| Ky. Ct. App. | Oct 5, 1917
Opinion of the Court by
Affirming.
On September 30, 1914, tbe Commonwealth Life; Insurance Company issued to Joseph M. Wilkinson, a policy insuring his life in favor of his wife, Bessie W. Wilkinson, in the sum of $5,000.00. Her husband died'-'bn December 10, 1915, arid she brought this spit against trie
The facts are as follows: The written application for the policy was dated September 15, 1914. The insured was examined September 19, 1914, but the report thereof was not forwarded to the company .until several • days later. The application was accepted and the policy issued and dated on September 30, 1914. The policy was then sent to the soliciting' agent' at New Hope, in Nelson county, for the purpose of delivery to the insured, who lived at Bloomfield, in the same county. Before the policy reached the soliciting agent, he was adjudged of unsound mind and sent to the state hospital, and in a short time the policy was returned by the Postoffice Department to the home office of the company at Louisville. The policy was then sent with other policies in care of a special agent, for delivery. While at Bloomfield on October 15th, for the purpose of delivering this policy, the special agent met G. R. Elder, who informed him that he had assisted the soliciting agent in securing the policy, and that the policy should ho turned over to him for delivery. The special agent then delivered the policy to Elder, who gave him a check for the premium, less the agent’s commission, with the understanding that he would see the insured on Saturday, October 17th, and if he refused to accept the policy, the check which Elder gave was to be returned. On Saturday, October 17th, Elder gave the policy to Wilkinson, who examined it and deposited it in a box at the Citizens Bank, where it remained until his death. On Monday, October 25, 1915, the insured was taken ill and was carried to the Jewish Hospital in Louisville, where an operation was performed upon him. His wife accompanied him to the hospital, but found it necessary to return to her home on November 6, 1915. On examining her husband’s papers on Tuesday, November 9th, she found the formal notice from the company of the maturity of the second premium on the policy. She called up the local agent, G. R. Elder, and asked his advice. Elder agreed to meet her at the hospital on November 10th, where, she gave him a letter, with a check to the insurance company and requested him to mail it for her, which he did on his return to Bloomfield that night.
The application which was signed by Joseph M. Wilkinson, contained the following provision-.
“I.1 also declare that it is understood on behalf of myself and any beneficiary under any policy issued by Vac said Company, on my life upon this application, that the Company shall not be liable until the application has been, received, approved, the policy issued thereon by the Company and delivered to me and premium paid during my good health.”
The application called for a-twenty-year term policy and provided that the premium of $78.65, should be paid annually. The policy issued pursuant to the application, is what is commonly called a convertible twenty-year term policy. On the face of the policy is the following provision:
It is further stated in the face of the policy “that the benefits and provisions stated on the- second page thereof form a part of this contract as fully as if recited at length over the signature hereto affixed. ’ ’
Under the head of “Benefits and Provisions” is the following:
“Should this policy lapse by non-payment of premium, it may be reinstated at any time upon satisfactory evidence of insurability and the payment of past due premium with five per cent, interest thereon, and should the Company require it, any other indebtedness of the insured to the Company.”
With reference to “grace” in the payment of premiums, we find the following:
“In case of default in the payment of any premium when due, this policy will be continued in force for the full amount for one month, subject to a charge for interest at the rate of five per cent, per annum, and payment of premium may be made during that time without ovi«Ance of insurability.”
Under the head cvf “Payment of Premiums” is the following provision:
“The first premium must be paid during the lifetime and good health of the insured and upon delivery of this policy. All premiums are due and payable .annually in advance, but they may be paid in semi-annual' ¿>r quarterly installments, at the Homo Office of the Company in. the City of Louisville, Ky., or they may be paid else>- - where to authorized agents on or before the DATES WHEN DUE, in exchange for receipts signed by the President, Yice President, Secretary or Treasurer, and countersigned by such agent.' If any premium, or note given therefor, be not paid when due, this policy shall beqdihe null- and void. ’ ’
“:"It will be qbserved that the check for the second-premium was sent,-to the company on November 10,1915. lirtliat prómiúnrwas due September - 30, 1915, then-the pa^iñent was mot within the one month’s-grace'provided ■ by the policy. On the other hand, if the second premium
After setting out .the foregoing provisions of the application, and certain provisions of the policy, the petition alleges, in substance, that among other things in the application, it was provided that should any contract or policy issue thereon, it should not become effective until the payment of the first premium and the delivery of the policy to the insured while he was in good health, and thereupon the policy became effective and the subsequent premiums were payable annually in advance, at the beginning of e^ch year of insurance, or within one month thereafter, with 5 per cent, annual interest thereon from the time when due. It is further alleged that at the time of the delivery of the policy and the payment of the first annual premium on October 17, 1914, “either by the fraud of the defendant or by the mistake of said insured and the defendant, said policy of insurance was erroneously dated as being issued, signed and delivered on the 30th day of September, 1914, whereas in fact said policy was not delivered and the first annual premium paid thereon until October 17,1914, and the correct and true date when, each of 'said annual premiums .became due and payable was October 17 of each year and not September 30 each year, as erroneously stated in said policy and by the terms of said contract the insured had only one month after the 17th of each October in each year for the payment of said annual premium of $78.65 with 5% interest thereon from the time when due.”
There was no direct evidence of actual fraud or mutual mistake on the part of the parties, but it is insisted for the appellant, that where the application for a term' policy stipulated that the liability of the company shall not begin until the policy is delivered and paid for during the good health of the insured, it is such character of constructive fraud or inequitable conduct or. gross mistake,'for the company to ante-date such policy by seven-, teen days before delivery, and thus make the .subsequent annual 'premiums payable' seventeen days eárlier each, .year, as will authorize a court of equity, after loss-tó re-: form such policy, both as to.,’the date thereof.-.and .the-erroneous date specified for payment of .subsequent ahí; tínal premiums,: and . then enforce payment of the'policy's
Nor does the case fall within the rule announced in the case of Cecil v. Kentucky Livestock Insurance Co., 165 Ky. 211" court="Ky. Ct. App." date_filed="1915-06-03" href="https://app.midpage.ai/document/cecil-v-kentucky-livestock-insurance-7142647?utm_source=webapp" opinion_id="7142647">165 Ky. 211. There Cecil applied for insurance on a stallion named Great "Ward. The application was signed on March 26, 1913. It reached the company on March 29. The policy was issued on the 29th, but it was antedated to March 26th, the date of the application. It was delivered to Cecil on April 1st and the premium was then paid. On March 27, 1914, the stallion died. The company having denied that the policy was in force when the stallion died, Cecil brought suit to recover on the policy. The petition alleged that Cecil made application to the defendant to insure him against loss by the death of his horse, for a period of one year; that it was agreed between the parties that the application was to become a part of the contract of insurance in the event the application was accepted; that the contract of insurance should not be in force until the policy should be delivered to Cecil and the premium paid for one year’s insurance during the life and good health of “Great
It is clear from tlie proof in this case, that the policy was not ante-dated at all. In accordance with the common practice of insurance companies, it was dated the day it was issued, and subsequent annual premiums were made payable on the same day in the succeeding years. Ordinarily, only a few days elapse betw'een the date a policy is issued and the date it is delivered. In this case the delay in the delivery of the policy grew out of the fact that the soliciting agent to whom it was sent became insane, and was not due to any fault on the part of the company. When the policy was delivered, no representation was made to the insured that would tend in the least to mislead him as to- the time the subsequent premiums would become due. The policy provided that they should become due on September 30th in each year. Whether the insured observed this fact or not, we cannot say. He did examine' the policy and accept it as the contract between him and the company. Even if there then existed any substantial reason why he should not have ascertained the date of payment of subsequent pre
Judgment, affirmed.