137 Iowa 184 | Iowa | 1908
This is a suit to recover $2,000 upon a twenty-year payment, twenty-year settlement plan policy, issued upon the life of Lulu Wilson; her husband, Warren II. Wilson, the plaintiff herein, being the beneficiary named in said policy. The defendant denied liability on the ground that the policy had lapsed and was not in force at the time of the death of the insured.
The policy was issued' on the 16th day of May, 1894, and provided for the payment of a yearly premium of $52.20 which was payable “ at or before 12 o’clock noon on the 16th day of May in every year, until twenty full years premiums had been paid.” The policy further provided that after two full annual premiums had been paid the policy should be incontestable and become nonforfeitable in amounts as indorsed thereon, provided the policy was presented at the office of the company properly receipted, conditioned (1) for its cash surrender value within three months, and (2) for its paid-up value within six months from the date of the first unpaid premium. The premiums provided for in the policy were all paid up to and including that due for 1902. The premium due May 16, 1903, was not paid, and Mrs. Wilson died on the 13th day of February, 1904. The policy itself did not contain a forfeiture clause for the nonpayment of premiums; but on the 2d of June, 1899, Lulu and Warren H. Wilson gave their note to the-insurance company for money borrowed on the policy in suit, and said note contained the following stipulation:
This note is secured by a lien on policy No. 1842 issued on the life of Lulu Wilson by the Royal Union Mutual Life Insurance Company, Des Moines, Iowa, for $2,000, at age twenty-one, and dated May 16, 1894, on plan twenty payment life, with a premium of $52.20 payable annually, and falling due May 16th, and it is agreed that if default is made in the payment of any premium upon said policy or in the payment hereof, either principal or interest, then this note shall become payable at once, and in that event we hereby elect to take the cash surrender value of said policy at the date of*187 such default, and we hereby empower said insurance company to cancel the said policy upon its boohs, and, after taking out all sums due upon said note, and said policy, to hold the balance, if any, to our credit, without interest, to be paid to us upon surrender of said policy, duly receipted, at the home office of said company at Des Moines.
All insurance companies or associations shall, upon the issue or renewal of any policy, attach to such policy, or indorse thereon, a true copy of any application or representation of the assured which, by the terms of such policy, are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such policy. The omission so to do. shall not render the policy invalid, but if any company or association neglects to comply with the requirements of this section it shall forever be precluded from pleading, alleging or proving any such application or representations, or any part thereof, or falsity thereof, or any parts thereof, in any action upon such policy, and the plaintiff in any such action shall not be required, in order to recover against such company or association, either to plead or prove such application or representation, but may do so at his option.
And again, in all instances up to 1903 notices of the maturity of the premium were sent and by the insured received, expressly notifying her that the acceptance of any premium after it became due was subject to the condition, and upon the express warranty on her part, that she was in good health, and was not to be construed as a waiver of the conditions of the policy as to future payments, nor as establishing a course of dealing between the company and her. In the face of all these facts, the plaintiff is certainly in no position to assert that the appellee’s conduct misled the policy holder. “ To constitute a waiver, there must be some affirmative act on the part of the insurer, and it must be conduct which induces the insured to rest on the well-founded belief that a strict performance of a condition will not be insisted upon.” Bundell v. Insurance Co., 128 Iowa, 577. As we read the
The plaintiff also held a policy of insurance issued on his life, and he was permitted to show that he had always acted as the agent of his wife in matters relating to the policy issued to her, and, further, his dealing with the conqpany concerning his own policy. This was admitted for the purpose of showing a waiver, as we understand the record. But all of the premium and interest payments due on his policy and on his policy loan note which were accepted by the company after due and after the policy might have been lapsed were received prior to the January, 1901, settlement and reinstatement to which we have already referred. In fact Wilson’s own policy was lapsed for the non-payment of premiums and interest on his loan note, and he was required to take a medical examination for reinstatement at the same time his wife did, and his policy was reinstated with the other.
The judgment is right, and it is affirmed.