127 Iowa 205 | Iowa | 1905
It is understood that the policy or certificate assumed shall be charged with a lien of a sum equal to the present value'of the face of the policy or certificate assumed, due at the end of the present expectancy of the life assumed as shown by the American Experience Table of Mortality, at “ four and one-half*” per cent interest plus “ four ” per cent of the face of the policy for General Fund purposes, said lien constituting a single premium which is loaned by said National Mutual Life Association to the said assured, against which shall be credited all premiums or assessments hereafter paid by said member, with “ four and one-half ” per cent interest thereon from tire date of payment, the unpaid portion to be payable from the face of the policy or certificate at maturity, the same to be considered as security therefor.
And in the contract between these two companies we find this provision:
It is understood and agreed that the members of the said party of the second part, reinsured hereunder by said party of the first part, shall be reinsured upon what is known as the life expectancy or single premium plan, whereby each of such reinsured members shall he charged with a single premium according to his attained age and four and one-half per cent interest, which single premium represents the present worth of the face of the policy or certificate assumed due at the end of the life expectancy of the life reinsured according to the American Experience Table of Mortality at four and one-half per cent compound interest, plus four per cent of the face of such policy or certificate as a life loading for expenses, which single premium shall be treated as a loan by said party of the first part to such member and*208 may be paid in one sum or in installments or premiums, and snob reinsured member shall have the privilege of paying such installments of premiums or assessments as he has heretofore been paying to said party of the second part, or he may pay the regular installments required by the life expectancy or single premium plan of said party of the first part or he may pay larger sum at his option, receiving credit for the payments made by him to said party of the first part, and in event of maturity of the certificate or policy by death before such single premium shall have been thus paid, then the balance thereof shall be paid by the beneficiary or reserved by the' said party of the first part, from the face of the policy.
Plaintiff did not remit the quarterly premium due July 1, 1902, until the 2d day of that month; and, according to the statement of the defendant company, this premium was not.received by it until July 7th. Upon receipt thereof, and under date of July 7th, the defendant wrote plaintiff to the effect that the premium was due June 30, 1902; that it was not received until July Ith, and that, by the terms of the policy, it became forfeited ipso facto; that his (plaintiff’s) insurance had terminated; and that he was no longer a member of the company. It also stated that the remittance would not be received or accepted in payment of the premium, but would be held subject to plaintiff’s order. Plaintiff was also informed in this letter that reinstatement of a lapsed policy was discretionary with the officers of the company, and could only be obtained upon satisfactory .evidence of continued good health. Pie was also informed that, if he desired reinstatement, he should fill out an inclosed blank form of health certificate, and that, if he was reinstated, his policy would be credited* with- the premium sent, and his policy thus revived. The-letter continued as follows:
If your application for reinstatement is not received within thirty (30) days we will take'it for granted that you desire us to return the remittance to you.
The Northwestern National Life Insurance Company does not 'by thus treating or holding your last remittance,*209 nor by sending, or receiving, or considering an application for reinstatement or a health certificate, nor in anything it does in the premises, or hereby, except by absolute reinstatement and revival of the policy and written notice thereof to yon, waive the forfeiture which has occurred.
Plaintiff made no reply to this letter, and on September 5th the defendant returned the premium remittance received from him. Under date of September 15th, plaintiff returned the premium to the company, and it, in turn, on September 17th, returned the same to plaintiff, with a statement that his policy had lapsed, and that, to renew -the same, it was necessary to have a health certificate duly signed; and another blank was sent, to be filled out and returned to the company. A statement was made in this letter to the effect that if the health certificate, when returned, should be approved by the medical department of the company, the policy would be reinstated; otherwise the premium would be returned, as the policies were then null and void. Again, under date of September 26th, plaintiff returned the premium due July 1st, and also sent a draft for the premium maturing October 1st. Thereupon, under date of October 11th, the company returned these drafts, with a statement that the policy had lapsed. No further payments were made by the plaintiff, and this action was commenced February 12, 1903.
Plaintiff never furnished the defendant company with a health certificate, nor did he at any time expressly object to the forms sent him by the company. His position was embodied in the following excerpt from his letter of September 15 th.
It might interest you, if I tell you, that the Hettners often paid such premiums after they were due and that your new policy [the National Life] expressly provides that unpaid premiums shall be a debt to your company, you to have a lien, etc., on policies. Other matters, which I need not now disclose, combine to estop you from claiming forfeiture.
You can consider this a written -notice of our election to insist on our rights under the said policies.
Under the facts above recited, plaintiff’s counsel practically admits there was a forfeiture of the policy for nonpayment of the premium due July 1st, and that he cannot recover in this action unless he shows a waiver of this forfeiture, or an estoppel on the part of the defendant from relying thereon. 'While many things are relied upon as constituting this waiver or estoppel, we shall not refer to all, but content ourselves with a reiteration of those matters whereon we are constrained to hold that the trial court was justified in coming to the conclusion that it did, or which to our minds furnish such a basis for its finding as to preclude our interference. Before going to these, it may be well to again state what a waiver is. It has been shortly defined as “ the intentional relinquishment of a known right.” Perhaps a better and more comprehensive definition is given by Mr. Bishop in his work on Contracts, section 792, as follows: “Waiver, in a general way, may be said to occur whenever one in possession of a right conferred either by law or by contract, and knowing the attendant facts, does or forbears to do something inconsistent with the exercise of the right, or of his intention to rely upon it, in which case he is said to have waived it, and he is estopped from claiming anything by reason of it afterwards.”
We now recur to the facts. The receipts given by the defendant for premiums paid each contained this statement: “ It is understood that the receipt of this company of payments after due is only on condition that the member is alive and in good health at the time of such receipt.” On this statement, re-enforced by a custom on the part of other
As has been observed, the case was tried to the court as a law action, and we are constrained to hold that there was enough evidence to justify it in finding that there was a waiver of the forfeiture for nonpayment of the July premium. No consideration was necessary to support the al.leged waiver. Such a result arises from conduct, and is ordinarily a question of fact for the trier of such an issue.
We have not considered every question argued, for to do so would unduly extend an opinion already too long. The controlling thought, after all, is not what we might think of the questions of waiver and estoppel, had the case been submitted to us for trial de novo, but, rather, is there sufficient testimony to support the finding of the trial court on the issues of fact, and to negative the thought that its conclusion on the whole case was tire result of prejudice or passion ? That there is sufficient testimony to support the judgment is apparent from what has already been said. It is therefore affirmed.