85 So. 93 | Miss. | 1920
delivered the opinion of the court.
On the 5th day of June, 1917, appellant, New York Life Insurance Company, issued its policy for two thousand dollars to one Julius A. Alexander. On page 1 of said policy the following provision occurs:
“This contract made in consideration of the payment in advance of the sum of twenty-three dollars and ninety-six cents, the receipt of which is hereby acknowl
Under the heading, “Payment of Premiums,” the following provision occurs:
“The payment of the premium shall not maintain the policy in force beyond the date when the next premium shall be due, except as to the benefits provided herein after default in premium payment.”
The policy under ■ the heading “Surrender Values,” on the second page, provides that there would be no nonforfeiture benefits available under the policy upon its lapse for nonpayment of premiums until after three full years’ premiums had been paid. It is admitted that in this case three full years’ premiums had not been paid' before default in the payment of the premium, and therefore it necessarily follows ' according to the contract that upon the lapse of the policy in question all insurance benefits thereunder ceased.
• All the premiums on said policy were paid when due as provided therein, down to the premium of twenty-.three dollars and ninety-six cents, due August 8>, 1918, but the August 8, 1918, premium- never was paid or tendered to the company, nor was any premium on said policy paid, or tendered to the company, that became due after May 8, 1918.
The policy contains also the' following provisions:
“Whenever the company receives due proof before default in the payment of premium, that the insured, before the anniversary of the policy on which the insured’s age at Nearest birthday is sixty years, and subséquent to the delivery hereof, has become wholly disabled by bodily injury or disease, so that he. is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has
“1. Waiver of Premium. Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary, waive payment of the premium for the ensuing insurance year, and, in any settlement of the policy, the company will not deduct the premium so waived. The loan and surrender values provided for under sections 3 and 4, shall be calculated on the basis employed in said sections, the same as if the waived premiums had been paid as they became due.
“3. Recovery from Disability. The company may at any time, and from time to time, but not oftener than once a year, demand due proof of such continued disability, and upon failure to furnish such proof, or, if it appears that the insured is no longer wholly disabled as aforesaid, no further premiums shall be waived, nor income payments made.”
About the 1st of June, 1918, the insured, Mr. Alexander, was1 stricken with appoplexy, and remained unconscious for about forty-eight hours. Shortly thereafter he was taken to the sanitarium at Newton, Miss., where he remained for about thirty days. His condition while at the sanitarium can be best described by quoting from the evidence given by Dr. W). Gk Grill, a witness for the plaintiff:
“Q. Was his mind clear and lucid during the time? A. Only at times; at times he was, and at times he was not.
“Q. So he at times could understand things, appreciate things just like the average man, Doctor?
“A. Yes, at times he could answer questions, and ask questions, and ask what hie wanted; at times, yes.
It appears some time in June, 1918, Mr. Alexander left the Newton Sanitarium, and returned home, at Montrose, Miss. From that time until his death on ..September 22, 1918, he was in such physical condition that he could1 walk around, talk with the members of his family and Ms friends1 about the ordinary affairs of life; at titties his mind would appear clear and his conversatin wuld be rational and' intelligent, and at other times not. However, he never regained Ms physical or mental strength sufficiently to engage in business.
The record shows that a premium on said policy was due on August 8, 1918, and that this premium was never paid or tendered to the company; that the policy provided for thirty days of grace within which to pay said premium; that said premium was never paid, or tendered to the company during said period of grace, or at any other time.
It was further shown that on July 13, 1918., the Jackson office of the New York Life Insurance Company mailed to the insured, Julius A. Alexander, at Montrose, Miss., the usual and customary notice of premium due on August 8!, 1918, on the policy in question.
On August 31, 1918, the following letter was received at the Jackson, Missi., branch office of the New York Life Insurance Company:
‘1 Montrose,_ Mississippi, 8 — 29—18.
‘ ‘ Gentlemen: Have you mailed me a statement of my policy of third payment 1918- (No. 6150580). If you have I have never received the same.
“Yours very truly, J. A. Alexander..”
On the same day the following letter was written and mailed. to Mr. Alexander, in reply to the above;
“Mr. Julius A. Alexander, Montrose, Mississippi— Dear Sir: Re Policy No. 6150580. Replying to your letter of the 29th instant, I beg to advise that a quarterly premium of twenty-three- dollars and ninety-six cents ■was due under your above numbered policy on August 8,1918. If your check is mailed on or before September 8th, it will be accepted.
“Yours very truly,
“H. II. Graham, Cashier.”
To explain this letter the plaintiff introduced ‘as a witness Dewitt Alexander, a young man about twenty-one years of age, the son of Julius A. Alexander, deceased, the- insured. This young man testified that the letter purporting to have been written by J. A. Alexander, set out above, was in fact written - by the witness, Dewitt Alexander; that in writing the letter he had the policy of insurance in his possession, and referred to the policy when writing the letter, in order to ascertain the number of the same, which, it will be observed, he sets out in his letter; that notwithstanding the fact that he could read and write, and was a young man of fair intelligence, he made no further attempt to ascertain when the premium was due, or to pay the same-when due. It is further shown that he failed altogether to inform the company of his father’s condition, or to make any proof of his alleged disability.
It was further shown that appellant, New.York Life Insurance Company, had no notice or knowledge of any kind of the alleged disability of the insured, until several days after the death of the insured; that no proof of any kind of the alleged disability of the insured was ever made or furnished to the company; and that the first knowledge the company had of the alleged disability of the insured was after the death of the insured, when the brother of the insured called at the Jackson
The court rendered a judgment in favor of the plaintiff, for the amount sued for, and the defendant has appealed.
The authorities seem to be ag'ainst the view adopted by the trial court. The policy sued on was and is the contract between the company and the insured. The company agreed to pay a certain sum upon the reception of the proof provided for by the contract of insurance. As was said by the supreme court of New York in Wheeler v. Connecticut Mutual Ins. Co., 82 N. Y. 550, 37 Am. Rep. 597.
“While as a, general rule, where the performance of a duty created by law is prevented by inevitable accident, without the fault of a party, the default will be excused, yet when a person by express contract engaged absolutely to do an act not impossible or unlawful at the time, neither inevitable accident, nor other unforeseen contingiency not within his control, will excuse him, for the reason that he might have provided against them by his contract.”
The supreme court of the United States in Thompson v. Ins. Co., 104 U. S. 262, 26 L. Ed., 765, had this to say:
“In the second replication the excuse set up is that before the note fell due Thompson became sick and mentally and physically incapable of attending to business until his death on the 3d day' of November, 1874, and that the plaintiff was ignorant of the outstanding note. We have lately held; in the case of Klein v. Ins. Co. (Ante, 662), decided at the present term, that sickness or incapacity is no ground for avoiding the forfeiture of a life policy, or for granting relief in equity against forfeiture. The rule may, in many cases, be a hard one; but it strictly follows from the position that the time of payment of premium is material in this con
Cases might be multiplied holding that the contract controls. It is our opinion that the verdict was in direct opposition to the provisions of the terms of the contract. The proof of disability was never made, and the judgment of the court below will be reversed, and the cause dismissed.
Reversed and dismissed.
