123 Cal. 677 | Cal. | 1899
Plaintiff, Laura M. Straube, insured the life of her husband for her benefit in the sum of ten thousand dollars, under a contract of insurance known as the ordinary life dividend insurance policy. The premiums upon this policy were paid for several years, when a failure to pay the annual premium occurred. Some time thereafter the plaintiff surrend
The single question presented is, Does the complaint state a cause of action? As to the special grounds of demurrer, we pass them as involving questions of no great importance to the disposition of the appeal. It appears to be conceded that the question before the court is, Was this policy of insurance of substantial value to the plaintiff at the time the defendant company obtained it from her? It is insisted that the complaint shows the policy to have been of substantial pecuniary value at that time, and four specified grounds are relied upon to support this proposition. We pass to the consideration of these grounds of contention.
1. The policy of insurance provides: “This policy shall become forfeited and void if the premiums shall not be paid within thirty days of the time they become due, at the office of the company in the city of San Francisco, or to other duly authorized agents, when they produce receipts signed by the president, vice-president, secretary, or assistant secretary.” It is now contended that the policy remained in force because the agent did not produce the “receipt” mentioned by this provision of the contract, it being claimed that the proper construction of the policy did not demand that the premium should be paid until such event had taken place. In other words, it is claimed, the production of this receipt was a condition precedent to the payment of the premium. The language of the policy bears no such construction. ÍTo demand for the payment of the premium is nominated in the bond. It is provided that the policy shall be forfeited if the premium is not paid within thirty days after it is due, and the contract then declares that it may be paid either at the office of the company in the city of San Francisco, or to the authorized agent when he has pro
2. It is next contended that plaintiff was entitled to a paid-up policy, and this contention is based upon the following covenant in the contract: “The assured, if premiums on this policy have been duly received by said company for not less than three years, shall be entitled to a paid-up policy, without profits, for the same amount as is allowed by the rules of the company on the surrender of corresponding ordinary policy; provided always, that surrender of the policy, duly receipted by the assured, be made to the company at San Francisco, California, while this policy is by its terms in full force and effect.” It is provided in this policy, and seems to be conceded by appellant's counsel, that tire application for the paid-up policy must be made while the policy is in force. Under these conditions the question presented under this head seems to be immaterial. For if the policy were in force when the company obtained it from plaintiff, then it was of substantial value by the mere fact of its vitality; and even if it be conceded that the right to take out a paid-up policy was present at that time, still it adds no weight to appellant’s position, for, as already suggested, this right is dependent upon a policy in force and effect at the time the application is made. In other words, the right to a paid-up policy is dependent upon an original policy, of present substantial value, and that fact is all that appellant needs to support the sufficiency of her complaint.
3. It is next contended that the policy was in full force and effect by virtue of section 450 of the Civil Code. That part of the section material here is as follows: “Every contract or policy of insurance hereafter made by any person or corporation organized under the laws of this state; or under those of any other state or country, with and upon the life of a resident of this state, and delivered within this state, shall contain, unless specifically contracted between the insurer and the insured for tontine insurance, or for other term or paid-up insurance, a stipulation that when after three full annual premiums shall have been paid on such policy, it shall cease or be
It is contended by the appellant that the stipulation should be read into the policy as matter of law. This position is denied, and it is insisted that the penalty fixed by the section itself is exclusive, and a remedy for the violation of the law rests with the state alone. The court is well assured that this statute is no part of the contract. If the statute had contained a flat declaration that no policy of insurance should be forfeitable after three annual premiums had been paid upon it, or a declaration of any such general import, we should then have something which would become a part of the contract. In such an enactment there would be a declaration fixing the rights of all subsequent" contracting parties. But there is no such attempt here. The legislature has not said there shall be no forfeitable contract of insurance made in this state, but in effect has said, if you issue such a policy you are liable to certain penalties for your act. Whether that penalty be a forfeiture of the right to do business, or a fine simply, in no way
4. There is no merit in appellant’s final contention to the effect that the accumulated dividends should have been applied to the payment of premiums upon the policy.
For the foregoing reasons the judgment is affirmed.
Harrison, J., and Van Dyke, J., concurred.
Hearing in Bank denied.