61 P. 1112 | Cal. | 1900
The defendant appeals from the judgment and from the order denying a new trial.
In support of its appeal it is contended on behalf of the appellant: 1. That some of the material findings of fact are unsupported by the evidence; 2. That the court erred in deducing erroneous conclusions from the facts found. The action is based upon a policy of life insurance. The policy recites that the said company in consideration of the application and the payment of a permium of twenty-four dollars and ninety-six cents "on or before the thirtieth day of July, October, January, and April in every year, for the period of twenty years from the date hereof, does hereby receive Theodule Robert of Los Angeles, county of Los Angeles, state of California, as a member of said association, and issues this policy of insurance and hereby promises to pay the sum of three thousand dollars to his wife, Ida Robert; . . . . provided, any moneys required to be paid under this policy during the continuance of this 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 beipso facto null and void, and all moneys paid hereon, except as hereinafter provided, shall be forfeited to said association."
The said policy is signed at the company's office at Philadelphia, the thirtieth day of July, 1895, and provides: "The same shall not be binding until delivered during the lifetime and good health of the applicant and until the first payment due hereon has been made." The said policy together with a receipt for the first payment, signed by the president and treasurer of said defendant company at Philadelphia, were forwarded to the local agent at Los Angeles. This receipt, *253 produced in evidence by the plaintiff, is as follows: "Received from Theodule Robert of Los Angeles, Calif., owner of policy No. 060,809, $24.96, in payment of quarterly dues, payable and due on the 30th day of July, 1895, which pays such dues up to the 30th day of October, 1895." This receipt was countersigned at Los Angeles on the third day of September, 1895, by Frank Lerch, agent.
The court finds that said policy of insurance was issued on the third day of September, 1895, and the premium paid on said policy was paid for the period of three months from the third day of September, 1895. This finding is not supported by the evidence, but is in direct conflict with it. The policy was executed, as appears on its face, July 30, 1895. Necessarily some little time must elapse between its execution in Philadelphia and delivery in Los Angeles, which both parties to the contract of course well understood; and without the provision contained in the policy that it would not be binding until delivered, the same result would have followed. "A contract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent." (Civ. Code, sec.
Mrs. Robert, after the death of her husband, supposed that the second premium, due October 30th, had been paid. She employed Blake Doane as attorneys to correspond with the company in reference to a blank form upon which to make formal proof of death. Their letter was dated April 10, 1896, to which the president of the defendant company replied under date of April 22, 1896, that: "In the regular course of business notice was sent to the insured September 30, 1895, requesting him to make payment of the second quarterly premium to the Merchants' National Bank. The receipt for the same was sent to the Merchants' National Bank for collection, and was returned by said bank, no payment having been made. We understand an attempt was subsequently made by Mr. Lerch to induce Mr. Robert to make payment, execute a health certificate as required by the terms of the policy, etc. but he declined to do it. The policy does not only require and make it a condition precedent to recovery to show that the insured is dead, but also to show justice of claim."
Subsequently, it appears, Mrs. Robert employed other attorneys, to wit, Hanna Davis, and on September 21, 1897, nearly a year and a half after the first correspondence by Blake Doane, these new attorneys wrote to the company. In their letter they call attention to the letter written by Blake Doane, and the answer thereto by the president of the defendant association, and say: "In this last letter you intimated that Mrs. Robert, the beneficiary under said policy, was not entitled to payment of the same by reason of the fact that Mr. Robert declined to make payment of the quarterly premium to the Merchants' National Bank. . . . . This matter has recently been placed in our hands, having been taken out of the hands of Messrs. Blake Doane, and we write to renew the request that you send us blank proofs, so that we make a proof as to the death of Mr. Robert, and we will say further that as a matter of fact Mr. Robert did pay the second quarterly premium which was due to the company, *256 although not to the Merchants' National Bank, but was paid to Mr. St. John, the soliciting agent for your company, who was also the agent and had authority to make collections for Mr. Lerch, your general agent here." The president of the company replied to this last letter under date of September 27, 1897, repeating substantially what he had written in the first letter, and that in consequence of the failure of Robert to pay the premium when due, the policy by its terms became null and void.
Up to this time, therefore, it was well understood that the first payment did not extend beyond the 30th of October, 1895, but shortly thereafter the plaintiff became the assignee of Mrs. Robert, and this suit was commenced. On the trial it was conceded that the second payment was not made, but it was contended that the payment of the first premium ran three months from the third day of September, instead of from July 30, 1895, as plainly declared both in the policy and the receipt for the first payment delivered with it.
McConnell v. Providence Sav. etc. Soc., 92 Fed. Rep. 769, decided by the circuit court of appeals of the sixth circuit, is very much like the case at bar. The policy there contained similar terms and conditions with the one here. It was dated April 27, 1893, but was not delivered, nor did it become effective, until May 9, 1893, the first quarterly premium being then paid. The next quarterly premium was payable, according to the policy, July 27, 1893. The insured did not pay the second premium, but died July 28th, one day thereafter. This shows a very extreme case, but the court there, speaking through Judge Taft, the other members of the court concurring, held: "There was a failure to pay a quarterly installment on the day fixed. As a consequence the policy became forfeited, and all liability thereon ceased."
Bryan v. National Life Assn. (R.I. 1899),
The court might as well undertake to release the insured from the payment of premiums altogether as to relieve him from forfeiture of his policy in default of punctual payment. The company is as much entitled to the benefit of one stipulation as the other, because both are necessary to enable it to keep its own obligations. As said in New York Life Ins. Co. v. Statham,
The policy in this case became void prior to the death of Robert for nonpayment of the premium as stipulated. The finding of the court that Theodule Robert and Ida Robert duly performed all the conditions of said policy on their part to be performed and paid all amounts required to be paid thereunder to the defendant is contrary to the evidence; also the finding that the defendant did not deny its liability on said policy prior to the 27th of September, 1897. The evidence shows that it disputed its liability from the first, on the ground that the second payment had not been made as stipulated in the policy.
The judgment and order denying a new trial are reversed.
McFarland, J., Temple, J., Harrison, J., Garoutte, J., and Beatty, C.J., concurred.