10996 | S.C. | Sep 1, 1922
Lead Opinion
September 1, 1922. The opinion of the Court was delivered by The foregoing statement of facts practically embodies the entire record. There is no doubt that the failure of the insured to pay the premium which became due on the 14th of October, 1920, caused the policy to lapse, but it was provided in the policy that it might be reinstated at any time upon payment of the past-due premium and the production of evidence of insurability satisfactory to the company.
On the 29th of November, 1920, the insured wrote a letter to the defendant, inclosing a money order in the sum of $15.79, to pay the premium of insurance necessary for a reinstatement of the policy. This letter with its inclosure was duly received by the company, which introduced testimony to prove that it wrote a reply, dated the 1st of December, 1920, inclosing a reinstatement blank, and that said letter was duly placed in the post office, properly addressed to the insured. The plaintiff offered evidence to show that the letter was not received by the insured. This is the main issue in the case.
The fact that the defendant may have deposited the letter, dated the 1st of December, 1920, in the postoffice, while raising a presumption that it was received by the insured in due course of mail, nevertheless there are facts and circumstances tending to rebut such presumption, sufficient to require the submission of such issue to the jury. As we have reproduced these facts and circumstances, it is not necessary to discuss them in detail. If the defendant company retained the premium tendered by the insured, *389 and failed to take the steps which defendant claims were taken to advise the insured of the necessity of making formal application for reinstatement, under the circumstances indicated, we think there was some evidence tending to establish waiver.
The judgment is affirmed.
MR. JUSTICE FRASER concurs.
Concurrence Opinion
I concur. Granting that the testimony of defendant's witnesses, if believed, would as a matter of law have negatived entirely any inference of waiver, I think it clear that the determination of that issue involved passing upon the credibility of the witnesses, a matter for the jury, and not for the Court. Uncontradicted testimony does not amount to the establishment of facts to which it is directed, if such facts are in dispute under the general issue joined.
Dissenting Opinion
On the 14th of April, 1919, the defendant issued a policy for $1,000 upon the life of Elijah Hightower, payable in the event of his death to his wife, Marrie Hightower. The premium was $15.79, payable at the time of issuing the policy and on the 14th days of October and April thereafter. The cash premium was paid; also those of October 14, 1919, and April 14, 1920. The premium due October 14, 1920, was not paid at maturity. Under the terms of the policy a grace period of 31 days was allowed, which permitted that premium to be paid at any time on or before November 14th. The policy further provided that, if the policy should lapse in consequence of the nonpayment of any premium when due, it might be reinstated at any time upon production of satisfactory evidence of insurability and the payment of all overdue premiums, with interest.
On the 29th of November, two weeks after the expiration of the grace period, but within the time for reinstatement, the wife of the insured, writing in his name, mailed to the defendant's agent at Columbia a post office *390 money order for $15.79, expressing his inability to pay earlier, and begging excuse for "my long time not sending payment." It is conceded that this remittance was received by the company. The testimony on behalf of the defendant tended to show that the insured was duly notified on September 15th of the maturity of the premium on October 14th; that on December 1st the company acknowledged receipt of the letter of November 29th, inclosing the money order, and called attention to the fact that the policy had lapsed, and to the necessity of complying with the provisions for reinstatement, inclosing blank form for that purpose.
On December 24th the wife again wrote to the company, in the name of the insured, inquiring about the remittance of November 29th, and stating that no receipt had been received therefor. The testimony on behalf of the defendant tended to show that on December 29th the company acknowledged receipt of this letter of December 24th, advising that they had acknowledged receipt of the letter of November 29th on December 1st, and sent to insured the reinstatement form.
The insured died on January 14, 1921, of which the company was not notified until January 28th. On January 19th, five days after the death of insured, the beneficiary sent to the company a duplicate of the money order dated November 29, 1920. Both money orders were returned to the plaintiff's attorney on February 25, 1921, after suit had been commenced on February 10th.
The evidence is plenary that the company mailed to the insured, at his address, Bamberg, S.C. the notice of September 15, 1920, their reply to the letter of November 29th inclosing the money order for $15.79, calling his attention to the provisions for reinstatement and inclosing blank form, and their reply to the letter of December 24th, in which the insured made inquiry as to the remittance, advising him of their acknowledgment on December 1st of the *391 letter of November 29th and transmitting the reinstatement form. The policy was canceled on November 14th, the day the grace period expired; but the actual record of cancellation was not made until November 27th, the day the manager returned to the home office the official premium receipt unpaid.
The plaintiff, the beneficiary of the policy, testified that she did not receive the notification letter of September 15th, the company's letter of December 1st, nor that of December 29th. There was no evidence of the fact that the insured had not received them; there was nothing to rebut the presumption of fact that a letter duly mailed reached its destination. There is but a bare inference that the plaintiff would not have written the letter of December 24th if her husband had not directed her to do so, and that he would not have so directed if he had received the company's letter of December 1st. There was no evidence that she got his mail from the post office, or attended to his business affairs, or that she was directed by him to write any letter to the company. All that appears is that she, the beneficiary, received no letters from the company, and was ignorant of the company's attitude in the matter.
But assuming that there was sufficient evidence in the case to require the submission to the jury of the issue whether or not the insured received the letters referred to, upon the issue of waiver by the company of the forfeiture of the policy by nonpayment of the premium due on October 14th, and by the failure of the insured to comply with the provisions for reinstatement, it is absolutely immaterial whether he received them or not, so long as the defendant is shown to have done all that it could do, declarative of its purpose to insist upon the forfeiture. In the case ofHerndon v. Railway Co., (S.C.,)
The question of waiver being one of intention, it clearly is immaterial whether or not the insured actually received these letters from the company. Otherwise the intention to waive, which by these letters is shown not to have existed, must be declared by the Court to have existed by reason of the failure of the insured to receive the letters, a failure for which the company was not responsible, but which was due to the fault of the postal department, or the carelessness of the addressee or some one acting for him. It should be remembered that, where the policy admittedly has lapsed for nonpayment of the premium and by failure to comply with the provisions for reinstatement, and the beneficiary relies upon a waiver by the company of the forfeiture by reason thereof, the burden is upon the beneficiary to establish the company's voluntary relinquishment of a known right, which may be shown by conduct incompatible with a purpose to insist upon the forfeiture.
Outside of the retention of the premium, to which I shall presently refer, there is not a single circumstance in the case remotely suggestive of such waiver, except the failure of the insured to receive the company's communications, a failure for which it can in no way be held responsible. There does not seem to be any doubt as to the proposition that, if the company by a course of dealing, as in McManusv. Insurance Co.,
Referring now to the contention that the retention of the money order by the agent of the company was some evidence of waiver: It may be assumed, and I think justly, that if an authorized agent should receive an overdue premium, remit it to the company, and the company should retain it an unreasonable time without objection or notification to the insured that fact would be some evidence of a waiver. But in this case the retention must be taken with its attendant circumstances. It would not be just to single out a fact, and argue that it, regardless of the attendant circumstances, is evidence of waiver. Here the money order was received and kept in its original condition; it was not cashed nor remitted to the company; the company was notified of the cancellation, and the original official receipt returned to it; it was held by the agent and the circumstances to the insured. In addition to this the policy provides:
"No agent is authorized to waive forfeitures, or to make, modify, or discharge contracts, or to extend the time for paying a premium."
It is true that it has been held, and properly so, that this provision may be waived, as well as any other provision of the contract in this case; however, there is not the slightest evidence of such waiver by the company. See Rabb v.Insurance Co.,
I think, therefore, that the motion for a directed verdict in favor of the defendant should have been granted.