91 Ky. 356 | Ky. Ct. App. | 1891
delivered the opinion op the court.
The provision of the policy sued on is as follows: “And it is understood and agreed that in case the
This policy was issued to the appellant in. January, 1867, upon the life of her husband for the sum of two thousand dollars, and nearly fifteen years after the appellant had ceased to pay the premiums, the husband in the meantime having died, she brought suit on the policy to recover the sum of one thousand one hundred and fifty dollars, which is the sum due, as she claims, on the policy by reason of having paid more than two whole years’ premiums. It is admitted that the appellant, before the premiums were all paid, ceased to pay any more of them, and the appellee contends that in consequence thereof its liability on the policy ceased in toto, and the appellant has no right of action thereon; that the only right the appellant had was to surrender the policy within a year and obtain a paid-up policy for the proportionate part, and she having failed to do so, she is barred of that right. The appellant contends
In the Montgomery case the provision in the particular under discussion was as follows: “If said premiums shall not be paid at the office of the company in the city of Hartford, Connecticut, or to an agent of the company oil or before the date above mentioned, then, in every such case, the said company shall not be liable for the payment of the whole sum assured, but only for a part thereof, proportionate with the annual payments, &c., and this policy shall cease and determine.”
The policy also provided that in case of non-payment, the insured might, within a year, surrender the policy, and obtain a paid-up policy for the proportionate part, &c. This court held in said case that in case of the non-payment of the premiums as in the policy provided, the company was liable to an action on the policy for the cash in proportion to the annual payments made; that- the policy ceased and determined only as to the balance, or that if the assured wished he could waive the cash payment, and by surrendering the policy obtain a paid-up policy for the proportionate part. The language of this policy •clearly admits the company’s liability on it for the proportionate part in cash, and this liability exists according to ordinary written contract liabilities, and the liability continues thereon until barred by the time that ordinarily bars such contracts.
Also, in the Montgomery case it is decided that the provision of forfeiture will be considered as a part of the contract, and will be enforced “when the nature of the transaction or the stipulation of the parties shows that it was so intended by them.”
So the question is, does the stipulation in the policy under consideration fall within the first or second category named?
It will be seen that the policy expressly provides that in case the appellant shall not pay the premiums as provided, the appellee “shall not be liable to the payment of the sum insured, or any part thereof.” Here, unlike the provisions in the other cases referred to, is an express stipulation that the appellee shall not be liable to pay any part of the sum insured if the appellant fails to perform her part of the contract. Such is the agreement. Why should it be construed as an essential part of the contract requiring the appellant to. pay the annual premiums as a precedent condition? Because, first, the appellant had the right to abandon the contract, and the appellee had no remedy against her for so doing, consequently they agreed that the appellee should be released if the appellant abandoned her contract; second, the nature of the appellee’s business required promptness in the payment of the annual premiums. These con
The judgment is affirmed.