244 S.W. 845 | Tex. App. | 1922
The assignment of error is in effect that the uncontroverted evidence entitled the appellant to recover, and that the court erred in refusing him a judgment for the amount of the policy, interest, penalty, and attorney's fees. The sole question for determination is whether the policy was in force at the time of the death of the insured. The appellant contends that the policy was in force and collectible because under the policy the payment of the first premium on November 6, 1919, the date the policy was delivered to the insured, held the policy in force until November 6, 1920, with a grace of 30 days allowed by the terms of the policy, making the final day of expiration on December 6, 1920. The contention is based upon the insistence that the policy should be construed, as against a plea of forfeiture of the insurance, as providing for each annual payment of premiums to date from the day of actual delivery of the policy rather than the date specified in the policy. It is true that the policy here in suit is conditioned to take effect on the payment "of the first premium or an agreed installment thereof." But the policy further specifies the date from which the premium period is to be computed, and makes that date the day on which the recurring premiums are due and payable. There is expressly stipulated in the policy the following:
"The annual premium of $49.70 payable on delivery hereof (i. e. the policy) and on the 3d day of October in each and every year at the company's home office until 10 full annual payments have been made, or until the prior death of the insured."
Having agreed, then, as the policy evidences, as to the date of the second and recurring premium payments, such agreed date of payment must control and be binding on the parties here, even though this fixed the date less than a year after the actual delivery of the policy. It is an express contract, effective between the parties in the absence of fraud or mistake. And neither do we think that the insurance contract contains inconsistent provisions. The provision that there was to be an "annual premium of $49.70" paid "until 10 full annual premiums have been made" is not at all inconsistent with the provision that one of the annual payments should be made on the delivery of the policy and the recurring premiums "on the 3d day of October in each year." The word "annual" means "yearly" or "once in a year." But the word "annual" does not signify what time in a year. The words "annual premiums," as used in the policy, then, has reference to the rate at which the premiums were to be computed, and not to the specific date of the year. Evidently the clause in the policy fixing the "3d day of October in each and every year" as the time of paying the second and recurring premiums was intended to make definite and particular the time in each year when the "annual" payments were to be made. If no date had been expressly specified in the policy for the payment of the second and recurring premiums, then the premium period would probably be computed from the date of the actual *847
delivery, instead of the date of the policy, upon the ground that the policy is conditioned to take effect on the payment of the first premium, and the second and recurring premiums are to be paid "annually." It is believed that the insurance had terminated by its terms at the time of the death of the insured. Methvin v. Life Ass'n,
The question here is annotated at length in 6 A. L. R, under case of Wilkinson v. Ins. Co., page 769.
Judgment affirmed.