214 P. 990 | Cal. Ct. App. | 1923
This is an action to recover $4,325 from the defendant upon a life insurance policy issued upon the life of one William Edgerton Wright. The policy conforms to the plan known to life insurance companies as an "income *489 protection policy," whereby in consideration of the payment of an annual premium for a period of years or until the death of the insured, an income of $25 per month for twenty years from and after the death of insured, with a provision for the payment to the insured of a life income of $25 per month beginning March 13, 1954, in case he then be living, and also a further provision for a life income for the insured in case of total disability. The policy provided for various options, one of which, the chief subject of dispute here, reads as follows:
"Options at the Death of the Insured. (Available during the insurance period as specified under provisions (1) and (h) on the reverse side hereof.)
"The insured, by written notice to the company, at its home office, . . . may elect that the net commuted value of the sums payable under this policy at the death of the insured (see general provisions, par. (h) on the reverse side hereof) shall be payable either in cash or as follows":
Paragraph (h), referred to above, fixes the commuted value of the policy at $4,325.
The real estate firm of which the insured was a member was first designated as the beneficiary, and thereafter plaintiffs were designated. The insured died July 3, 1921. Proofs of death were presented. Defendant acknowledged liability under the terms of the policy and issued its check to the beneficiaries for the first monthly payment. The beneficiaries returned the check, refused to accept the monthly payments and demanded cash payment of the net commuted value of the policy. The demand of plaintiffs being refused, this action followed. Plaintiffs' amended complaint alleges, among other things, the following:
"That on the fourth day of May, 1917, at said city and county, said William Edgerton Wright, by a written notice to defendant at its home office in said city and county, which said notice was deposited in the United States postoffice on said day in a sealed envelope addressed to defendant at its said office, and the postage thereon prepaid, stated to and notified defendant in writing that he elected that the net commuted value of the sums payable under said policy at his death should be payable in cash."
A general demurrer to the amended complaint was interposed. The trial court sustained the demurrer without *490 leave to amend, and judgment was entered against plaintiffs and in favor of defendant, from which judgment plaintiffs appeal.
The defendant, in support of the judgment, makes three points, as follows:
"1. That, even admitting the allegations of the complaint, the insured did not give notice either in the manner or form specified in the policy, of his election to change the terms of the policy;
"2. That the policy should have been presented for indorsement of the change;
"3. Or, in lieu of such indorsement, the insured should have obtained the written agreement or assent of the company, signed by the president or secretary."
[1] Defendant's first point is that it is nowhere pleaded in the complaint that the alleged notice of the insured's election to change the mode of payment was ever given to or received by the defendant; that plaintiffs merely pleaded mailing of a notice and depend upon the presumption of law that it was received.
Under our system courts are told to construe pleadings with liberality. (Code Civ. Proc., sec.
Defendant cites 20 R. C. L., section 5, page 344, to the effect that "where a contract requires notice, but does not specify the manner in which the notice is to be given, mere mailing of the notice is not sufficient unless it is received."Kavanaugh v. Security Trust Life Ins. Co.,
Summarized, defendant's remaining contentions amount to this:
[2] The conceded right of election given to the insured contemplates a change in the policy and is wholly ineffectual unless consented to or agreed to in writing by the insurer.
Plaintiffs argue, in reply, that as the right of election is expressly provided for by the terms of the policy itself, it is therefore unnecessary to secure the consent of the insurer in any form.
Defendant calls our attention to several instances wherein the policy gives to the insured absolute rights or options, and insists that the exercise of any one of these options involves a change in the policy and requires written request or notice and written consent or indorsement by the insurer. An examination of the policy shows that the provision converting the policy from a life policy to a disability policy provides that "the company will agree by indorsement in writing on thiscontract," etc. The provision relating to loans reads, in part, "the company will advance on the execution of a proper loanagreement and upon proper assignment and delivery of thispolicy," etc. The provision relating to "cash value" provides that "upon written request . . . and on surrender of thispolicy the company will," etc. And "change of beneficiary" may be made "by filing written notice thereof at the home office ofthe company, accompanied by the policy for suitable indorsementthereon," etc. The policy further provides that "no assignment hereof shall be binding upon the company unless made by aninstrument in writing indorsed upon this policy or attachedhereto," etc. There is also a general provision, upon which stress is laid by defendant, that "no agent can make, alter, or discharge this policy or extend the time for payment of premiums, nor can the policy be varied *492 or altered or its conditions waived or extended in any respect except by the written agreement of the company, signed by the president or secretary." On the back of the policy is printed "Options at death of insured," from which we have hereinbefore quoted and which forms the basis of plaintiffs' claim. There also appears on the reverse side of the policy the caption "Register of change of beneficiary," and thereunder the words "Note — No change, designation or declaration shall take effect until indorsed on this policy by the company at the home office."
We think it significant that in the several provisions from which we have quoted and italicized clauses, the policy makes explicit requirements for "indorsement in writing," "executionof proper agreement and proper assignment and delivery,""surrender of policy," etc. In each instance the language used is apt and free from ambiguity. If it had been the intention of the insurer that the option giving the right to prefer payment of the commuted value should be inoperative without consent or approval or agreement by indorsement or otherwise, it would have been a simple matter to have said so. In the absence of any such particular provision or requirement, and considering that a contract of insurance is to be interpreted by the same rules as are other contracts (Schroeder v. Imperial Ins. Co.,
The judgment appealed from is reversed, with directions to the trial court to overrule the defendant's demurrer and require it to answer.
Tyler, P. J., and Richards, J., concurred. *493
