157 Ky. 46 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
On December 21, 1907, the Southern States Mutual ■Life Insurance Company issued to Conway W. Noble a policy insuring his life in favor of his wife, Ida E. Noble, for $5,000. .Among the material provisions of the policy are the following:
“In consideration of the representations made in the application herefor and the sum of $113.75 first quarterly premium in advance and a like sum on the 21st day of March, June and September next hereafter, insures the*47 life of Conway W. Noble, of Cleveland, Cuyahoga County, State of Ohio (hereinafter called the- insured), for the amount of $5,000, payable at the home office of the company in Charleston, West Virginia, less any indebtedness to the company and any unpaid portion of the full annual premium, immediately upon receipt of satisfactory proof of death of the insured during one year from the date, hereof, to Ida E. Noble, wife of the insured or in the event of her prior death, then to the executor, administrator or assigns of the insured. This policy may be renewed at and after the expiration of the first year as a whole life participating policy, from that date for the same amount by the payment of $113.75 on the 21st day of March, June, September and December thereafter in each year.”
“Each premium is due and payable at the home office of the company in the city of Charleston, but premiums may be paid to an authorized agent of the company in exchange for the company’s, receipt signed by the president or secretary and countersigned by the agent.
“The unpaid portion of any year’s premium, if any, will be deducted ini any settlement of the policy.
“Failure to pay any premium, when due, will avoid this policy, and forfeit all premiums to the company, except as herein provided.”
“After one year this policy shall be indisputable for the breach of any of the provisions hereof: ’ ’
Conway W. Noble died December 15, 1910. Payment on the policy having been refused, this action was brought by the beneficiary, Ida E. Noble, to recover thereon. It is alleged in the petition that Conway W. Noble paid to the defendant in advance the sum of $113.75 provided in the policy, and a like sum in March, June and September next following the issuance of said policy, and at the expiration of the first year he renewed said policy - as a whole life participating policy. A demurrer being sustained to the petition, plaintiff filed an amendment pleading in substance that her husband did pay to the defendant $113.75 in advance provided for in said policy, and a like sum in March, June and September next following the issuance of said policy, and that at the expiration of the first year in which said policy was in force plaintiff’s intestate elected to continue said policy as a whole life policy by paying the quarterly
It will be observed that neither the petition nor the amended petition alleges that the premiums due for December, 1909, and for March and June, 1910, were ever paid, or any fact from which payment on these occasions is necessarily implied. Nor is it shown that there was ever any waiver on the part of the company of the provision of the policy requiring the payment of such premiums. Moreover, it is not charged that the premiums already were sufficient to continue the policy in force.
For plaintiff it is insisted that the covenant on the part of the company to pay the policy and the covenant on the part of the insured to pay the premiums are independent, and that his mere agreement to pay the premiums after the first year, construed1 in the light of the actual payment of certain premiums, is sufficient to indicate an intention on his part to renew the policy as a whole life policy, and that being true it was not necessary to pay all the premiums due in order to keep the policy in force. In other words, it is argued that payment of premiums was not necessary to keep the policy alive, but that his mere agreement to pay was sufficient. This view, it is claimed, is strengthened by the stipulation of the policy providing that “after one year this policy shall be indisputable for the breach of any of the provisions hereof.” In this connection we are cited to a number of authorities holding in eases of ordinary contract that if the promisor is willing to accept a promise in return for his promise and does not insist on the performance of the act or forbearance stipulated for, such promise is as lawful a consideration as the doing of the thing promised would have been. Page on Contracts, section 296; Kernan v. Carter, 31 Ky. L. R., 867; Stovall v. McCutcheon, 107 Ky., 577; Henderson v. Richards, 1 J. J. Mar., 490; Hutchings v. Moore, 4 Metc., 112; Payne v. Bettisworth, 2 A. K. Mar., 427. It is insisted that this principle is applicable to insurance policies because the very 'character of the contract is such that no duty to perform arises on the part of the insurer until the death of the insured, and immediately upon the arising of its obligation that of the insured ceases because
Judgment affirmed.