126 A. 553 | Vt. | 1924
The action is contract on a life insurance policy. The defendant had a verdict and judgment below, and the case is here on plaintiff's exceptions.
The first question for review is whether the court erred in overruling plaintiff's motion for judgment non obstanteveredicto. The ground of the motion, which is somewhat prolix, is that after this Court held that the defendant was entitled to correct any error it might have made in computing the term of extended insurance, to wit, on August 17, 1920, the plaintiff tendered to the defendant the amount of a loan it had made to the insured and himself on this policy, with interest thereon, which loan and interest then due, the defendant, in making such *199 computation, deducted from the amount otherwise available to purchase extended insurance, and, thereafter, pleaded such tender by way of replication; that the subsequent pleadings of the defendant admitted the making of the tender, but denied the right to make it at that or any other time; and the motion asserts the right, both at law and in equity, to apply such tender in payment of the loan at the time of, and in connection with, any re-computation necessary to ascertain the term of extended insurance.
In considering the question thus presented, certain provisions of the loan agreement and of the policy, and the status of the insured respecting them, must be borne in mind.
The plaintiff is beneficiary under life insurance policy No. 7,017,722 issued by defendant to one Charles B. Kimball, February 5, 1908. The policy provides that:
"At any time after three full years' premiums have been paid and while this policy is in full force, the Company will advance, on pledge of the Policy and on the sole security thereof, an amount which, with interest thereon to the end of the current policy year and with any unpaid portion of said year's premium, shall, at the option of the owner, be equal to or less than the Cash Surrender Value at the end of such policy year; interest on the loan will be at the rate of five per centum payable annually; and if interest is not paid when due, it shall be added to the principal and bear interest at the same rate. Failure to repay any such advance or to pay interest shall not avoid this Policy unless the total indebtedness hereon to the Company shall equal its Cash Surrender Value, nor until one month after notice of such fact shall have been mailed by the Company to the last known address of the Insured and of the Assignee of record at the Home Office of the Company, if any."
On November 2, 1910, the defendant loaned to the insured and the plaintiff $64.00 under an agreement, the material parts of which are:
"Pursuant to the provisions of Policy No. 7,017,722 issued by the New York Life Insurance Company on the life of Chas. B. Kimball said Company has this day advanced to the undersigned, and the undersigned have this day received *200 from said Company, the sum of Sixty-four and no-100 Dollars ($64.00), and pledged said Policy with said Company as sole security therefor.
"In consideration of the premises, the undersigned hereby jointly and severally agree with said Company as follows:
"1. To pay said Company, on the next anniversary of said policy, interest on said advance at the rate of five per centum per annum from this date to said anniversary, and annually thereafter on each anniversary of said Policy.
"2. To pledge, and do hereby pledge, said Policy as sole security for the repayment of said advance and interest, and herewith deposit said Policy with said Company at its Home Office, reserving, however, the right to reclaim said Policy by repayment of said advance with interest, at any time before due, said repayment to cancel this agreement without further action.
"3. That the sum so advanced shall become due and payable either —
"(a) If any premium on said Policy is not paid on the date when due, in which event the sum so due and payable, with interest, shall, without demand or notice of any kind, every demand and notice being hereby waived, be satisfied in the manner provided in said policy; or
"(b) On the maturity of the policy as a death-claim or as an endowment, or on the surrender of the policy for a cash value. In any such event the amount so due and payable shall be deducted from the sum to be paid or allowed under the Policy.
"4. If interest is not paid when due it shall be added to the principal and bear interest at the same rate. Whenever the principal of said loan with overdue interest added thereto shall equal the Cash Surrender Value of said Policy, then the Policy shall become void and of no effect at the time and upon the conditions provided in said Policy for such contingency."
The policy provides that the payment of a premium shall not maintain the policy in force beyond the date when the next premium is payable, but that the policy may be reinstated within a specified time, upon certain conditions, and that if reinstated *201 "any loan which exists at the date of default, together with interest in accordance with the loan provisions of this Policy to the date of reinstatement to be, at the option of the Insured on application for such reinstatement, either paid in cash or continued as an indebtedness against this Policy."
The premiums were payable semi-annually, on February 5, and August 5. The premium due August 5, 1912, was not paid. Later, the insured attempted to get the policy reinstated, but all negotiations to that end ceased November 5, 1912, because of his failure to meet other payments then due. See
The insured having failed to elect to take under options (a) or (c), the defendant, on or about August 4, 1913, without previous demand or notice, undertook to ascertain the amount, and term, of extended insurance to which he was entitled under option (b). The computation then made showed that he was entitled to have insurance for $1,479 continued to May 6, 1916. That fact was indorsed on the policy, which was returned to the insured and retained by him to the time of his death. After the happening of the latter event, the defendant claimed to have discovered a mistake in its computation due, as appears in the
It is contended that defendant held the policy as a mere pledge to secure the payment of the loan and, therefore, could not lawfully liquidate the loan out of the proceeds of the policy without previous demand and notice; that the waiver provision contained in paragraph 3, subdivision (a) of the loan agreement is void, and that, since the defendant proceeded without demand or notice, the insured had the right during his lifetime, and the plaintiff now has the right, to repay the loan and thereby leave the entire reserve on the policy available to purchase extended insurance, which in this case would be sufficient to carry such insurance beyond the date of insured's death. In support of this contention, plaintiff calls attention to a large number of cases where pledge contract and the rights of the respective parties under them have been considered. With those authorities we have no quarrel. It is enough to say that, they are not applicable to cases like the one at bar. Pledges of this character are recognized as standing in a class by themselves, so far as the method of enforcement is concerned. It is perfectly obvious that because of the character of the thing pledged, the peculiar interest of the pledgor therein, and the nature of the *203
pledge contract, the common law method of enforcement is inadequate and inappropriate. For this reason, stipulations relating to the disposition of the pledge, and the application of the proceeds, which are not obnoxious to the law and do not result in penalizing the pledgor for his default, are generally upheld. Illustrations of this will be found in the following cases. McCall v. International Life Ins. Co., 196 Mo. App. 318, 193 S.W. 860; Eagle v. New York Life Ins. Co.,
Upon the authority of the above cases, the waiver provision in paragraph 3, subdivision (a) of the loan agreement must be sustained, unless it violates the insured's rights under the policy, and we do not think that it does. The loan provision of the policy only enumerates in a general way the conditions upon which loans will be made. Neither that, nor any other provision of the policy, requires demand or notice as a prerequisite to the liquidation of the policy when it terminates, as here, through non-payment of premiums. This silence of the parties on the subject would seem to justify the inference that power to act without such demand or notice was intended to be conferred.McDowell v. Chicago Steel Works et al.,
But, since plaintiff's claim that insured had the right, after the policy lapsed for non-payment of premiums, to pay the loan, and by so doing have the benefit of the entire *204
reserve in extended insurance, cannot be entertained, in view of the contract evidenced by the policy and the loan agreement, the question of demand and notice is immaterial. The policy was not cancelled or forfeited for non-payment of the loan, or interest thereon, but, under the terms thereof, terminated through default of the August 5, 1912, premium, without action on the part of the company. Fraser v. The Home Life Ins. Co.,
Neither the question of the insured's right to borrow money on the policy on the terms thereof, nor the right of the company to forfeit the policy for non-payment of the loan or interest thereon, are involved and, therefore, need not be considered.
The force to be given to the indorsement of extended insurance is again challenged by the plaintiff; and many cases involving the correction of mistakes, and showing what must appear to entitle a person claiming a mistake to relief therefrom, are called to our attention. But we see no occasion to depart from our holding in the
Nor is the situation affected by the notice printed on the outside of the policy to the effect that it was not necessary for the insured or beneficiary to employ the agency of any person, etc., to collect the insurance, etc. That, at most, only emphasized the fact that they might rely on the indorsement, a right they otherwise had.
It is also urged under the petition that the evidence of Mahoney at the last trial showed the indorsement to be a corporate act and, therefore, it was of greater evidentiary force than an ordinary admission or a receipt. This evidence does not change the situation, since the fact that the indorsement was signed by the president and secretary of the company shows the same thing; besides, so far as appears, the weight to be given *207 the indorsement as an admission was not raised in the court below.
This disposes of all questions necessary to be considered in connection with the main case, except those presented by the exceptions to the charge.
The court charged the jury, in substance, that the indorsement of extended insurance on the policy was not to be treated by them as a contract between the insured and the company; that its significance, in the circumstances, was nothing more than an admission; that the fact that it was indorsed on the policy gave it no more force than though it had been on a separate piece of paper; and that it stood in the same class as a receipt for money, which might be explained in proper cases. The transcript, by which we must be controlled, shows the exception to be: "I desire an exception noted to that part of the charge in which the court said, in substance, that the indorsement was not a contract, and had no more force than a receipt." But assuming that this was prefaced by what appears in the plaintiff's brief, namely, "In view of the testimony of Mr. Mahoney," the result is not changed.
The court followed, in substance, the language of the opinion in the
More than a year after the case was tried below, and more than ten months after the exceptions were filed, to wit, on April 25, 1923, the plaintiff filed the petition already referred to, wherein is set forth excerpts of what this Court said in the
The petition must be denied. Litigants will not be permitted to gamble on the outcome of litigation, and, if cast, trifle with the courts in the manner here attempted.
The situation, as appears of record, is this: The opinion in the 93 Vt. was filed January 25, 1919; that in the 94 Vt. was filed in November, 1919; and that in the 96 Vt. was filed February 13, 1922; and all stood unchallenged until after the plaintiff was cast in a jury trial at the March Term, 1922, of the Chittenden county court. When the case was argued in this Court at the February Term, 1921, Mr. Justice Slack was not present, and pursuant to the provisions of G.L. 1581, Superior Judge Fish was designated to, and did, act in his place. Later, for reasons not necessary to notice, the case, by order of this Court, was reargued on two questions not here material. With the full knowledge of both parties, Mr. Justice Slack occupied his usual place on the bench during the reargument, and later *209 wrote and delivered the opinion, which appears in the 96 Vt., and was filed, as we have seen, February 13, 1922.
In this situation, the plaintiff is not entitled, either as a matter of right, or fairness, to have the petition sustained. However, for reasons stated, we have considered, so far as we deem necessary, the questions thereby presented that relate to the force and effect of the indorsement.
The question concerning Mr. Justice Slack's connection with the case is without merit. It is not claimed that he was disqualified by reason of relationship, interest, prejudice, or the like, but merely that he was not present in Court when the case was argued originally, his place then being occupied by Superior Judge Fish. It is a matter of common knowledge among the attorneys who practice before this Court that cases are frequently submitted on briefs, or one party submits his brief and the other argues orally, and that a Justice is sometimes absent from the bench during part or all of the argument of a case. Granting, for the purpose of argument, that, generally parties have the right to be heard orally, if they assent to do otherwise, they will not be heard to complain later; and assent will be implied from silence. Both parties knew that Mr. Justice Slack was assuming to act in the case at the time it was reargued, and by their silence they tacitly assented thereto.
Judgment affirmed. Petition dismissed.