Abell v. Penn Mut. Life Ins. Co.
| Citation | 18 W.Va. 400 |
| Parties | ABELL v. PENN MUTUAL LIFE INSURANCE CO. |
| Decision Date | 29 October 1881 |
| Court | Supreme Court of West Virginia |
(PATTON, J., Absent.[1])
1. It is no ground of demurrer, that the bill of particulars is too vague.
2. At the term of a court, at which a case is on the office judgment docket, the Sheriff by leave of the court amends his return on the summons; the defendant then offers to file pleas to the jurisdiction of the court and in abatement which do not deny the truth of the amendment of the return and which on their face show they could have been filed at rules. These pleas should be rejected by the court as offered to be filed too late.
3. A replication to a plea of the statute of limitations under the eighteenth section of chapter one hundred and four of Code of West Virginia need not allege, that the defendant removed from this State with intent to obstruct the plaintiff in the prosecution of his action, as the removal itself is such an obstruction.
4. A contract is made out of this State to be performed in this State with the plaintiff, a citizen and resident of this State, by the defendant, who had been a permanent resident of this State, but who was then temporarily absent from it. The time, during which the defendant remains out of the State, is not to be computed as any part of the time, within which the creditor is required by the statute of limitations to prosecute his suit on such contract.
5. A replication, which in general language states, that the defendant by assurances of settlement and adjustment and renewal of a policy made with intent to deceive, mislead and defeat the plaintiff's right of action, is a good replication under the eighteenth section of chapter one hundred and four of the Code of West Virginia, though the particular assurances or terms of proposed adjustment are not stated in the replication.
6. An insurance-company chartered by another state, but which is doing business in this state under our statute-law or under the Virginia law of 1855-1856, is to be considered for the purposes of being sued as domiciled in this state.
7. The withdrawal by such a company of its agent from this state or the failure of such a company to appoint an agent in this state, when for any reason there ceases to be one resident in the state, is a departure from the state by the insurance-company within the meaning of section eighteen of chapter one hundred and four of the Code of West Virginia.
8. A policy of life-insurance, which stipulates for the payment of an annual premium by the assured with a condition to be void on non-payment promptly, is not an insurance from year to year like a common fire-policy; but the premium constitutes an annuity, the whole of which is the consideration for the entire assurance for life, and the condition is a condition subsequent, the non-performance of which makes the policy void.
9. The time of payment in such a policy is material and of the essence of the contract.
10. If the failure to pay the annual premium is caused by the intervention of war between states, in which the insurance-company and the insured respectively reside, which makes it unlawful for them to hold intercourse, the policy is nevertheless annulled, if the company insist on the condition of forfeiture; but in such case the assured is entitled to have refunded the premiums actually paid after the retention by the company of so much of them, as will compensate it for the risk which it incurred of having to pay the amount insured, while the policy was in force.
11. This sum, which the company has a right to retain, is the actual cost of insurance during the several years the policy was in force and not the charges, which the company would have made for an insurance for the number of years the policy was in force.
12. When an insurance-company thus elects to annul the policy, it is entitled to no profits by reason of the policy having been issued, but only to the actual cost of insurance, while the policy was in force.
13. The doctrine of the revival of contracts suspended during the war is based on considerations of equity and justice, and can not be invoked to revive a contract, which it would be unjust or inequitable to revive, as when time is of the essence of the contract, or the parties cannot be made equal.
14. The case of the New York Life Insurance Company v Stathouse et al., 3 Otto (95 U.S.) 24, disapproved so far as it holds, that in such a case, as is stated in syllabus 10, the assured is entitled to the equitable value of the policy arising from the premiums actually paid. If this was the extent of the rights of the assured, the company would be allowed to retain a profit out of a policy, which they had elected to annul, when in justice it can in such case out of the premiums, it has received, retain only the actual costs incurred by it in carrying the risk, when the policy was in force.
15. The premiums paid by the assured in such case after subtracting from them each year the actual cost of carrying the assurance that year should bear interest from the times they were respectively paid.
16. The action in such a case should be assumpsit on the implied promise of the company to pay what ex aequo et bono is due; and the declaration need contain nothing but the common money-counts.
17. The plaintiff in such action should be the person, who under the provisions of the policy paid the premiums, though by the policy the amounts assured were to be paid on the death of the assured to a third party.
18. In such a suit the mortality-tables may be taken notice of by the court judicially, though not offered in evidence.
Writ of error to a judgment of the circuit court of the county of Jefferson, rendered on the 10th day of April, 1879, in an action of assumpsit in said court then pending, wherein Joseph F. Abell was plaintiff, and the Penn Mutual Life Insurance Company was defendant, allowed upon the petition of said defendant.
Hon John B. Hoge, judge of the third judicial circuit, rendered the judgment complained of.
Green, Judge, furnishes the following statement of the case:
This was an action of assumpsit brought on August 29, 1877, by Joseph F. Abell against the Penn Mutual Life Insurance Company, a Pennsylvania corporation doing business in this state, to recover certain moneys paid it as premiums on a life-policy issued by the company to the plaintiff before the war, on which during the late war and because of it the plaintiff failed to pay the annual premium. The declaration contained only the common money-counts. With it was filed this bill of particulars:
The policy was filed with the bill of particulars as a part thereof. It provided, that Penn Mutual Insurance Company in consideration of the annual premium of $116.10 to them paid in the following manner, $58.05 in cash on the 31st day of March in each year during the life of said plaintiff, and $58.05 in a note at twelve months given each year with interest on the 31st day of March in each year during his life, did assure the life of Joseph F. Abell of Jefferson county, Virginia, in the amount of $3,000.00 for the term of his natural life. The sum insured was to be paid to Lawson Botts, trustee for Anna S., Junetta B. and Martha G., children of Joseph F. Abell, within sixty days after due notice and proof of the death of the plaintiff. The policy had in it the usual conditions and stipulations in a life-policy, including this: " The policy contained also this further stipulation: " And it is further agreed, that in every case, when this policy shall cease and determine or become or be null and void, except in case of death, all previous payments made thereon and all profits, for which scrip has not been issued, shall be forfeited to said company." There is on the back of this policy a receipt signed by Jos. F. Miller for the second instalment of interest on the premium notes, which interest was due March 31st, 1853. There was also on the back of this policy a table of the rate of insurance of $100.00 on a single life for one year at a time and for life, from which it appears that at the age of forty-six the annual premium charged by the company on a policy for life of $100.00 was $3.87.
On the filing of this declaration at September rules, 1877, a conditional judgment was entered, and at October rules, 1877, it was confirmed. At the first term of the court thereafter, on November 16, 1877, the defendant appeared for the purpose only of making a motion, which he did make, to strike the case from the docket, because the process did not appear to have been served on the defendant. The return on the summons was:
" Served the within process within Ohio county by delivering a copy thereof on the 31st day of August, 1877, to R. W. Tucker, general agent of the Penn...
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