92 F. 769 | 6th Cir. | 1899
(after stating Hie facts as above). The action of the circuit court in dismissing Hie bill was right. The policy could not be reformed except on the ground either of fraud or a common mistake of the parties. Then» is not the slightest evidence of fraud on the part of the insurance company. The reason why the date of the policy was made April 27th is palpable from an examination of the medical examiner’s report. That was taken to be the date of the application, as, indeed, it was. The fact that the part of the application signed by the applicant was dirk’d upon (he 2i)th of April is not material, because all the circumstances show that the application was in fact made when McConnell visited the local agent’s office, and submitted himself to a medical examination. Huch an examination involves expense to the company, and is, of course, never had before an application for insurance is made. Xow, it is quite true that the applicant, upon examining his policy, and finding it dated the 27th of April, when he did not receive it until the !)tli of May, might have objected to the date, and might have requested that the dates he changed. In such a case the company could either have declined the insurance, or acquiesced in the suggesi.ion. But until the policy was delivered, and the money paid, the contract of insurance was not entered into by the parties. We can only gather the intention of the parties from the face of the contract itself and the surrounding circumstances. The slightest examination of the policy by the insured would have shown him that the quarterly payments fell due on quarters calculated from the 27th of April. If he did not
It is said that the failure on the part of the insured to pay his premium on the 27th of July cannot work a forfeiture, because, under the law of Hew York, by which this policy, in accordance with its terms, is to be construed, no policy of insurance can be declared forfeited or lapsed by reason of nonpayment, when due, of any premium unless a written or printed notice, stating the amount of such premium due on such policy, the place where it should be paid, and the person to, whom the same is payable, shall be duly addressed and mailed to the person whose life is insured; and no such notice, it is said, was sent in this case. The Hew York statute provides that the affidavit of an Officer, or any one authorized to mail such notice, that the same has been placed in the mail, shall be presumptive evidence that such notice has been duly given. The written and oral evidence that the notice in this case, properly addressed to McConnell, was duly sent, more than 35 days before the date upon which the premium was required to be paid upon the policy, from Hew York, was complete. It also appears that what was called a “courtesy notice” of the same character was sent by the general agents from the Cincinnati office some three weeks before the 27th of July. It is said that the sending of the Hew York notice is not satisfactorily shown, because the stenographer of the insured testified that she never saw a notice from Hew York City, but only one from Cincinnati, and because a thorough search among the papers of the deceased does not show the presence among them of the Hew York notice. This is immaterial, except as a circumstance having some tendency to show that it was never mailed; and in this case the evidence of its having been mailed is quite satisfactory. The statute only requires that the notice shall be mailed to
Again, it is contended that the second installment of the premium was paid to the agent of the defendant on July 28th, and that the defendant ratified the same. It appears that on the day after the date when the premium fell due, a Mend, of McConnell, learning of Ms accident, went to the bank, which was the collecting agent for the insurance company, and tendered the amount due upon the installment, a signed receipt for which the bank held. The cashier of the bank then gave the receipt, dating it back one day, to the 27th of July, and received the money. There was a considerable delay in the forwarding of the money by the agent to the company at Yew York, so that it was not received in Yew York until the 19th of August, and its payment ivas not explained uni 11 ’the 27th of September, 1893, by he president of the bank which issued the receipt and took the money. The proofs of death were not received in Yew York until the 29th of September. On the 24th of October, 1893, the general secretary of the company took the money to Knoxville from Yew York, and paid it back to the national bank, whose cashier, together with the secretary of the defendant company, went to the friend of McConnell who liad paid the money, and returned it to him. He had agreed to bold the receipt, and return it to the bank, should the delivery of the receipt be found not to be proper; but when the money was paid him it appeared that he had turned the receipt over to the administrator of the insured. We find nothing in (Ms circumstance to justify the contention that the company is now estopped to rely on the forfeiture by a failure to repay immediately the money which was paid under the circumstances above detailed. To say the least of it, the anledaiing of the receipt was a very peculiar proceeding, and while the fact that the receipt was antedated was subsequently brought to the attention of the company, delay incident to a proper investigation would certainly not work an. estoppel in favor of the beneficiary, who at that time had not herself paid the money.
Finally, it is contended that this policy is to be construed as a policy for a year, upon which a quarter of the premium lias been paid, and three-quarters remains due as a. credit to the company. The case cannot be distinguished in this regard from Insurance Co. v. Sheridan, S H. L. Cas. 745, where the policy was in all substantial respects similar to the one under consideration. It is an annual policy, but it is an annual policy on which the premium is payable by quarterly installments, leaving the insured at liberty to drop it at any quarter, and imposing no liability on the part of the company unless the quarterly payment is made at the end of the quarter. If, however, the insured die at the end of the first quarter of the current year, the insurance company receives only one-quarter of the annual premium, instead of the whole. It has insured the deceased for a year, subject to Ms voluntary default. He has died, and the policy is earned. He should pay the whole year’s premium therefor, but has only paid one quarter’s premium. To meet this injustice, the proviso is introduced
