55 So. 200 | Ala. | 1911
This action is by the appellant against the appellee on an insurance policy on the life of plaintiff’s husband in her favor. The policy is in evidence, dated January 9, 1905, and it is admitted that Henry Satterfield (the insured) died on January 3, 1906. The defense set up is that the initial premium on said policy has never been paid, and that on that account the policy is null and void.
The evidence offered by the defendant is not controverted by any evidence offered by the plaintiff, to wit, that at the time of the delivery of the policy no money was paid, but the plaintiff executed and delivered three promissory notes for the initial premium, due respectively, on the 1st days of February, March, and May, 1905; that repeated demands were made for the payment of said notes, but no payment has been made on the same; that the plaintiff was notified that, according to the terms of the policy, the receipt which was given for the initial premium, and the terms of said notes, said policy was ipso facto null and void, and could be revived only on certain terms named, which has never been done.
It will be noticed that the policy does not acknowledge the payment of the initial premium, and that the precedent conditions state distinctly that the contract shall not be operative or binding until the actual payment of the same; that the same provision is made in the application, which is made a part of the policy and attached to it,' and that the receipt (Avhich was given on a separate paper), together with the indorsement, which is made a part of the receipt states, that the amount must be actually paid, otherwise the receipt is void, and also states that an “obligation given in exchange for this receipt, when dishonored or not paid' at maturity, shall render this receipt and said policy absolutely Amid.” While the taking of the notes doubtless Avaived the actual payment until the maturity of the notes, yet it is evidently competent to show by parol that said notes were not paid at maturity, in Avhich event the policy became, according to the contract, absolutely void, 17 Cyc. 656 et seq., and notes; Pitt, Adm'x, v. Berkshire Life Ins. Co., 100 Mass. 500, 503, 504. The wording of this policy differs from that referred to in the case of McAllister v. New England Mutual Life Insurance Company, 101 Mass. 558, 3 Am. Rep. 404, in which it was held that the statement in regard to the payment of premiums “when due” referred to subsequent premiums, and not to the initial premium,
In the policy now under consideration, the policy and the papers attached, which are made a part of it, do not show that the initial premium ivas paid, but, on the contrary, show that the policy was not to become effectual until it was actually paid, and the receipt is conditional, showing distinctly that it only postponed the actual payment until the maturity of the note. Our decision in the case of Manhattan Life Insurance Company v. Verneuille, 156 Ala. 592, 47 South. 72, is pased upon the fact that the application therein referred to was merely referred to and not attached to the policy, which brought it within the purpose of the statute. In the policy now under consideration, the policy states that the application “is made a part hereof, a copy of which is hereto attached,” and the evidence shows that said application was,- in fact, attached to the policy, and became a part of the policy, as fully as if embodied in it, and its terms were thus plainly expressed in the face of the policy. The policy and the application with the precedent conditions formed only one contract. Sewall v. Henry, 9 Ala. 24, 30; Doe ex dem. Holman et al. v. Crane et al., 16 Ala. 577; Strong’s Ex’rs v. Brewer, 17 Ala. 706, 712; Rives, Adm’r v. Toulmin, 19 Ala. 288, 294. If the two constituted but one contract, then it necessarily follows that whatever appears upon either is a part of the policy of insurance, and the spirit and purpose of the statute, as well as its letter, is complied with by attaching the two together on the same paper so that all the provisions of the contract are before the eyes of the insured. In addition, whatever may have been the effect of the policy at first, it was competent for the parties to agree that it should become void on failure to pay the note, which they did in the receipt. When the case now on hearing
It results that the defendant was entitled to the general affirmative charge given, and it is unnecessary to. consider in detail the points raised on pleadings, etc.
The judgment of the court is affirmed.
Affirmed.