16 Kan. 481 | Kan. | 1876
The opinion of the court was delivered by
On the 23d of March 1871, the plaintiff in error issued to Joseph A. Cox and Mary Cox a joint life-policy of insurance in the sum of $5,000, loss payable to the survivor, the annual premium on which was $285, payable on or before the 23d day of March in each year. The first and second annual premiums were paid, but the premium which became due March 23d 1873 was not then paid, nor has it since been paid. In the body of the policy is a stipulation in these words:
“And the said company promises and agrees, that if default shall be made in the payment of any premium after the second annual payment it will issue a paid-up policy for a sum equal to the full amount of the ordinary annual premiums so paid at the time of such default, provided written application be made therefor, and this policy and all interest therein, be surrendered within three months from the date of such default.”
In the body of the policy were several conditions, the 2d, 3d, and 5th being in the words following:
“ 2d. If the said premiums shall not be paid at or before 12 o’clock noon, on or before the day above mentioned for the payment thereof, at the office of the company, or to agents when they produce receipts signed by the president or secretary, then and in every such case, the company shall not be liable for the payment of the whole sum insured, but only such parts thereof as is expressly stipulated above, and the remainder shall cease and determine.
“ 3d. In case this policy shall cease - and become null and void, all payments thereon shall bé forfeited^to the company.” “ 5th. If this policy is assigned or held as security, written notice shall be given to the company, and due proof of interest produced with proof of death.”
A complete copy of the policy is attached to the answer.
“For value received we hereby transfer and assign to David Kelso our claim and account amounting to $570, with the interest thereon, against the Missouri Valley Life Insurance Company. Joseph A. Cox,
“ Oswego, Kansas, January 23d, 1874. Mary Cox.”
The insurance company now claims that neither the petition below, nor the evidence, shows any cause of action in favor of the plaintiff below and against the insurance company. We however think they both do. The fault of the insurance company was, in failing and refusing to issue a paid-up -policy in accordance with the terms of its agreement. And this failure and refusal we think the petition sufficiently alleges, and the evidence sufficiently proves. A correspondence was had between the company and the insured with regard to the issuing of a paid-up policy prior to any default on the part of the insured, and the correspondence was continued until after such default. The company seemed to be entirely willing to issue a paid-up policy until April 23d, 1873, when its secretary wrote and sent the following letter to the insured, to-wit:
Leavenworth, Kansas, April 23d, 1873.
J. A. Cox, Oswego, Kansas.
Dear Sir: We are in receipt of your favor of the 21st instant, with policy 2870, for commutation. We discontinued the issue of joint policies a year ago, and consequently have no blanks of that form. We would be glad to issue you a paid-up policy of increased amount upon the life of either yourself or Mrs. Cox, if such an arrangement could be effected. Please let us hear from you.
Truly yours, J. I. Jones, Secretary.
No offer was ever subsequently made by the company to issue
But. probably the most difficult question in an action for damages, such as this, is, what should be considered the measure of the damages? In the present case the paid-up policy should have been issued on the joint lives of Cox and wife, and under it the survivor would have been entitled at the death of the other to the sum of $570. But when such death would occur, or when this sum would become due, of course no one can tell. It might be on the same day on which the policy were issued, or it might not be for fifty years thereafter. Evidently then, while both the parties are living, they should not be entitled to recover in an action for a failure to issue the policy more than one of them would be entitled to recover on such policy at the death of the other. In fact, it would not seem that they would be entitled to recover as much. The use of the money is surely worth something. If one of the parties should die before judgment were rendered, then the amount of the judgment should probably be the amount for which the policy should have been issued, together with interest from the date of such death. If how
As the cause of action in this case arose out of contract, and is for damages to be paid in money only, we suppose there can be no queston as to its assignability.
The judgment of the court below will be reversed for the errors above mentioned, and cause remanded for a new trial.