66 P. 663 | Cal. | 1901
Action to recover $2,500 upon a policy of life insurance. The case was tried with a jury, and verdict rendered for plaintiff for the amount claimed. Judgment was accordingly entered, and from the judgment and order denying a new trial the defendant appeals.
On January 21, 1893, the defendant, in consideration of a premium of $43.70, issued its policy of insurance by which it promised to pay Mathilda Nielsen, wife of John Nielsen, $2,500 within sixty days after proof of the death of John Nielsen, provided such death should occur on or before the twenty-first day of January, 1894. The policy contained the following clauses and conditions: “And the said society further agrees to renew and extend this insurance upon like conditions, without medical re-examination, during each successive year of the life of the insured from date hereof, upon the payment, on or before the twenty-first day of January in each such year, of the renewal premiums, in accordance with the schedule rates, less the dividends awarded hereon.” “Failure to pay any premium or semi-annual or quarterly installment thereof when due will thereupon terminate this policy.” “After deducting the expense charge, which is limited to four dollars per annum on each thousand dollars insured, the society agrees to divide the residue of each renewal premium received by it upon this policy as follows: Such amount as shall be required for this policy’s share of death losses will be appropriated as a death fund, to be used solely in settlement of death claims. The remainder thereof will be retained as a guaranty fund. The amounts so retained on account of this policy will be used towards offsetting any increase in the premium on this policy from year to year; or, provided this policy, after five full years’ premiums have been paid, be terminated solely by nonpayment of any stipulated premium when due, eighty per cent of any amount so retained, but not so used, will be applied to extend this insurance, or, if application be made
We do not think there is sufficient evidence to sustain the verdict as to either count. As to the first, it is not claimed, and there is no evidence tending to show, that the premium was paid on or before the twenty-first day of January, 1896. It is therefore evident that the policy became void after January 21, 1896, unless it is shown that defendant waived the payment by accepting the premium, or in some other manner, and it is claimed that such waiver is shown by the evidence. It appears that it was the custom or rule of this company—as in fact it is of most insurance companies—to reinstate the insured within thirty days after the policy has become forfeited upon application of the insured, payment of the premium, and a health certificate properly signed as required by the rules of the company. On January 25, 1896, the manager of defendant wrote to deceased, informing him that his premium, $22.73, was due January 21st, and asking him to remit the amount, with the health certificate properly signed. In this letter deceased was urged to remit the amount at once and sign and return the health certificate, a copy of which was inclosed in the letter. In answer to the above letter, deceased wrote on January 27th acknowledging the receipt, and stating that he would remit the amount in a few days. On February 4th, plaintiff wrote to defendant asking about the payment of the premium, stating that she wanted to attend to it if her husband had not done so, as he was very careless. This letter was promptly answered by defendant’s manager February 5th, in which the amount of the premium was stated, $22.73, that it was due January 21st,
“According to the conditions of'the contract, he has thirty-days after due date in which to pay, provided he can sign a health certificate, a blank of which we inclose. In remitting the premium, kindly return this health certificate, signed by your husband, and having it witnessed.
“Yours, very truly,
“G-. C. PRATT, Manager.
“Send postoffice order.”
Not having received the premium nor the health certificate, the defendant’s manager again wrote to plaintiff on February 14th, and in this letter said: “The premium on your husband’s policy, No. 50,386, of $22.73, was due January 21st, and has not been paid, and if not paid before the 21st inst. we cannot receive it. We have already sent you health certificate, and trust you will give this your immediate attention.” On February 17th deceased sent a Wells-Fargo money order for $22.75, inclosed in a letter, but did not send the’health certificate. The manager of defendant thereupon, on February 18th, again wrote to deceased, acknowledging the receipt of the money order, and in the letter said: “Before we can send you the regular receipt, it will be necessary for you to sign and return the inclosed health certificate, having it witnessed. Where a premium is overdue, the company always requires this blank to be filled out before the premium can be accepted.” In this letter another blank health certificate was inclosed. To this letter no reply was received and no health certificate ever sent to defendant. On February 19th John Nielsen died, and after hearing of his death the $22.75 was returned. At the time he died the money order had not been cashed, nor had it been at the time of the trial.
We do not think the above evidence sufficient to show any waiver by defendant. It had stated over and over again the conditions upon which the insured could be reinstated. The premium must have been paid and a health certificate sent to defendant within the thirty days. The deceased had been notified before the premium was due and had failed to pay. The policy was thereupon, according to its terms, dead, but defendant allowed the usual thirty days’ grace, and urged deceased to avail himself of it by complying with the rule as
In regard to the second count, it is claimed that under the laws of New York the deceased should have been notified iat least fifteen, and not more than forty-five, days before the premium became payable. Defendant proved by the witness Milair that on December 20, 1895, he prepared a notice in writing, stating the number of the policy, the amount of the premium, the place where it should be paid, and the person to whom it was payable; that said notice was addressed to John Nielsen, at St Helena; that “said notice was inclosed in a securely closed envelope, and the postage thereon was paid by the corporation, the Provident Savings Life Assurance Society, and such notice, so addressed and inclosed in such envelope, the postage prepaid thereon, was deposited by me in the general postoffice in the city of New York, on the twentieth day of December, 1895.” This notice complied with all the statutory requirements.
The plaintiff argues in support of the third count that, under the laws of New York, therewas a sum exceeding five dollars in the’ reserve fund, which belonged to deceased, and this amount was more than sufficient to purchase temporary insurance from January 21, 1896, up to the date of death.
We do not deem it necessary to decide the much discussed question, as to whether or not the policy in this case is a regular life policy, or a policy for one year only, being renewed each time the annual premium is paid. Nor is it necessary to decide the meaning of “reserve fund,” nor the question as to whether or not there was sufficient in the “reserve fund” to carry temporary insurance from the 21st of January, 1896, to the death of deceased. The policy was a contract, and is to be governed by the same rules that apply to all contracts. It had its inception in the issue of the policy, and was a
In the policy there is no agreement as to the application of the reserve fund to continue the insurance in any manner until after the payment of five annual premiums. The agreement is that the surplus shall be retained as a “guaranty fund,” to be “used toward offsetting any increase in the premiums on this policy from year to year.” Then follows a provision that after five full years’ premiums have been paid, if the policy shall be terminated by nonpayment of premiums, eighty per cent of the guaranty fund will he applied to extend the insurance, provided application he made while the policy is in full force and effect. The interpretation we have given to the statute is not without authority. In the case of Blake v. National Life Ins. Co., 123 Cal. 473, 56 Pac. 101, the insured died without having paid the premium, and without having furnished the health certificate. The policy contained a stipulation that, although failure to pay an annual premium when due would cancel a policy, still, after three full annual payments, the company guarantees, “(1) without any action on the part of the insured, a paid-up policy for one thousand and eighty dollars; (2) upon surrender of his policy within two months, a cash value of five hundred and thirty dollars and twenty cents; (3) upon application within two months, to give extended insurance for the full amount of this policy for three years two hundred and fifty-eight days.” The court in the opinion said: “Necessarily these were alternative propositions. Dr. Blake took neither, as, no doubt, his fixed intention was to have his policy renewed.” In Knapp v. Insurance Co., 117 U. S. 412, 29 L. Ed. 960, 6 Sup. Ct. Rep. 807, the policy contained a clause that, after the payment of the two annual premiums, then, upon default in the payment of a premium, the insured should have .the right to four-fifths of the net value of the policy, according to the combined experience or actuaries’ rate of mortality, as a net single premium for temporary insurance, or, at his option, a paid-up policy for the full amount of the premium paid. The court in the opinion said: “But the proviso does not say that, upon a failure to surrender the original policy and to apply for a paid-up
We are cited to two eases which it is claimed support a contrary view. We have carefully examined them, and, while we do not agree to all that is said in the opinions, we do not think they directly conflict with the views herein given. In Wheeler v. Connecticut etc. Ins. Co., 82 N. Y. 553, 37 Am. Rep. 594, the policy provided that if, after the payment of two or more annual premiums, the policy shall
The court, at the request of plaintiff, instructed the jury as follows: “The plaintiff alleges in her complaint that on January 21, 1896, the date when, according to the terms of the policy sued on, the seventh semi-annual premium thereon became due, there was a reserve on said policy of not less than five dollars, calculated as provided in said statute, and that said sum, taken as a single premium of life insurance at the published rates of the defendant at the time said policy was issued, was more than sufficient to purchase temporary insurance in the sum of twenty-five hundred dollars for the period of one month upon the life of John Nielsen at his age, on said 21st day of January, 1896. This is a
It follows from what has been said that the judgment and order should be reversed.
We concur: Chipman, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment and order are reversed.