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(145 N.E.) of the preceding regular assessments Nos., assured which the courts have refused in nu586, 587, and 588, with notice that they merous cases to countenance.” must be paid on or before March 2, March 16, and March 30. There was no proof that in support of the above statement. One of

Many authorities are cited by the author any of these assessments was or was not an extra assessment, but it had been the fixed the authorities cited being Franklin Life Ins. custom of the committee for many years to Co. v. Sefton, 53 Ind. 380, where the plaingive the dates when the regular assessments tiff, over the objection of the defendant, was had to be paid to prevent forfeiture. That permitted to prove that it was the custom of suit was commenced in June, 1907, and the defendant to receive payment of premiappellee continued to pay all dues and assess

ums after they were due. This was held er. ments up to an assessment of $7.44 that fell ror, the court saying: due April 13, 1908, which he did not pay, “The custom or usage of the company could but of which he testified no notice had been not be set up to control the terms of the given him. The trial of the cause began contract between the parties." April 14, 1908, and on the morning of that day appellee tendered the amount of the as- that the act of the agent in accepting pay

The trial court bad instructed the jury sessment to the collector, which was fused. He then brought it into court for ment of a premium "after the day it was the use of the association. Without any evi- due, in the absence of fraud, would bind the dence as to whether the assessment in ques. by the company.” The policy provided that

company without any subsequent ratification tion was a regular assessment, other than agents had authority to receive premiums the fact that it was payable on the second when due, but that they had no authority in Monday of the month, the court said:

any case to make, alter, or discharge con“But as forfeitures are not favored, appel- tracts. It was held the agent had no authorlant's custom of giving notice of the time reg. ity to accept the premium after it became ular assessments are due was a waiver of due, and that the instruction was erroneous. the right of forfeiture for nonpayment, without

The cause was reversed because of said erthe giving of such notice. Where notice of an

This case, as we read and understand assessment is required by the by-laws of the society to be given, there can be no forfeiture it, is not in point and does not support the on that ground, unless the notice is given. proposition laid down by the author. This

Nor should a forfeiture be permitted fact led us to carefully examine the cases where during a long term of years—here the j cited by Mr. Joyce in support of the text. full term of membership—it has been the uni In Grant v. Alabama Gold Life Ins. Co., 76 form custom of the society to give notice. Its Ga. 575, the court, adhering “to the spirit of own acts should estop it.

There are a the Georgia Code,' held that an insurance few cases involving annual premiums, where it had been customary to give notice, and the company might be estopped from declaring a failure to do so has been held not to waive policy forfeited by failure to give a customthe forfeiture.

In case of monthly assess- ary notice, saying: ments it is, of course, only a difference in de

Yet the insured must act with reagree, but where a uniform custom has been so sonable diligence, and six months' delay to long and unbrokenly followed, as here, covering pay a premium for want of notice appears to the entire period of membership of over 20 us so unreasonable as to show a purpose to years, and where, without notice, there is a abandon the policy and let it lapse; and if a prompt offer to pay, it is a more just rule jury should decide that such was reasonable, to deny forfeiture upon the ground of waiver.” | the court should not permit the verdict to

stand. Two or three months in a policy of Appellee also cites Joyce on Insurance (20 annual premiums, a month or six weeks in Ed.) § 1332, where the author says:

semiannual premiums, time enough for one

who has his life insured, though notice does not If a life insurance company has been in the come to him from the company according to practice of notifying the insured of the time usage, to bestir himself to ascertain why the when the premiums will fall due, and of the notice has not come, and not to do so within amount, and the custom has been so uniform such reasonable time, without some overpow. and so reasonably long in continuance as to ering providential cause, ought to conclude induce the insured to believe that a clause for him.” forfeiture for nonpayment will not be insisted on, but that notice will precede the insistence In Brooklyn Life Ins. Co. v. Bledsoe, 52 upon the forfeiture, and the insured is in con- Ala. 538, the agent who delivered the policy sequence put off his guard, such notice must collected the first premium and died without be given, and, if not given, no advantage can making a report to the company. A few be taken of such default in payment which it weeks before the second annual premium behas thus encouraged, for the insured is en titled to expect the customary notification; came due the insured wrote the company askand to mislead the insured by not giving such ing an extension of time and offering to give notice, and then insist upon a strict compliance his note with interest. He was then informwith the conditions of forfeiture, constitutes, ed that the policy stood on the books of the under such circumstances, a fraud upon the company as having been canceled because of

nonpayment of the first premium. About 10, right to show what had been the uniform months later the insured died without paying custom in regard to the payment of the preor offering to pay the second premium. The miums and that “no right of forfeiture could cancellation of the policy was held errone- arise from a default procured by such disous and without right, but the cause was re- reputable strategy." versed on the ground that the evidence did In Southern Life Ins. Co. v. McCain, 96 not show any act on the part of the insur-U. S. 84, 24 L. Ed. 653, the premium was ance company preventing performance on the paid to one who had theretofore been an agent part of the insured, and that the nonpay- of the company and to whom premiums had ment was without excuse, the court saying: been paid. The question related to the effect

"It is an elementary principle, that the per- of a payment made to the former agent by formance of conditions precedent may be waiv. a policy holder who had not been advised of ed, or if the party, whose responsibility is to the change of agency, and the failure of the arise on their performance, by any act of his company after being informed by the former prevents performance, the opposite party is agent of the receipt of the premium, to notiexcused from a strict compliance. He must, fy the insured of the revocation of the auhowever, prevent performance-he must be

thority of the former agent to receive the the proximate, not the remote cause.

premium. Globe Mutual L. Ins. Co. v. Wolte, Helme v. Philadelphia L. Ins. Co., 61 Pa. 95 U. S. 326, 24 L. Ed. 387, involved the ef107, 100 Am. Dec. 621, has been materially fect of a payment to an agent after due date weakened by Smith v. National Life ins. Co.,

of premium. 103 Pa. 177, 49 Am. Rep. 121, where the court,

In New York Life Ins. Co. v Eggleston, 96 in speaking of the contention that the fail. U. S. 572, 24 L. Ed. 841, the insured had been ure of the insurer to send the customary no paying the premiums to different agents as tice excused the insured's default, said:

designated by the insurer in notices thereto

fore given. The insured having received no "By the terms of the contract it was cer- notice to whom to pay the last premium, and tainly the duty of the assured to pay on the the due date having passed, telegraphed to day stipulated whether he received notice or not; he knew, or was bound to know, the one of the agents to whom former payments several dates at which the premiums were had been made, asking to whom payment due, and his neglect to pay was at his own should be made, and on receiving a reply peril; the company was under no obligation telling him to pay a certain agent who held to give the notice (Thompson v. Insurance the receipts, tendered payment to such agent, Co., 14 Otto, 252). Assuming, however, that who refused to accept the same in the abthe assured may have been misled by the sence of a certificate of health. The insured company's course of business, there can be no

was sick when the tender was made, and apology or excuse for two whole years' neglect upon that ground; such a default could not be

died soon thereafter. traced to the misleading effect of the company's

Mayer v. Mutual Life Ins Co., 38 Iowa, uniform practice in sending notices."

304, 18 Am. Rep. 34, was apparently over.

ruled in Mandego V. Centennial Mut. L. In Insurance Co. v. Pottker, 33 Ohio St. Ass'n, 64 Iowa, 134, 17 N. W. 656, 19 N. W. 459, 31 Am. Rep. 555, when the policy was 877, where it was held that the failure to delivered by the agent, he agreed to give no- send notice, as was customary would not contice when each annual premium became due stitute a waiver of the condition of the poland to collect same at the residence of the icy relating to forfeiture because of nonpay. insured. This plan of collecting premiums ment of premiums. On petition for rehear. was carried out from the time the policy was ing, it was insisted that the decision was in issued, in 1868 to 1872. The insured was conflict with Phænix Mut. L. Ins. Co. v. Dos. ready, willing, and able to pay the premium ter, 106 U. S. 30, 1 S. Ct. 18, 27 L Ed. 65. due in October, 1873, but no one came as In disposing of this contention the court usual to receive it, and no notice had been said. given to pay otherwise than in the usual manner. A few days after the premium was tion to the annual assessments, which, we be

"In that case the controversy was in rela. due the insured saw the agent who had there. lieve, are required to be paid by a day cer. tofore collected the premiums and inquired tain, but the assured does not know the amount why he had not called for the premium. On required. It is not the same every year, and being informed by the agent that he had re- the assured does not know the amount he is signed because the company had marked a entitled to as dividends due, which he has the number of undesirable risks, and had direct- right to deduct from the amount payable uned him not to call on the parties so marked der the policy. Now, if the company sees or to give them notice as formerly, the in- proper to delay sending such notices, and insured sent the amount of the premium then duces the assured to believe a forfeiture will

not be insisted upon, we can readily see why due to the company. The company refused it should not be permitted to insist upon a forto accept the premium thus sent on the feiture. We have no such case. As is said in ground that the policy had been forfeited. the opinion, the amount due was payable at a It was there held that the insured had the day certain, and the amount was fixed and

(146 N.E.) known. The sending of the notice was purely, tice, as was their custom, it not being obligaa voluntary act."

tory under the policy. The court in that case In many of the cases cited by Mr. Joyce, discussing a reply setting up usage on the the insurer was estopped from declaring the part of the company of giving notice of the policy forfeited on account of having there-day of payment, and the reliance of the intofore accepted payment after the due date,

sured upon having notice, said. no question involving failure to give notice "This is no excuse for nonpayment. The agbeing involved. In others the insured was sured knew, or was bound to know, when his

* The reason entitled to apply dividends on the premi- premiums became due. * ums, in consequence of which he could not why the insurance company gives notice to its pay until he had notice from the insurer of members of the time of payment of premiums is

to aid their memory and to stimulate them to the amount to pay. The authorities are

prompt payment. The company is under no hopelessly divided on the question as to obligation to give such notice, and assumes no whether forfeiture will lie where the insurer responsibility by giving it. The duty of the has failed to give the customary notice. assured to pay at the day is the same, whether

(14) It is doubtless true that where the notice be given or not. Banks often give noamount of the premium is variable, is not tice to their customers of the approaching maknown by the insured, and can only be de- turity of their promissory notes or bills of extermined by conditions wholly within the change; but they are not obliged to give such

notice, and their neglect to do it would furknowledge of the insurer, the giving of no

nish no excuse for nonpayment at the day." tice is necessary before there can be a forfeiture for failure to pay a premium when This statement was quoted with approval due. Leonhard v. Provident Sav. L. Assur. by our Supreme Court in Continental Life Soc., 130 F. 287, 64 C. C. A. 533; Insurance Ins. Co. .v. Dorman, 125 Ind. 189, 25 N. E. Co. v. Doster, 106 U. S. 30, 1 S. Ct. 18, 27 | 213. L. Ed. 65; Life Ass'n v. Hamlin, 139 U. S. In Gasser's Ex'x v. Michigan Mut. Life 297, 11 S. Ct. 61, 35 L. Ed. 167; Hannum Ins. Co., 201 Ky. 659, 258 S. W. 102, the court, v. Waddill, 135 Mo. 161, 36 S. W. 616; In- in discussing the effect of a failure to pay surance Co. v. Smith, 44 Ohio St. 156, 5 N. E. a premium when due where there was only 417, 58 Am. Rep. 806.

a reasonable delay in making the payment, In Insurance Co. v. Smith, supra, the court resulting wholly from the failure of the inapplied the rule stated, saying:

surer to give notice according to its previous "The case is to be distinguished from one custom, after calling attention to the fact where the premium is a fixed amount, and that the case under consideration was not from a case, slightly differing, where, although that kind of a case, said: there may be dividends which the policy holder at his option may have applied as the pre

"He knew from his policy that its life demium, yet there is no agreement and uniform pended on his paying the annual premium on practice that the dividends are to be de- September 16 of each year. He paid these ducted each year from the premium and the premiums for 15 years, and so necessarily balance only paid to the company.

knew about the premiums and when they were probably be safely conceded that in either of payable. His course, after he obtained the the two supposed cases the assured would have loan of $229.15 on his policy, warranted the no right to depend upon a notice from the company in assuming that notice to him would company, not even if the company had ordinari. be futile. His conduct clearly indicated a ly sent such notice. For the very life of suc purpose not to continue the insurance; for, if cessful life insurance depends upon prompt not, he had no right to remain silent so long. payment of premiums, and their business would The failure to receive any further notice from be thrown into utter confusion if companies the company should have apprised him, if he had no means of protecting themselves by for-wished to continue his insurance, to pay what feiture for nonpayment of premiums.

But, he owed or arrange it with the company. He while this is true, the contract is nevertheless could not indefinitely remain silent and take an entire one of assurance for life, and the no action under the circumstances," payment of the premiums, after the first, is not a condition precedent but a condition subse- --citing Cooley's Brief on the Law of Insurquent, and the parties may deal in such way ance, vol. 3, p. 2281, where it is said: between each other as to estop the company

"In the case of ordinary life insurance, where from insisting upon a forfeiture where it would the policy fixes definitely the amount of the be inequitable for a forfeiture to be declared." premiums and the time of payment, the in

In addition to the authorities cited by Mr. surance company is under no obligation to Joyce, we have made a careful study of all maturity of the premiums accruing on the pol;

give the insured notice of the amount and other cases which we have been able to find, icy, unless there is an express

or implied and which might be helpful, and we call at- agreement that notice shall be given or tention to the following.

statute requiring notice." In Thompson v. Insurance Co., 104 U, S. 252, 26 L. Ed. 765, the court held it was no And continuing the court says: excuse for nonpayment of a life insurance “The weight of authority seems to be to the premium that the company failed to give no effect that an obligation to give notice of the

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maturity of insurance premiums cannot be im- , premiums, the only effect of a notice would posed by mere custom.” Citing Thompson v. have been to jog her memory. Assuming, Insurance Co., 104 U. S. 252, 26 L. Ed. 765; however, that appellee, each month prior to Gaterman v. American Life Ins. Co., 1 Mo. App: December, 1921, had waited until she receiv300; Grant v. Alabama Gold Life Ins. Co., 76 ed notice of the premium falling due the first Ga. 575.

of the next month, such fact would not reFor other cases holding that usage to give lieve her from the duty of acting. When the notice is a favor only and does not waive the notice of the January premium did not reach right to insist on å forfeiture for nonpay- her until after the notice of the February ment, see Union Central Life Ins. Co. v. premium ordinarily would have reached her, Chowning, 8 Tex. Civ. App. 455, 28 S. w. ordinary prudence most certainly required 117; Haydel v. Mutual Reserve, etc., Ass'n, her to take notice of such failure and to bas104 Fed. 718, 44 C. C. A. 169; Morey v. New ten to ascertain why the notice had failed York L. Ins. Co., 17 Fed. Cas. page 743, No. to arrive at the proper time. Knowing a 9795, 2 Woods, 663; Redmond v. Canadian premium was due January 1, she knew that Mutual Aid Ass'n, 18 Ont. App. 335; Camp- by the terms of the policy the premium must bell v. National L. Ins. Co., 24 Upper Canada be paid when due or within 30 days thereCommon Pleas, 133,

after. If, as was held in the Georgia case, In Yoe v. Benjamin C. Howard, etc., Ass'n, two or three months where the premiums 63 Md. 86, the court, in speaking of a 30-are payable yearly, a month or six weeks days period of grace, said:

where they are payable semiannually are

reasonable times within which to pay, the 30“The 30 days' grace was for his (the in; day period of grace in the instant case sured's] convenience and accommodation; and though he had the full period of 30 days with should, as a matter of law, be held a reasonin which he could make the payment, yet if able time within which to pay, since the purbe thought proper to defer payment to the pose of granting grace is to relieve the inlast hour of that period, the delay was at his sured from possible default within that time own risk, and not that of the association. in the payment of premiums when due. Here the full 30 days had expired without pay Where an insured, with the knowledge ment, and the party died 2 days thereafter; possessed by appellee, allows six weeks to and, that being the case, he was not a member when he died, having by his default lost pass by after failing to receive the customary his membership and all the benefits appertain- 1 monthly notice, and also allows the time for ing thereto."

paying two premiums to pass without any

excuse for so doing, other than that he had [15, 16) Our Supreme Court in Supreme theretofore waited until the receipt of notice, Council, etc., v. Grove, supra, seemingly has should not be sufficient to relieve him from approved the rule denying forfeiture where the failure to pay within time, when there is there has been a uniform custom of giving no claim that he did not know the amount notice of the time when premiums are due, of the premiums and when they were due and where there has been a failure to give and payable. Such a failure can result only such notice, and where there has been a from negligence. prompt offer to pay. But in such cases the [18] Conceding the law to be as contended act of the company in failing to give notice for by appellee, she had the burden of prov. must be the proximate cause of the failure ing that her failure to pay the premium of to pay. Brooklyn Life Ins. Co. v. Bledsoe, January 1, 1922, on that day, or within a 52 Ala. 538. And when the insured seeks to reasonable time thereafter, was the proxibe relieved from a forfeiture for nonpayment mate result of the failure of appellant to of premiums, on the ground of failure to give the customary notice. She also had the give the customary notice, he must bestir burden of proving that she offered to pay himself and pay or offer to pay within a within a reasonable time after January 1, reasonable time. A failure to act within a 1922. reasonable time, without some providential Considering the evidence post favorable to cause, ought to conclude him. Grant v. Ala- appellee, it shows she entered into a contract bama Gold Ins. Co., supra.

requiring her to pay a fixed premium on the [17] In the usual course of events, appel- first day of each month; that by such conlee would have received a notice about the tract she agreed that notice of the time when middle of December, 1921, that the next pre- the payments should be made was accepted mium would be due and payable the 1st of by the acceptance of the policy, and that any January, and about the middle of January other notice was waived; that she paid these she would have received a notice that an- monthly installments for a period of eight other premium would be due February 1. years; that notwithstanding appellant was She knew without any notice that a premium not required to give her notice of the due was due January 1, and that another was date of the premiums, it had given notice due February 1. She also knew the exact each month, except that it failed in Decemamount of each of them. With full knowl- ber, 1921, to give notice of the premium due edge of the due date and the amount of the January 1, 1922; that the contract provided

(145 N.E.) for a grace of 30 days; that she was without , appellant August 16, 1920, inclosing a check any excuse for not paying within the period for the premiums for August and September, of grace, other than that she had always in which appellee stated she had gotten bewaited until she received the notice. This hind in her payments because of sickness. in our judgment is not sufficient to discharge Appellee and her husband at that time in the burden of proving that her failure to pay their applications for reinstatement of the within the period of grace was the proximate policy ad itted the policy had lapsed beresult of the failure of appellant to give the cause of nonpayment of premiums. In view customary notice, and to relieve her from of the evidence showing that the policy had the responsibility of her own neglect. Where lapsed in 1920, and had thereafter been rea party knows the amount of the premium, instated on application of appellee and her knows when it is due, and where there is no busband, when there was no claim of any question as to whom it should be paid, we double payment of premiums, and no claim fail to see how a failure to receive notice of error at that time, and when there was from the insurer stating when the premium no claim by appellee in her testimony or in is due, can be said to be the proximate cause the testimony of any other witness that she of the insured's failure to pay within the made any double payments, it is clear there 30-day period of grace.

was no evidence to warrant the giving of "Courts have always set their faces against

this instruction or to sustain a finding that an insurance company which, having received there had been any double payment of preits premiums, has sought by technical defenses

miums. to avoid payment, and in like manner should [21] Instruction No. 6, given at the rethey set their faces against an effort to exact quest of appellee, told the jury that if appayment from an insurance company when the pellant sent notices each month during the premiums have deliberately been left unpaid.” life of the policy, and that such notices conMutual Life Ins. Co. v. Hill, 193 U, S. 551, 24 tained directions, that they should be reS. Ct, 538, 48 L. Ed. 788.

turned with the payment of the premiums,

it might find that appellant was estopped The verdict in our judgment is contrary from claiming the policy was forfeited by to law,

reason of the nonpayment of the premiums (19) Appellant complains of instruction No. for January and February, 1922, if it found 1, given by the court on its own motion. that notices of the January and February By this instruction the court informed the premiums were not sent, and were not rejurors that they were the exclusive judges ceived by appellee, and that she relied upon of the facts proven, and of the weight and the sending of such notices for the payment credit to be given to the testimony of each of the premiums due on the policy. witness; that in arriving at the weight and The evidence without conflict shows that credit of the witnesses they had the right all payments on the policy up to and includto take in consideration their actions and ing the installments for September, 1914, demeanor while on the witness stand, their were made to an agent who called on appelwillingness or unwillingness to testify, their lee each month, and collected the monthly means of knowing the things about which premiums and gave appellee a receipt. Some they testified, the reasonableness or unreason of these receipts were introduced in eviableness of their testimony, and from “these dence. There was no reference in any of facts determine what has been proven." them to any notice. There is nothing in any Appellant objects to the italicized expression of them to indicate that any notice had been and says it permitted the jury to consider given, or that any notice was to be returned matters outside of and beyond the evidence. with the payment of the premiums. The While the instruction is not a model, it is only notice introduced in evidence was a nonot subject to the objection urged against it. tice from appellant stating that the first

[20] Instruction No. 5, given at the request monthly premium on the policy would be due of appellee, was to the effect that if the September 1, 1913, and which contained a jury found appellee had paid the premiums statement that that notice should be redue January, 1917, and January, 1919, twice turned with the remittance. No other notice there could be no forfeiture of the policy is to be found in the record. Neither is there for failure to pay the premiums due Janu- any evidence that any of the other notices ary 1, and February 1, 1922. When the mailed or given to appellee contained any policy lapsed in 1920, because of nonpay- such statement. The record is absolutely siment, appellee made no claim that she there- lent as to the contents of all notices other tofore had made any double payment. She than the one given in September, 1913. Aptestified that she paid all of the premiums pellee makes no claim that she was under which were paid; that on August 16, 1920, the impression that it was necessary for her she mailed appellant a check for the premi. to receive a notice before she could pay the ums due August 1, and September 1, 1920. monthly installments, or that she labored unA letter signed "John and Ellen Bartlett," der the belief that it was necessary for her doubtless written by appellee, was mailed to to return the notice when she made her re

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