Bowling v. Aetna Life Ins. Co.

• Decision Date: 03 March 1936
• Docket Number: 26203.
• Citation: 55 P.2d 1023,176 Okla. 405,1936 OK 196
• Parties: BOWLING v. ÆTNA LIFE INS. CO.
• Court: Oklahoma Supreme Court

55 P.2d 1023

176 Okla. 405, 1936 OK 196

BOWLING v. ÆTNA LIFE INS. CO.

No. 26203.

Supreme Court of Oklahoma

March 3, 1936

Rehearing Denied March 24, 1936.

Syllabus by the Court.

1. Where an accident insurance policy was issued providing by its terms that insurance was to be in force for a period of twelve months from a given time commencing and ending at 12 o'clock noon standard time, and where annually upon payment of the stipulated premium a written or printed receipt was issued continuing the policy in force for twelve months subject to all the terms of said policy held, that said policy was a contract of insurance from year to year.

2. Where an accident insurance policy contained a provision that the company could cancel the policy by notice of cancellation mailed to insured's residence address, or served upon insured by the representative of the company with a check of the company or its duly authorized agent or cash for the unearned part, if any, of the premium actually paid, and where the company returned to insured on or prior to the expiration date of said policy the premium tendered by insured for the ensuing year with the statement that the policy would not be renewed beyond the expiration date thereof, held, that such action by the company terminated the policy at the expiration of the period for which premium had been paid.

3. Where an accident insurance policy contained a provision for increased benefits in the event of the policy being continued in force for a number of years and such policy contained a provision authorizing the company to cancel the policy as therein provided, such provision for increased benefits did not confer upon insured the right to continue the policy in force after the company exercised its right to cancel or terminate the policy in accordance with the cancellation clause thereof.

Appeal from District Court, Garvin County; W. G. Long, Judge.

Action by Robert E. Bowling against the Ætna Life Insurance Company. From a judgment dismissing the action after a demurrer to the amended and supplemental petition was sustained, plaintiff appeals.

Affirmed.

R. E Bowling, of Pauls Valley, and W. L. Farmer, of Oklahoma City for plaintiff in error.

Embry Johnson, Crowe & Tolbert and James H. Ross, all of Oklahoma City, for defendant in error.

PER CURIAM.

This action was commenced December 7, 1933. The parties are referred to as they appear below. Plaintiff alleges in substance that on December 8, 1914, plaintiff purchased from Ætna Life Insurance Company, a corporation, defendant below an accumulative accident policy whereby, in consideration of a premium of $15 it insured plaintiff below, Robert E. Bowling, for a term of twelve months from the 8th day of December, 1914, commencing and ending at 12 o'clock noon, standard time, against loss as therein defined, resulting directly and independently of all other causes, from bodily injuries effected solely through external, violent, and accidental means, suicide (sane or insane) not included.

Part VI of the policy reads:

"If all premiums are paid annually, the original principal sum hereby insured will be increased ten per cent. In the second and each subsequent year for five consecutive years, until such increases amount to fifty per cent. of the original sum insured, and thereafter, so long as this policy is maintained in force by annual premium payments the amount insured will be the original principal sum plus the accumulations.

If premiums are paid otherwise than annually, the original principal sum hereby insured will be increased five per cent. in the second and each subsequent year for ten consecutive years, until such increases amount to fifty per cent. of the original sum insured, and thereafter, so long as this policy is maintained in force the amount insured will be the original principal sum plus the accumulations."

Part XIII, subdivision A, reads: "The Company may cancel this policy by notice of cancellation mailed to the Insured's residence address as given in the Schedule of Warranties endorsed hereon, or served upon the Insured by a representative of the Company, with a check of the Company or of its duly authorized agent, or cash, for the unearned part, if any, of the premium actually paid, but such cancellation shall be without prejudice to any claim arising prior to the date on which the cancellation takes effect."

Thereafter, on or before the 8th day of December of each year, plaintiff paid to defendant a premium of $15, and the policy was continued in force for respective periods of twelve months. Upon receipt of each premium the company issued its printed receipt therefor, in which it was expressly stated that the policy was continued in force from noon of December 8 of the year for which the premium was paid for twelve months, subject to all of the terms of said policy.

On or about January 3, 1917, defendant executed a beneficiary supplement to said policy in the form of a clause attached to said policy insuring the beneficiary under the policy, Clara Ellen Bowling, wife of plaintiff, in the original principal sum of $3,000, against accident as therein provided.

On or about December 8, 1919, defendant issued its premium receipt with a statement thereto attached showing that the amount of insurance under the policy had increased in amount from $6,000 to $9,000 for special accidents, and from $3,000 to $4,500 for ordinary accidents. Similar statements were attached to the receipt for the premium paid on or about December 8, 1922, and to the receipt for the premium paid on or about December 8, 1926.

On or about November 10, 1933, defendant notified plaintiff that it would not continue the policy past the anniversary date, which was given as of October 20. On December 6, 1933, plaintiff mailed check for premium for the twelve months' period commencing December 8, 1933, which check was returned to plaintiff by letter of December 7, 1933, with a statement that the policy would not be renewed by defendant.

After demurrer was sustained, plaintiff elected to stand upon his petition and the action was dismissed, from which order and judgment plaintiff appeals, assigning as error the action of the court in sustaining defendant's demurrer to plaintiff's petition and dismissing the action.

Plaintiff contends that by reason of the continued payment of the premium and the increase in the value of the policy and of the additional insurance granted for the beneficiary under the policy, he has a vested interest which is a property right that cannot be taken, and that injunction is the proper remedy to protect that right.

The contract of insurance was for a term of twelve months, commencing at noon, standard time, December 8, 1914, and ending, by its express provisions, at noon December 8, 1915, unless renewed by the payment and acceptance of an additional premium. There is no provision in the policy which binds either the insured to pay additional premiums or the insurer to accept same. The defendant could not require the plaintiff to pay the premium and thereby renew the policy; neither could the plaintiff require the defendant to accept a premium when tendered and thereby renew the policy for an additional twelve months' period. If at the end of any twelve months' period the plaintiff decided that he no longer desired to keep the policy in force, he could either refuse or fail to pay the premium, and the policy would then automatically terminate at the end of the period for which premium had been paid. Likewise, if at the end of any period for which premium had been paid the company decided that it did not care to renew the policy, it could refuse to accept the premium when tendered, in which case the contract would be terminated. The rights of the parties were mutual, in the sense that neither was bound to renew the contract and before the policy could be extended or renewed it was necessary for the consent of each of the parties thereto to be had.

It is to be observed that in addition to the express provisions of the policy hereinbefore quoted fixing its duration for a period of twelve months, upon receipt of each premium a written receipt was issued "continuing same in force from noon of December 8th (of the year for which premium was paid), for twelve months, subject to all of the terms of said policy."

In Hodgson v. Preferred Accident Insurance Company of New York, 100 Misc. 155, 165 N.Y.S. 293, 295, affirmed on appeal 182 A.D. 381, 169 N.Y.S. 28, discussing the terms of a policy somewhat similar to that involved herein, the court said: "The policy in question ran for a specified term. There was no provision in it for its...