17 A.2d 696 | Pa. Super. Ct. | 1940
Lead Opinion
Argued October 11, 1940. This is an action brought by a beneficiary in an industrial life insurance policy to recover the face of the policy on the death of the insured. The cause was tried before a judge in the Municipal Court of Philadelphia without a jury and resulted in a judgment for plaintiff after refusal of defendant's motions for judgment n.o.v. and for a new trial. The defendant's appeal must be sustained.
The sole question raised by the pleadings and proofs *133 is whether the policy was in force on August 11, 1939, when the insured died. The plaintiff produced a receipt book which showed that at that time the weekly payments of premium due under the policy were more than four weeks in arrears. Plaintiff, however, contends that defendant by its conduct waived strict compliance with the terms of the policy. If it did the judgment should stand.
The policy, dated November 1, 1937, provided for weekly payments of premiums and contained a condition, printed in the margin,1 dealing with the subject of delay in making such payments. After the policy was issued the premiums were paid regularly, either three or four days before or after they were due, until April, 1939, when payments began to lag. On June 26, 1939, the payments for premiums for the first time became delinquent for more than three weeks. Thereafter six payments were made, the last payment being made on August 5, 1939, for premium due July 10, 1939, leaving the payments then more than three weeks in arrears.
What was the effect of the defendant's receiving payments after the alleged forfeiture at the close of business on June 26, 1939? It is important to observe that *134 the defendant has insisted that the policy lapsed on that day. Defendant called two of its collectors, one of whom was not in its employ at the time of trial, and they each testified that on receiving the delinquent payments, due more than three weeks, they advised the beneficiary, who paid the premiums, that the policy was "out of benefits." This was denied by plaintiff, and her denial must be accepted in view of the trial judge's finding.
Although the theory of plaintiff's case is not entirely clear she has not seriously attempted to show a reinstatement but rather depended on the contention that the policy had never lapsed because defendant, by its course of conduct, had waived its right to rely on an automatic forfeiture. If all of the premiums due at the time had been paid before the death of the insured and circumstances had been present from which a waiver of the requirement of good health could have been inferred, retention of such premium payments for an unreasonable time might have been found to constitute a reinstatement: Malchinsky v.Mutual Life Ins. Co.,
We are satisfied that the acceptance of the overdue premiums under the circumstances present here was not sufficient to constitute a waiver of automatic forfeiture. By the plain terms of the policy it lapsed at the close of business on June 26, 1939. After that date the provision for death benefits became inoperative. *135
In the absence of some special circumstances, such provisions are universally upheld: Geha v. Baltimore Life Ins. Co.,
The case of Poles v. State Mutual Benefit Society,
Judgment reversed and it is directed that judgment now be entered in favor of the defendant.
Addendum
The foregoing opinion was prepared by Judge PARKER before his accession to the Supreme Court. It is now adopted and filed as the opinion of the court.