Aetna Life Ins. Co. v. Duncan
| Decision Date | 14 July 1924 |
| Docket Number | (No. 119.) |
| Citation | 264 S.W. 835 |
| Parties | AETNA LIFE INS. CO. v. DUNCAN. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pulaski County; Marvin Harris, Judge.
Action by Mrs. Rozell Duncan against the Ætna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Jno. A. Sherrill, of Little Rock, for appellant.
Gray & Morris, of England, Ark., and Emerson & Donham, of Little Rock, for appellee.
This is an action by Mrs. Rozell Duncan against the Ætna Life Insurance Company (hereafter called company) on a policy of life insurance issued by the company on November 11, 1920, insuring the life of her husband, Jerry C. Duncan, in the sum of $6,000, in which policy she was named as the beneficiary. She alleged the death of her husband on June 17, 1922, set up the policy, and alleged that the premiums had been paid; that the company had due notice and proof of death, and had refused to pay the amount due on the policy. The company moved to make the complaint more definite and certain by stating the date on which the last premium was due and the date upon which it was paid, if paid, and the date and manner of delivery of said payment, and whether the consideration was other than cash, and moved to require the plaintiff to exhibit all original letters from the company, or to state their substance, or to state the substance of the agreement, if verbal, to accept the consideration for the premium. The court overruled the motion.
The company answered, admitting the issuance of the policy, but denied due notice and proof of death, and denied that the premium necessary to keep the policy in force had been paid before the death of Duncan, and averred that the policy, therefore, had lapsed, and had never been reinstated, and denied liability on the policy. The policy was introduced by the plaintiff. Without setting forth all of its provisions in hæc verba, those material to this controversy are in substance as follows:
In consideration of an annual premium of $134.76 to be paid in advance at its home office or to its agent on the 11th day of November in each year during the life of the assured it insures the life of Duncan in favor of his wife in the sum of $6,000, payable upon receipt at the home office of due proof of the death of Duncan. If any subsequent premium was not paid when due, then after the grace period of 31 days the policy lapsed. The policy provided that within 5 years after default in any premium payment it could be reinstated upon evidence of insurability satisfactory to the company and the payment of arrears of premiums, with interest at the rate of 6 per cent. per annum.
The policy contained these further provisions:
There was a provision making the application for insurance and the policy the entire contract between the parties. In the application is a statement by the assured acknowledging that all policies and agreements made by the company are signed by one or more of its executive officers, and that "no agent or other person not an executive officer can grant or waive any condition of its policies or make any agreement which shall be binding upon said company."
The undisputed facts are as follows: The first premium was paid and the policy was in force from November 11, 1920, to November 11, 1921. The premium was not paid on the latter date. On April 20, 1922, Duncan wrote Campbell & Hart, state agents and managers of the company, a letter in which he acknowledged receipt of their letter of April 18th in regard to the reinstatement of his policy. In this letter he stated that the soliciting agent, Harmon, had told him that he could renew by making a note, and he requested the managers, if this were satisfactory, to send him a note due November 15, 1922. In reply to this letter Campbell & Hart wrote:
On April 24, 1922, Duncan wrote in reply to this letter, stating that he could not send the money, and, if the company would not take his note, he would let his insurance drop. In reply to this the managers wrote on April 26th telling Duncan that, if he was unable to make the payments as outlined in the previous letter, that was the only way they could handle the matter, and it would be best for him to wait until fall and then advise if he could make the payments and they would give the matter prompt attention. On May 20, 1922, the managers wrote Duncan that his policy, which had been recently reinstated, had again lapsed for the nonpayment of the reinstatement premium and inclosing a form for reinstatement for Duncan to fill out and return if he was ready to pay the premium and reinstate the policy, and concluded by saying, "We will make an effort to get the company to reinstate it." On May 23, 1922, Duncan answered acknowledging receipt of letter and blank form, and stated, "Am sending you check for $25 dated June 1st," and requesting the managers to send him a note to sign for the balance. The application for reinstatement referred to in the letter of May 20th, above, was introduced, and is as follows:
"Approved ____
"Brief Reinstatement Application No. 266970S
"Jerry C. Duncan
"Ætna Life Insurance Company, Hartford
Conn
"Lapsed November 11, 1921.
"Canceled Lap. May, 1922.
"Date reinstatement, June 7, 1922.
"Unpaid premiums due (see margin) $134.76.
"Premium Int. $1.35.
"Net payment $136.11.
"Agent. Campbell & Hart, Managers.
"Examined by Pearl.
"Application received, record made June 1,
1922.
"No record — L. B., June 1, 1922, A. G. P."
Then follow questions with reference to the health of the assured and his occupation, and various other questions, on which no issue is based in the case, and then the following recital:
On June 10, 1922, the managers wrote Duncan the following:
In answer to this letter Duncan wrote June 12, 1922, saying:
The agents answered this letter on June 16th as follows:
Mrs. Duncan testified that her husband was killed instantly on June 17, 1922, between 12:30 and 1:00 o'clock. She identified a note which her husband had signed on that day about 12:00 o'clock which note is as follows:
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Aetna Life Insurance Company of Hartford Conn. v. Duncan
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