National Life & Acc. Ins. Co. v. Collins
Decision Date | 11 February 1943 |
Docket Number | 6 Div. 116. |
Court | Alabama Supreme Court |
Parties | NATIONAL LIFE & ACCIDENT INS. CO. v. COLLINS. |
Rehearing Denied March 25, 1943.
McEniry & McEniry, of Bessemer, for appellant.
Ross Ross & Ross, of Bessemer, for appellee.
The suit was for recovery on life insurance policies. There was conflict in the evidence as to whether or not the policies lapsed for the non-payment of premiums.
The rule as to the procuring c. reinstating lapsed life insurance policies by misrepresentation of material facts has been fully discussed and restated in New York Life Ins. Co. v Zivitz, Ala.Sup., 10 So.2d 276, 278, where the court observed:
In Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 146 So. 524, 525, it is declared of contract stipulations:
In the consideration of the usual form of ordinary life policies in Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 378, 153 So. 755, 756, it is declared:
Such are the well-established rules that obtain in this jurisdiction as to procuring and reinstating of lapsed policies of life insurance and being in life when the delivery or the reinstatement of the policy is accomplished.
The instant policies contain provisions that the entire agreement between the company and the insured and the holder or owner of the policy is stated in the contract. That its terms cannot be changed or conditions varied, except by written agreement of the president or secretary of the company. That no other person shall have the power to delete contracts, waive forfeitures or receive premiums on policies in arrears more than four weeks or to receipt for the same, and that such arrears receipt by agents or employes "shall not be credited upon the policy, whether receipted for or not, except as provided in paragraph entitled 'revival'."
The pertinent provisions of revival are: "Should this policy become void in consequence of nonpayment of premium, if not more than fifty-two premiums are due, it may be revived at the option of the Company upon written application of the insured showing satisfactory evidence of insurability, and upon payment of all premiums in arrears; provided that the Company's consent to such revival shall appear by endorsement hereon, and that there shall be no liability whatever under this contract for any disability or death resulting from an accident occurring or illness contracted or commencing prior to date of revival endorsement hereon as aforesaid."
Such are the pertinent provisions contained in the policy of appellant issued on August 13, 1934.
On March 29th, 1937, the defendant insured decedent under a policy of insurance against illness, accident and death. The beneficiary in both policies was the wife of insured, appellee here. Pertinent provisions of the last policy are:
Further provisions of each policy of the assured were to the effect that if the applicant had prior to the date of issue suffered with certain diseases, among which is named "diseases of the heart," no obligation is assumed by the company.
Evidence of the assistant manager of the defendant is to the effect that both policies had a grace period of four weeks, and that the same lapsed for nonpayment of premiums according to their books on the 29th day of April, 1940, the date of the last payment of premiums being March 28, 1940. The defendant's lapsed records were duly identified and offered in evidence showing such dates.
The evidence for the plaintiff tended to show that payments of premiums on both policies were duly made by the beneficiary to the agent of the company. In this respect the evidence is in sharp conflict and made a case for the jury. McMillan v. Aiken, 205 Ala. 35, 88 So. 135.
The defendant's evidence tended to show that after the date indicated as a lapse of the policies, the assured was working for the Republic Iron & Steel Company, and went to the company's physician for treatment, who found that the insured was suffering from high blood pressure and he was sent to the Norwood Clinic for a further check up. In his diagnosis the company's physician found that assured was suffering from hypertension, which the evidence shows was an ailment of kidneys and heart, and this was during the month of May, 1940.
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