124 Ky. 266 | Ky. Ct. App. | 1907
Lead Opinion
Opinion op the Court by
Affirming.
On- the 6th day of April, 1885, the appellant issued a’ policy of insurance for the sum of $5,000 upon the life of Jonathan T. Barnett; the annual premium due thereon being $189.60. The assured paid the presen
On the 26th day of September, 1896, Barnett executed a note to the appellant for $1,000. He only received $940, the remaining $60 was advanced in the payment of interest on the note for 12 months. He
It seems to us that the appellant was entitled to have a settlement of the policy when it lapsed; it was not obligated to await the death of the insured before adjusting the same; by so doing the interest on the note might have exceeded the value of the policy, and it would have lost money as a result. The rights of the parties were not changed by reason of the fact that the insured died within a few years thereafter. A true basis for the settlement is to ascertain the actual cash value of the policy at the time it lapsed, April 6, 1897, considering the age of the insured and his expectancy of life under the mortality table; from that sum deduct the debt of $971.50, owed by the decedent, reduced by reason of payment of interest in advance. The balance would have been due to the assured. However, as the parties have treated this case upon another principle, and, as the result reached is practically the same, we will determine it upon the method fixed in the pleadings and proof. We do not think appellant had the right to deduct 25 per cent of the reserve of $1,506.25; nor did it have the right to
Eor these reasons, the judgment is reversed, and remanded, for further proceedings consistent herewith1.
Rehearing
Response to Petition eor Rehearing by
Appellant asks a modification of the opinion delivered herein on November 2, 1906, on the ground that the court while applying principles of law not further disputed, was, in error in the application o'f the facts. The petition states as a fact, and quotes with assurance, certain testimony noted below, the practice of appellant and “all other standard life insurance companies,” in applying the reserves of lapsed policies to the purchase of paid-up insurance, that the companies retain 25 per cent of the reserve as a surrender charge, and apply only the 75 per cent remainder, less indebtedness to the company, in buying paid-up insurance. It is also stated, in the petition for rehearing and in the testimony alluded to, that this practice is warranted by and in line with the Kentucky Statutes on this subject. In the original opinion it was said that this deduction of 25 per cent .of the reserve was irregular and unauthorized. It is argued in response that the court is in error in
The testimony alluded to is the deposition of Mr. Jesse J. Barker in the record, as follows: “Here it seems necessary to explain what is meant by ‘reserve’ and ‘cash- surrender value,’ as used in the policy and note. The Penn Mutual Life Insurance Company, in common with all other standard life insurance companies, pursues the following course in regard to its policies: A- level premium is charged to the insured throughout the period of the life of the policy. As the risk of death is constantly increasing, the level or average premium during the earlier years of the policy exceeds the amount of risk run by the company in any given year. During the latter years of the life of the policy the premium is' less than the amount of risk in any given year. The difference between the premium charged in any one of the earlier years and the actual amount of risk run in that year is carried by the company into its ‘reserve,’ and thus a fund is created to meet the years, when the premium is less than the risk. When a policy ceases to be in force, either by virtue of a surrender or lapse by reason of non-payment of premiums or otherwise, it may happen that under the terms of the contract the insured is entitled either to receive a cash value for his policy or to paid-up insurance of such amount as said cash value will purchase. In order to ascertain the sum which will be paid to the insured in cash, the entire reserve derived from premiums paid under the policy in question is first ascertained, and of the sum thus ascertained 75 per cent is paid to the insured. The remaining 25 per cent is retained by the company as part of its general reserve fund. The reason for retention is that, if the full reserve were to be paid in cash to each policy holder upon demand (as few, if
As a matter of fact the policy in suit in this case was issued at a time when there was no statute of this State requiring life insurance companies to' allow or provide for issuing paid-up , insurance upon lapsed policies. Section 659, Ky. Stat., 1894, a part* of the act of 1891-93, provided: “All policies hitherto issued by any domestic life insurance company shall be sub
It is suggested that the settlement in this case was had under this statute. But this is an error. For the statute is restricted in its application to policies issued subsequent to its enactment. So is the amendment of section 659, Ky. Stat. .(the act of 1902), found in the edition of 1903, Carroll’s Statutes. That section, as now amended, reads:
“All policies hitherto issued by any domestic life insurance company shall be subject to- the provisions*279 of law applicable and in force at the date of such issue.
“Subdivision 2. No policy of life or endowment insurance upon the ordinary plan hereafter issued by any domestic life insurance company shall become forfeit or void, for non-payment of premiums, after three full years’ premiums, in cash, have been paid thereon; but, in case of default in the payment of any premium thereafter, then, without any further stipulation or act, except as herein provided, such policy shall be binding upon the company for the amount of paid-up insurance, which, according to the company’s published tables of single premiums, the net value of the policy on such anniversary, and all dividend additions thereon, computed by the rule of section 116 of the act, to which this is amendatory, and which section is section 653, Kentucky Statutes, will purchase as a net single premium for life or endowment insurance maturing and terminating at the time and in the manner provided in the original policy; and such default shall not change or affect the condition or terms of the policy, except as regards the payment of premium and the amount payable thereon: Provided, however, That any company may contract with its policy holders to furnish, in lieu of the paid-up insurance provided for in this section, any other form of life insurance lawful in this - commonwealth, of not less value.
“The reserve of such paid-up insurance shall not be less than two-thirds of the reserve of the original policy; but any outstanding indebtedness on the account of said policy shall operate to reduce the said paid-up insurance, computed by the rule of section 116 of the act, to which this is amendatory, and which section is section 653, Kentucky Statutes.
“Every such policy after the payment of three full*280 years’ premium thereon, in cash, shall have a surrender value, which shall not be less than seventy per cent of the reserve that would be required- for the aforesaid paid-up insurance, after deducting any indebtedness as above provided, computed by the rule of section 116 of the act, to which this is amendatory, and which section is section 653, Kentucky Statutes-.
“Subdivision 3. No policy of life or endowment insurance upon the industrial plan hereafter issued by any domestic life insurance company shall become forfeit or void, by non-payment of premiums, after five full years’ premiums, in cash, have been paid thereon, but in case of default on above mentioned or subsequent anniversary in the payment of any premium thereafter, then, without any further stipulation or act, except as herein provided, 'such policy shall be binding upon the company for the amount of paid-up insurance, which, according to the company’s published table of single premiums, the net value of the policy on such anniversary, and all dividend additions thereon, computed by the rule of section 116 of the act, to which this is amendatory, and which section is section 653, Kentucky Statutes, will purchase as a net single premium for life or endowment insurance, maturing or terminating at the time and in the manner provided in the original policy; and such default shall not change or.affect the conditions or terms of the policy, except as regards the payment of premiums and the amount payable thereon: Providéd, That any company may contract with its policyholders to furnish, in lieu of the paid-up^ insurance provided for in this section, any other form of life insurance lawful in this commonwealth, of not less value. And provided, further, that on industrial policies defaulting and surrendered to the company on their fifth, or any succeeding anniversary, applica*281 tion for said paid-up policy shall be made in writing within eight weeks after said default, on blanks obtainable from the company for that purpose.
“The reserve for such paid-up insurance shall not be less than two-thirds of the reserve of the original policy; but, any outstanding indebtedness on account-of said policy shall operate to reduce said paid-up insurance in proportions to its ratio to the reserve for such paid-up insurance, computed by the rule of section 116 of-the act, of which this, is amendatory, and which section is section 653, Kentucky Statutes.
“Every such policy, subject to conditions as to paid-up surrender values, after the payment of five full years’ premiums thereon, shall have a surrender value which shall not be less than seventy per cent of the reserve that would be required for the aforesaid paid-up insurance, after deducting for all indebtedness as above provided, computed by the rule of section 116 of the act, of which this is amendatory, and' which section is section 653, Kentucky Statutes.
“On policies of industrial insurance, where the weekly premiums are less than fifty cents each, it shall be optional with the company issuing said policy, to pay either the cash surrender value or issue a paid-up policy of insurance, and upon such payments, the company shall be absolutely released from all further claims or demands whatsoever under or -by reason of said policies, which shall then be canceled.
“The provisions of this section shall not apply to policies issued on the lives of persons under ten years of age, until five years after attaining that age.
“Subdivison 4. In construing the provisions of this act, ordinary insurance, or insurance upon the ordinary plan, shall be considered to be insurance which may be paid for by annual premiums, or by semiannual, or quarterly, or other installments thereon at*282 the option of the company, and industrial insurance shall be considered as insurance purchasable solely by weekly premiums.
“Any condition or stipulation in the policy of insurance, or elsewhere, contrary to the provisions of •this section, and any waiver of such provisions by the assured, shall be void. ’ ’
Appellant’s contention is, sharply, that it had the right, and under the statutes quoted above the same right is given, to deduct a surrender charge of not more than one-third of the reserve when a paid-up policy is issued upon a lapsed policy. To this we are unable to agree. As there was no statute on the subject in Kentucky when the policy in this case — the original contract — was issued, and as no statute of the parent State of the corporation is relied on, the contract set out in the policy is the sole measure of the parties'’ rights concerning paid-up insurance. It will be seen from the quoted clauses found in the original opinion that, after five full premiums had been paid, the insured was entitled to a paid-up policy for as many twentieths of the original' sum insured as there were premiums paid, “provided all outstanding liability on this policy is paid off.” As 12 premiums had been paid, the insured would have been entitled to twelve-twentieths of $5,000 (the original insurance), if there had been no indebtedness. The only real question then was, where should the indebtedness be credited? On the reserve, which was used in buying the paid-up insurance; or, on the amount of paid-up insurance? We held that it should be credited on the reserve as of the date of the lapse. The policy, in this provision, deals with the application of the reserve to the purchase of the paid-up insurance. The reserve is that part of all the premiums paid on the policy, which, when increased by
But the witness Barker says that it was and is the custom with appellant company and all other -standard insurance compaMes to deduct 25 per cent o-f
Nor do our statutes, warrant a contrary view. In the old section, the expression, “the holder shall be entitled to not less than two-thirds, of its then net
We know that all premiums are based upon three items: One, and always the first, the proportion of it necessary at interest compounded, based upon the expectancy of the life insured, to pay the .assured the sum insured when the policy matures; two, the proportion necessary to pay its part of death losses oecuring in its class (these two are the net premiums); and, three, enough more to pay its share of expenses and incidental losses in the business. The latter is called “loading.” There is no limit to the amount of loading a company may do. It all depends on whether the insured will pay it. If he does, unless that which is charged in excess of actual expenses and losses is> returned' to him in “dividends,” he never gets any benefit from it. So, after one is already in, and his policy has lapsed for default in premium, the statute automatically converts his reserve (and “dividend additions”) into a fund to buy paid-up insurance. But the sentence last herein quoted from the statute is to keep the insurer from consuming too much of the insured’s reserve by loading it to death. It is therefore required that this single premium, as published, must in all events buy such insurance as that its reserve (for all sane and safe life insurance must have a reserve) shall not be less than tw'o-thirds of the original reserve. In other words, the “single premium,” alluded to in the statute, must not consume more than one-third- of the defaulting policy holder’s reserve for any other purpose than that, of finally redeeming that identical policy. We have gone thus fully into a discussion of our statutes to show
Finally, the note in this case, in so' far as it attempted to allow such a charge was usurious. N. Y. Life Ins. Co. v. Curry & Bro., 115 Ky., 100, 72 S. W., 736, 61 L. R. A., 268, 103 Am. St. Rep., 297. Where the original opinion uses the expression, “A true basis for the settlement is to ascertain the actual cash value of the policy at the time it lapsed,” it was meant the “net value” of the policy.at that date; net value being equivalent to “reserve.” There is a distinction between the “net value” and the “cash surrender value” of a life insurance policy.
Petitions for rehearing and for modification of opinion are overruled.