The appellee, Julia R. Jones, sued the appellant upon a policy of insurance issued by the appellant upon the life of Melvin L. Jones. A demurrer to the complaint for want of sufficient.facts was overruled, and a demurrer to the appellant’s answer was sustained. These rulings are presented for our consideration.
The complaint showed the issuing of the policy on the 17th of March, 1890, to said Melvin L. Jones, who then and thereafter, until his death, on the 2d of December, 1894, was the appellee’s husband. By the terms of the policy set forth in the complaint, in consideration of the statements of the application for the policy and of the present payment of the sum of $333.10 at the home office of the company, as thereinafter desсribed, and of the annual payment of $66.62, commencing on the 30th of December, 1894, and continuing thereafter during the term of ten years, and of the payment when due of any and all notes given for premiums or parts of same, the- appellant insured the life of said Melvin L. Jones in the sum $1,200.00 for fifteen years, ending December 30, 1904, the appellant agreeing to pay that sum to him at that date, or in the еvent of his death before that date, to the appellee.
The premiums for the first five years were in the policy acknowledged to have been paid by $66.62 cash, and four notes for $66.62 each, payable respectively on the 30th of December, 1890,1891,1892, and 1893.
It was alleged in the complaint that said Melvin L. Jones performed all the stipulations and conditions on his part contаined in said policy, and violated none
It was alleged that at the time of making the contract he borrowed from the aрpellant $1,200.00, and that he executed to the appellant, to evidence this loan, his promissory note for that sum, payable five years thereafter, and for the interest thereon six coupon notes, one for $66.04, four for $84.00 each, and one for $17.96, payable, respectively, on the 1st of January,’1891, 1892, 1893, 1894, 1895, and March 17, 1895, all of said notes providing for eight per cent, interest after maturity and attorney’s fees at the rate of five per cent.; that to secure said note of $1,200.00, and said six coupon interest notes, and said four premium notes of $66.62 each, said Melvin L. Jones and the appellee, on said 17th of March, 1890, executed to the appellant a mortgage on certain real estate described, in Delaware county, Indiana; that the mortgage prоvided that upon a failure to pay any of said coupon interest notes when due, the principal note for $1,200.00 should also, at the option of the appellant, become due and payable; that all of said notes, including said premium notes, were executed by the appellee as well as by said Melvin L. Jones, and were payable at a bank named in this State, and wаived relief from
The complaint shows in detail the sale of said real estate on the 27th of July, 1895, by the sheriff, under said judgment, to the plaintiff for the full amount of the judgment and interest and costs, and the issuing to the appellant of the sheriff’s certificate of such sale, which the appellant still held; and it was alleged that the appellant at the same time received from the sheriff in full satisfaction of said judgment a sum stated, being the full amount due and unpaid on said judgment, including six per cent, interest from its rendition, and the appellant executed to the sheriff its receipt for said sum in full, satisfaction of said judgment, and the sheriff made his return, etc. It was alleged that by said purchase said judgment and said two unpaid premium notes were wholly paid and satisfied; that by the taking of said judgment and said purchase of said real estаte and the satisfaction of said judgment, the appellant waived the forfeiture of said policy because of said failure to pay said two premium notes.
The complaint contains much other matter which need not be set forth to illustrate the question in dispute on appeal.
In the policy set out in the complaint is the following provision relating to said four premium notеs: “Failure to pay any one of said notes at maturity will give the company the right, at its election, to avoid this policy, with all its provisions, and the note or
Upon the back of the policy were certain conditions which were referred to in the policy as part thereof. In the first clause of these conditions it was provided, that “all premiums, or notes, or intеrest upon notes, given the company for premiums, shall be paid on or before the days upon which they become due, at the company’s office in the city of Cincinnati, or to the authorized agent of the company, he producing a receipt therefor signed by the president, vice president or secretary.”
In the sixth clause it was provided, that “upon the violatiоn of any of the foregoing conditions, this policy shall be null and void, without action on the part of the company or notice to the insured or beneficiary, and all payments made thereon, and all accrued surplus of profits shall be forfeited to the company,” etc.
The answer alleged, in substance, that on the 30th of December, 1892, said policy by its terms set out in condition No. 1, became null and void, by reason of the failure to pay the premium note due on that date; that said premium notes due on December 30,1892 and 1893, both contained a condition as follows: “If this note, or any installment of interest, be not paid at maturity, said policy, with all conditions for surrender or continuance as a paid-up term policy, shall, at the option of said compаny, without notice to any interested party, be null and void, and said premium and accrued interest shall, without rebate or discount and without reviving said policy or any of its provisions,
We may consider together the questions presented by both the complaint and the answer, assuming without deciding, that the condition quoted in the answer as part of each of the premium notes may be thus pleaded without setting forth the notes themselves or copies thereof.
Forfeitures are not favored by the courts. They will not declare them except in very clear cases. The conditions of the contract .upon which it is sought to base a forfeiture must be strictly complied with by the insurance company. Such conditions will be construed most strongly against the company, аnd a forfeiture will not be enforced unless its enforcement is clearly demanded by the established rules for the construction of written contracts.
In Masonic, etc., Assn. v. Beck,
In American Ins. Co. v. Henley,
In Continental Ins. Co. v. Chew,
In discussing a clause in a policy which provided for the suspensiоn of the insurance upon failure to pay a premium note at maturity, the court said, that “This case differs widely from one in which the failure to pay at maturity works an absolute forfeiture of the policy. There the acceptance of the premium after forfeiture is inconsistent with the terms of the policy, and therefore it is properly held that such acceptance is a waiver of the forfeiture.” Curtin v. Phenix Ins. Co., 78 Cal. 619,
In Union Cent. Life Ins Co. v. Woods,
Counsel for appellant suppose the question of forfeiture to have been passed upon without much deliberation in Union Cent. Life Ins. Co. v. Woods, supra. In the view which we take of the case at bar, it does not require that we should decide whether the court, in the case last mentioned, in the language employed, relating to a policy which providеs that the. premium collected by suit shall be considered as premium earned, states the rule too broadly.
Where the language of the policy is susceptible of two interpretations, the one giving greater indemnity and sustaining the claim will be adopted by the court. Union Cent. Life Ins. Co. v. Woods, supra.
Where a policy contains inconsistent provisions, that which is most favorable to the assured will be adopted. Northwestern, etc., Ins. Co. v. Hazelett,
In the case last cited, in one clause of the printed conditions of the policy, intemperance to the degree of
In the case at bar, the policy and the premium notes constituted parts of one contract. The various conditions relating to non-payment of the notes were not consistent with each other. The condition most favorable to the insured was that upon the face of the policy, which gave the company the right, at its election, upon failure to pay a note at maturity, to avoid the policy, and which provided that when it should exercise the election to cаncel the policy the note or notes then past due should be payable as premium up to date of cancellation on the books of the company, while the remaining notes, if any, should thereupon be surrendered to the maker, on surrender of the policy.
The appellant was bound strictly by this condition. It could not avoid the policy because of the non-pаyment of any note or notes at maturity, except by pursuing the method thus provided by itself in th,e policy.
In order to defeat an action upon a policy of insurance on the ground that the policy has been canceled, it must be shown either that the conditions upon which the company was allowed to cancel the policy were strictly complied with, or that the assured, knowing all the facts, waived such compliance. Quong Tue Sing v. Anglo-Nevada Assur. Corp.,
The answer says that upon maturity of the note due December 30, 1892, the company canceled thе policy upon its books, and that in January, 1894, it notified the assured that said policy had been canceled and declared void.
Giving the provisions of the contract full effect, the company would not have the right, after cancellation of the policy at maturity of the third note, to collect any unpaid premium except that represented by the third note. If by such cancellation the policy became forfeited and thenceforward null, of course the company would not have the right to collect the fourth note, Avhich was then not due.
There was but one way in which the policy could be forfeited for non-payment of any note. To do so, it was necessary for the company to exercise its election to cancel the рolicy. The policy never was forfeited in the manner prescribed for non-payment of any note except the third.
After pursuing the ex parte method of cancellation for non-payment of the third note, as shown by the answer, the company, without taking any like measures with reference to the fourth note, enforced the full payment of both the third and fourth notes, as shown by the complaint. It treated its оwn action with reference to the third note as ineffectual for the cancellation or annulment of the policy.
It had no right, by the terms of the contract, to collect the fourth note, unless there was an exercise of the right to elect to cancel the policy after the maturity of that note.
By enforcing collection, as it did through its fore
We are unable to find error in the rulings on the demurrers. The judgment is affirmed.