123 Iowa 681 | Iowa | 1904
William J. Summitt, Avho lived at Carson, in this state, took out a policy of life insurance for $he sum of $2,000, in tbe defendant company, in January of tbe year-1893. He paid tbe first year’s premium of $30.54, and agreed to pay an annual premium of like amount on tbe 27th day of January in each and' every year during tbe continuance of tbe contract. These payments‘were to be made at tbe company’s offices in Neiv York City, and payment of the-insurance was also to be made at that place. Tbe policy Avas' to take effect upon the delivery thereof to tbe assured, but it Avas signed at tbe home office in New York City. Nothing is shown regarding tbe place of actual delivery, although defendant pleaded a forfeiture thereof, “pursuant to tbe statutes of the state of NeAv York.” During the trial tbe quoted part of this plea was withdrawn, and plaintiff thereupon-pleaded that tbe policy Avas governed by tbe laws of tbe state of New York, and set forth what purported to be tbe statutes of that state regarding forfeiture of life insurance policies. Defendant also pleaded failure on tbe part of tbe assured to pay any of the premiums called for by tbe contract of insurance, save tbe first one, and relied upon this provision of tbe
Something is said in argument with reference to the insufficiency- of the allegations of the petition, but, as that point does not seem to have been raised in the lower court, we give it no attention. Primarily, the case hinges on -the question as to whether or not the policy was a New York contract.
“Certificate.
“Office of the Secretary of the State of
New York.
“Albany, August 1, 1892.
“Pursuant to the directions of an act entitled ‘An act relative to the publication of the laws,’ passed April 12, 1843, I hereby certify that the following volume of the laws of this state was printed under my direction.
“Prank Bice, Secretary of State.”
Together with the following lines below, viz:
“In this volume every act which received the assent of the majority of all the members of the Legislature, three-fifths of all' the members elected to either House being present, pursuant to section 21 of article 3 of the Constitution of this state, is designated ‘passed, three-fifths being present.’ See Laws of 1847, chapter 253, as amended by Laws of 1888, chapter 4. And every act which received the assent of two-thirds of all the members elected to each branch of the Legislature, pursuant to section nine of article one of the Constitution of this state, under its title, by the words ‘passed by a two-thirds vote.’ See Laws of 1842, chapter 306, as amended by the laws of 1888, chapter 4.”
Appellant objected to these publications because they do not purport to have been published by authority of the state of New York, because not proved to have been published by authority of said state, and because not proved to ■ be commonly admitted as evidence of the laws of New York in the courts of that state. Section- 4651 of our Code reads as fol
“The notice shall also state that unless such premium, •interest installment, or portion thereof, then due shall be paid to the corporation, or to a duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereon will become 'forfeited and void except as to the right to a surrender value, or paid up policy as in this chapter provided.
“If the payment demanded by such notice shall be made within the time limited therefor, it shall be taken in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited or lapsed until the expiration of thirty days after the mailing of such notice.
“The affidavit of any officer, clerk or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given.”
On January 6, 1894, the defendant company, acting under this statute, mailed the assured the following notice: “B. 23121. Des M. William J. Summitt, Carson, Iowa. The United States Life Insurance Company. In the City
Conceding, arguendo, that the statute which we have quoted was in force when this notice was sent, appellant contends that it is insufficient in the following particulars: First. Because the person who sent it was not the corporation, nor an officer thereof, nor a person appointed by it to collect such premium. Second. Because of the condition in the notice, “if such policy be in force on that date.” Third. Because of this provision: “Unless such premium shall be paid to the company, or to the person authorized to- collect such premium holding the company’s receipt therefor, signed by the treasurer and secretary,” etc. Fourth. Because of the ten days of grace allowed. Fifth. Because the premium receipt was sent to one Spinney, the defendant’s agent at Des Moines, without notice to the insured thereof. Of these in their order.
The first point seems to be based upon a misconstruction of the statute. It says that postage must be paid by the corporation, or by an officer thereof, etc. But, if it read as contended by appellant, the notice was given by the secretary of the defendant, who was, of course, an officer thereof. The affidavit required was made by a clerk or agent, or one auth
The second point is wholly without merit. The statement made in the notice was for the protection of the company, and had no tendency to mislead or prejudice the rights of the assured. It was to save any question of waiver of prior defaults through the sending of the notice.
The statement as to where the premium might be paid, which is referred to in the third objection, was for the benefit of the assured. He could advantage himself of the provision, or not, as he saw fit. If he was not notified as to the name and address of the agent who held the premium receipt, this in no manner relieved him from the necessity of paying the premium at the home office, as provided in his policy and as suggested in the notice. If he was not advised as to.who held the premium receipt, his duty was clear.
.Every matter of which the assured was entitled to notice with reference to the payment of his premium, and of the consequences of his failure to do so, was set forth in the notice. The statement as to the ten days of grace could in no manner have misled or prejudiced the assured. At most, it amounted to a statement that if the premium was not paid within ten days after January 27, 1894, the time when it became due, the policy and all payments thereunder would become forfeited and void, except as to paid-up or surrender value. The ten days were allowed as a mere matter of grace and the insured could not have been misled, as in N. Y. L I. Co. v. Dingley, 93 Fed. Rep. 153 (35 C. C. A. 245) relied upon by the appellant.
The last point made by the appellant simply casts an additional burden upon the defendant, and that was to show that the person who held the premium receipt did not receive the premium from the assured. This burden was fully met by the defendant, for it showed that Spinney did not receive payment, and that the premium receipt sent him was returned to the defendant’s home office.
There is no pretense that the insured ever paid any of the premiums save the first one. Defendant has shown the giving of the requisite notice, under the New York law, and we think has sufficiently shown the nonpayment of the premium in response thereto. True, the evidence as to nonpayment is not absolutely conclusive, but, remembering that the fact of nonpayment is more difficult to prove than payment, we think it was sufficient, especially in view of the fact that there is no affirmative claim on behalf of the plaintiff that any premiums after the first one were paid.
Plaintiff is evidently relying on defendant’s inability to prove a forfeiture under the New York law, and, as defendant has shown substantial compliance with that law, and offered such prodf as was in its possession regarding nonpayment of premiums, we think it made out at least a prima facie case, and that a verdict for the plaintiff on such a showing could not have been sustained.
The trial court was therefore right in directing a verdict for defendant, and the judgment is affirmed. .