Duerksen v. Brookings Intern. Life & Cas. Co.

• Decision Date: 28 March 1969
• Docket Number: No. 10493,10493
• Citation: 84 S.D. 20,166 N.W.2d 567
• Parties: Albert DUERKSEN and Lydia Duerksen, Plaintiffs and Respondents, v. BROOKINGS INTERNATIONAL LIFE AND CASUALTY COMPANY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 567

166 N.W.2d 567

84 S.D. 20

Albert DUERKSEN and Lydia Duerksen, Plaintiffs and Respondents, v. BROOKINGS INTERNATIONAL LIFE AND CASUALTY COMPANY, Defendant

and Appellant.

No. 10493.

Supreme Court of South Dakota.

March 28, 1969.

Rehearing Denied May 14, 1969.

John H. Zimmer, of Zimmer & Haar, Parker, for plaintiffs and respondents.

McCann & Martin, Brookings, for defendant and appellant.

BIEGELMEIER, Presiding Judge.

Plaintiffs are beneficiaries of a life insurance policy issued by defendant on the life of their daughter Jean who died as a result of an airline crash on August 6, 1966. The policy had been issued on an application signed by the insured's father Albert Duerksen dated July 6, 1961, at which time he delivered his check to the agent for the first year's premium in the sum of $29,38, the correct amount to pay for 359 days' insurance on a $30.00 annual premium rate discounted for the first six days of July which had elapsed. On July 20th a doctor, authorized by applicants, completed a form certifying the insurability of Jean C. Duerksen, then a minor, and the form was then mailed to defendant. On July 26, 1961 it issued the policy sued upon backdated to July 6, 1961 and mailed it to its agent, who delivered it to insureds after August 1, 1961. The check mentioned was also cashed by defendant on that date.

The application was for a College Student Life Plan which permitted automatic conversion to $5,000 of 20 Pay Life, a choice applicant elected. It contained a provision the insurance company,

'shall incur no obligation because of this application unless and until a policy is delivered to the applicant and the first premium thereon is paid in full while the health or other conditions affecting the insurability of the applicant are as described in this application.'

The policy provided:

'This policy, together with the application, a copy of which is attached hereto and made a part hereof, contains and constitutes the entire contract between the parties hereto'

and a further clause,

'The consideration for this policy is the application therefor and the payment of the first premium of--$29.38--dollars for the balance of the year to the anniversary date above and the further payment of annual premium of--THIRTY AND 00.100--dollars on the Anniversary Date, shown above, and on each subsequent anniversary date during the life-time of the Insured'.

The policy also contained a grace provision as follows:

'Any premium is in default if not paid on or before the date it is due, but a grace of thirty-one days without interest, during which period this policy will remain in full force, shall be allowed for the payment of every premium except the first.'

Annual premiums were thereafter paid in 1962, 1963, 1964 and the last one on June 22, 1965.

Defendant insurance company contends the policy of insurance, including the 31 days of grace, lapsed on August 2, 1966 and so was not in effect on August 6, 1966. Plaintiff urges defendant accepted a premium for 359 days of insurance, that as the application, made a part of the policy, provided it did not become effective until it was delivered and the first premium paid, which was on or after August 1, 1961, the four subsequent annual premiums paid kept the policy in force to August 2, 1966 and, with the 31 days of grace, it was in force on the date of her death.

In Lyke v. First Nat. Life & Accident Ins. Co., 41 S.D. 527, 171 N.W. 603, the court stated that notwithstanding the provision that premiums shall be paid annually in advance of a stated date, the doctrine announced in McMaster v. New York Life Ins. Co., 183 U.S. 25, 22 S.Ct. 10, 46 L.Ed. 64, was undoubtedly the correct rule of law, that an insured, by reason of having paid a first annual premium, would be entitled to a full year's insurance from the time when the insurance went into effect, and that a second or further premium would not be due until such entire year had expired.

The court held (as stated in Haynes v. Midland Nat. Life Ins. Co., 60 S.D. 212, 216, 244 N.W. 110, 111) 'that, notwithstanding a policy provision that premiums should be payable annually in advance on the 12th day of September of each year, the premium period payments should be computed from the date when the policy went into effect, which was the day the policy was dated and issued, September 21st, although the application was approved September 19th.'

The facts in Haynes v. Midland Nat. Life Ins. Co., 60 S.D. 212, 244 N.W. 110, are more involved. On January 24th a husband and wife signed separate applications for a joint life insurance policy. Each application provided there would be no contract until it was approved by the company, the policy issued and delivered and the first full premium paid. The medical director upgraded the usual reate which, under the application, made the policy effective when accepted by insureds and the policies, purporting to be signed February 24th, were delivered to the insureds March 29th. This was their first notice of the upgrading of the insurance rate. The policies made reference to premiums being payable annually in advance, stated the annual premiums in the body and on the back of each policy the amounts of the annual, semi-annual, quarterly and monthly premiums.

In the applications, made a part of the policies, the words 'monthly with loan' were written after the printed words 'annual premium'. As part of this transaction and when the policies were delivered, insureds made a loan from the company for which they signed a note for $6,500, a mortgage and an assignment of the policies to the company. The note provided for the payment on July 1, 1928 and the first day of each month thereafter of $107.18 which included 'monthly premium' on the policies of $33.73 specifically identifying them by their numbers. In a letter dated June 11, 1928 the company enclosed its check for the principal of the loan to insureds, less the four monthly premiums on the policies dated February 24, 1928, which were due, as it explained, for the four months 'March, April, May, June $33.73' each, for a total of $134.92. Thereafter on July 7th and August 6, 1928 insureds made two payments of $107.18, thereby paying two monthly premiums. No payment was made in September. The policies recited: 'If any premium be not paid when due, this policy shall be void and all premiums forfeited to the company'. The insured husband died October 7, 1928.

The insurance company refused payment claiming the insurance was not then in effect, the seventh month (of grace) from February 24, 1928, the policies' date, having ended September 24, 1928. Of necessity this was based on the insurance company's claim its deduction of the four months' premiums stated in its June 11th letter were those due February, March, April and May 24th and covered the months of 'March, April, May, June' (to the 24th). Whether or not this contention was valid, the written agreement of insureds was to pay the monthly premiums in advance on the first day of each month commencing July 1, 1928 in the amounts stated both on the policies and the note. As stated, only the July 1st and August 1st payments were made and, if the written agreement prevailed, the policies were void on October 1, 1928. Plaintiffs' contention was the effective date of the policies was March 29th, the date the policies were delivered and that they were valid obligations for seven months from that date (six months' premiums paid plus one month grace) so the policies were in effect on October 7th. The court in Haynes affirmed the trial court's judgment allowing recovery on the policies, discussed its prior Lyke opinion, the McMaster and other decisions of the United States Supreme Court as well as those reaching a contrary result.

The difference between Haynes and this appeal is in Haynes the insureds agreed in a writing signed by them that they would make monthly payments of the premiums commencing July 1st and in the present action no agreement was signed by the applicant for insurance to make payments on any specific date. Here the signed application provided the company would incur no obligation until the policy was delivered to applicant and premium paid in full. This occurred after August 1, 1961; yet the company, instead of issuing its policy covering 359 days for which it accepted a premium arbitrarily backdated the policy written July 26th to July 6th and inserted July 1st as the anniversary date. It placed itself in a position of denying liability in the event of a claimed loss from July 6, 1961 to sometime after August 1, 1961 under the signed clause in the application (coverage for only 334 days) and also under the inserted July 1st anniversary date for loss occurring after that date.

It is apparent in Haynes the court laid some stress on the fact the policies fixed no date for payment of the monthly premiums yet the amounts of those premiums appeared on the policies and the amounts and dates of payment of the insurance premiums were certain in the note executed simultaneously with and as a part of the loan--life insurance transaction. The court said it 'was within the power of the insurance company, if it meant the policy to be in effect from the date of its approval by the company, to have said so'. The present policy did state a date when the policy was to be in effect, that is, when it was delivered. Whether delivery of the policy is or is not essential to completion of the contract was one of the reasons mentioned in Ahynes for computing the date from which premiums were to be computed. Some of the questions or conditions mentioned in Haynes are also apt: Was it defendant's intention to collect for that period prior to delivery when the policy was not in effect? Did it intend to insure for 359 days when it collected and did not refund or offer to refund the excess of the premium it collected for 334 days it now claims the policy was effective? As remarked...