cash his policy would be self-sustaining. It does not appear that there was any correspondence or communication between Mfansfield and the company after the letters of May 22, 1896, and June 1st, 1896; so that, the question is, was the letter of May 22, 1896, a demand for a paid-up policy? When this letter was written, the insured was entitléd to a paid-up policy, but there was a difference between the insured and the company as to what the amount of the paid-up policy fhould be — he insisting that he was'entitled to a paid-up policy for $5,000, while the company only recognized his right to a paid-up policy for $3,150. And it is reasonable to infer from the correspondence that took place previous to May 22, 1896, and from the fact that in the letter of June 1st, the company notified him that it would only issue a paid-up policy for $3,150, that he was so much dissatisfied with the offer made that he declined to accept it. But it does not follow from the fact that he declined to accept the paid-up policy for $3,-150 that he did not demand a paid-up policy. It is not at all necessary to entitle the beneficiaries to the relief sought in this action that it should appear that the in
Wherefore, the judgment is affirmed.