290 Mass. 254 | Mass. | 1935
This suit is brought to secure a decree to the effect that a policy of accident and health indemnity insurance issued to the plaintiff was reinstated after a lapse and is in full force and effect. The trial judge found that every allegation of fact in the petition was sustained. The evidence, which is reported in full, sustains these findings. Ecklund v. Ecklund, 288 Mass. 517. A final decree was entered declaring that the policy was reinstated and that upon payment of a specified sum forthwith and future premiums in accordance with its terms it should be and remain in full force and effect. The appeal of the defendant brings the case here.
The pertinent facts are these: A policy of insurance was issued to the plaintiff by a company since merged with the defendant, which assumed all the obligations of insurer under the policy. The plaintiff met all conditions of the policy and paid all premiums when due until he defaulted on a quarterly payment due on June 1, 1933. On June 6,
The defendant has not argued that there is any material difference between clause 3 in the standard provisions of the policy and the requirement of said § 108 (f) 5 of the statute. It concedes that they are substantially equivalent. It is to be presumed that the policy conforms to the statute. New York Life Ins. Co. v. Hardison, 199 Mass. 190, 194-195. In any event, the terms of the policy must be read and construed in the light of the statute. Mulcahy v. Travelers Ins. Co. 261 Mass. 245, 248. The crucial point for decision is whether the acceptance by Mathaurs of the overdue premium reinstated the policy, or whether the plaintiff was bound by the attempted withdrawal by the defendant, by its premium notice, of authority from all its agents to accept overdue premiums. The words of the statute provide four ways for the reinstatement of a policy lapsed by failure to pay the premium when due, viz.: Acceptance of a past due premium (1) by the company, (2) by a branch office, (3) by a duly authorized agent of the company in the town or county where the insured resides, and (4) by the duly authorized agent of the company who accepted the last premium on the policy if so authorized at the time of the acceptance of the past due premium. The precise inquiry is as to the meaning of the words “acceptance” “by a duly authorized agent.” Does this phrase signify accept
The terms of the premium notice sent by the defendant and not assented to by the plaintiff could not adversely affect the rights of the plaintiff in this particular. Picard v. Beers, 195 Mass. 419, 427-428. Lalime & Partridge, Inc. v. Hobbs, 255 Mass. 189, 192.
There was ample evidence to show that the check of the plaintiff was accepted by Mathaurs in payment of the overdue premium. It was received by him and deposited to the credit of the defendant in its bank. It was duly collected and the proceeds were held by the defendant for almost two weeks. Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 54. Wasilauskas v. Brookline Savings Bank, 259 Mass. 215, 218-219.
Rightly, it has not been argued by the defendant that its return of the premium to the plaintiff after its acceptance
Decree affirmed with costs.