117 Ky. 25 | Ky. Ct. App. | 1903
Opinion of the court by
Reversing.
On the 22d of April, 1896, in consideration of $217.00, and the payment of a like sum annually thereafter on the 22d of April of each year, the appellant issued a policy on the life of George T. Price for $10,000, payable at bis death to Sue E. Price, wife of the insured. Before the annual premium became due April 22, 1900, the insured asked the company to grant an extension of four months in which to pay the premium. The manager of the appellant’s Louisville office notified Price that he had no authority to grant the extension without the approval of the Home office, and inclosed a note for his signature,
Among other provisions, the policy contained the following:
“Provided, any moneys required to be paid_ under this policy, during the continuance of the contract, must be actually paid when due to the said association; and no dues or premiums on this policy shall be considered paid, unless a receipt shall be given therefor, signed by the president and treasurer, and countersigned by the agent or person to whom payment is made, as evidence of such payment to him; otherwise this policy shall be ipso facto null and void, and all moneys paid hereon shall be forfeited to the said association.”
“With the written approval of the president or vice president, the beneficiary herein named may be changed upon the written request of the member, by the surrender of this policy.” '
“In case of lapse or forfeiture of this policy, it may be revived upon the approval of the president or vice president án'd 'medical director subject to ’the .riiles of the association.” ' «.
*28 “No agent of the association has any power or authority to make, alter or discharge contracts, waive forfeitures, or grant credit; and no alteration of the- terms of this contract shall be valid, and no forfeiture hereunder shall be waived, unless such alteration or waiver be in writing and signed by the president of the association.”
This action was instituted by the beneficiary, Sue E. Price, to recover the amount of the policy, to-wit, $10,000. Questions raised by counsel will be made to appear in this opinion, hence it is unnecessary to summarize them.
The failure to pay the note executed for the balance of the premium, which matured November 20, 1900, is admitted. Counsel for the appellee urge that the appellant waived the forfeiture, and when once waived it could not be exercised during the ensuing year; that this right of forfeiture existed on the 22d day of April, 1900, and the acceptance of the four-months note for the annual premium due tha't day was an. election to waive the forfeiture for the entire year. By the terms of the policy it becomes ipso facto mill and void, unless the moneys required to be paid by it are actually paid when due. At the request of the insured the company extended the time for the payment of the premium for four months which matured April 22, 1900. This was done as an accommodation to the insured. Except for that act, he would either have been forced to pay the premium, or have allowed his policy to lapse. The company did not agree to waive its right of forfeiture, or relieve the insured from his obligation to pay the premium. It simply agreed to postpone the payment of the premium for four months, and that it would not exercise its right of forfeiture for that period. It did not agree that it would not exercise its right of forfeiture upon the failure of the insured to pay the note at its maturity.
It is urged that the forfeiture was waived by an unconditional demand for the payment of the note of $174.74 after maturity. The question presented is not one of preventing the lapse of a life policy, but of the revival of one which has already been forfeited. Both the appellant and Price understood that the failure to pay the note operated as a forfeiture of the policy. Under the doctrine which this court has repeatedly announced, if there had been an unconditional demand for the payment of the note after its maturity, unaccompanied by an explanation showing a different intent, it would be evidence in itself of an intention to waive the forfeiture. Moreland v. Union Central' Life Insurance Co., supra. In that casé the court said: “We can see how, without a waiver of the forfeiture being
It is claimed for the appellee that the' note for the premium containing the forfeiture clause for failure to pay is a contract as to insurance, and void under the statutes, unless attached to the policy. In support of that contention Provident Savings Life Assurance Society v. Puryear’s Adm’r, 109 Ky., 381, 22 R., 980, 59 S. W., 15, is cited. The statute referred to among other things provides that no insurance company “shall make any contract of insurance or agreement as to such contract other than is plainly expressed in the policy issued thereon.” Ky. Stat., 1899, section 656. This clause evidently is not applicable to the facts of this case. It relates to the time the policy was issued. If it had the effect, as contended by counsel, that the note was void, and likewise its provisions, because it was not attached to the policy, the appellee could not get any benefit from the execution of the note. If it was void because it was not attached to the policy, its terms would not be binding on either party. The logic of counsel’s position would be that, as there was no valid agreement between the parties as to the extension of time for the payment of the premium, the policy was forfeited on the 20th
The certificate of health was signed December 1, 1900, mailed to the home office in Philadelphia, where it was received and retained for about six days before it was returned not approved. It was a matter for the company alone to determine whether it would approve the certificate of health and waive the forfeiture, and the insured could not complain of the delay of the company in rejecting the application for the restoration of the policy. There is no conflict in the evidence. The material part of it was in letters and writings. Therefore we are of the opinion that the court should have giver, a peremptory instruction to find for the defendant.
The judgment is reversed for proceedings consistent with' this opinion.
Petition for rehearing by appellee overruled.