116 Ky. 742 | Ky. Ct. App. | 1903
Opinion of the court by
Reversing.
•On April 27, 1S70, the Southern Mutual Life Insurance •Company of Kentucky, appellant’s predecessor, issued to
F. M. O’Neil was a party to the contract and one of the plaintiffs in the action. He was therefore testifying for himself. Chaplin, -'the person with whom the transaction oc
It remains, therefore, to determine whether, without this evidence, there is sufficient testimony in the case to sustain a judgment. The fact that, six years after Chaplin ceased to be agent for the company, the policy was1 found among his papers .at Lebanon and returned to O’Neil, proves nothing against the company. In answer to the question whether at any time he demanded of the defendant a paid-up policy, O’Neil states in his deposition that he wrote the company to grant him a paid-up policy, but he does not say when this was. He also says in another place that after the death of Chapl'ih he wrote to the defendant demanding a paid-up policy, and the company answered that the policy had not been presented in time, and that just before he instituted the suit he again made this demand and was again refused. The proof for the company shows that it kept a record of its correspondence, an)d the only demand shown by this record was made in June, 1901. The policy itself provides that a paid-up policy will be issued upon demand thereof within thirty days after the forfeiture. This court has in a number of cases held that time is not of the essence of the contract
The insured had an option to stand upon his original policy and his rights thereunder, or to take a paid-up policy for
Judgment reversed, and cause remanded for a judgment as herein indicated.