Davis v. Mut. Benefit Health & Accident Ass'n.

• Decision Date: 26 June 1934
• Docket Number: Case Number: 22877
• Citation: 1934 OK 376,34 P.2d 579,168 Okla. 514
• Court: Oklahoma Supreme Court
• Parties: DAVIS, Adm'r, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

1934 OK 376

34 P.2d 579

168 Okla. 514

DAVIS, Adm'r, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

Case Number: 22877

Supreme Court of Oklahoma

Decided: June 26, 1934

Syllabus

¶0 1. Time--Accident Occurring in Afternoon of Sunday not Covered by Insurance Policy Expiring at Noon.

An accident insurance policy which by its terms expires at noon on Sunday, a nonbusiness day, does not cover an accident occurring in the afternoon of said day.

Insurance--Accident Policy--Mere Existence of Unexercised Option to Continue Terms of Policy Ineffective to Extend Period of Insurance so as to Cover Accident Happening Between Expiration of Insurance and Termination of Option.

An option of the acceptance of any premium under a health and accident policy is a mere offer, and unless it is accepted within the time limited by the policy it is of no force and effect, and the mere existence of such an unexercised option extending beyond the period of insurance specified in the policy cannot operate to extend the period of insurance so as to cover an accident which happens between the expiration of the insurance and the termination of the option. The only thing extended by section 3552, C. O. S. 1921, is the time for exercising the option and not the time of insurance against the happening of an accident. Upton v. Travelers Insurance Co., 179 Cal. 727, 178 P. 851, 2 A. L. R. 1597. Couch on Cyclopedia of Insurance Law, vol. 6, sec. 1347.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by W. T. Davis, administrator of estate of Dwight O. Davis, against the Mutual Benefit Health & Accident Association. Judgment for defendant, and plaintiff appeals. Affirmed.

O. A. Cargill and W. R. Graalman, for plaintiff in error.

Keaton, Wells, Johnston & Barnes, G. J. Cleary, and Phillip E. Horan, for defendant in error.

MCNEILL, J.

¶1 This is an action upon an insurance policy to recover for the accidental death of the insured.

¶2 The policy insured against accident and loss of life, and provided for the payment in advance of $ 20 as first payment; and the payment in advance of premiums of $ 14 quarterly, or $ 56 annually thereafter, beginning with March, 1, 1930, to keep the policy in continuous effect. The policy also provided:

"If any such dues be unpaid at the office of the association in Omaha, Neb., this policy shall terminate on the day such payment is due. * * *

"The acceptance of any premium on this policy shall be optional with the association, and should the premium provided for herein be insufficient to meet the requirements of the association, it may call for the difference as required.

"(d) The term of this policy begins at 12 o'clock noon, Standard time, on date of delivery to and acceptance by the insured against accident and on the thirty-first day thereafter against disease and ends at 12 o'clock noon on date any renewal is due."

¶3 The facts are short and are not in dispute. The premiums were paid on said policy up to and including noon of June 1, 1930. June 1, 1930, fell on Sunday. On the afternoon of June 1, 1930, the insured sustained an accidental personal injury which resulted in his death at about 8 p. m. of said day.

¶4 The question for determination reduces itself to a single controversy as to whether the policy remains in full force and effect until Monday, June 2, 1930. The trial court held against a recovery under the policy.

¶5 It is contended by plaintiff in error, plaintiff below, inasmuch as the last day of payment of the premium upon the policy fell on Sunday, a nonbusiness day, that the policy covered the accident in question by reason of the fact that the succeeding Monday should be considered the last day for payment of said premium, and he seeks support in section 3552, C. O. S. 1921, to wit:

"Whenever any act of a secular nature, other than a work of necessity, or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed."

¶6 See, also, section 884, C. O. S. 1921.

¶7 It is the theory of counsel for the insured that under said section of the statute the premium coming due on Sunday could be paid on the following Monday, and that the policy of insurance could not be forfeited or terminated on Sunday.

¶8 Counsel for the defendant in error insurance company contend that said section of the statute has no application to the case at bar for the reason that the injury and death of the insured was...