Fowler v. State Life Ins. Co.

• Decision Date: 01 April 1935
• Docket Number: 4948
• Court: Court of Appeal of Louisiana — District of US
• Parties: FOWLER et al. v. STATE LIFE INS. CO

160 So. 139

FOWLER et al. v. STATE LIFE INS. CO

No. 4948

Court of Appeal of Louisiana, Second Circuit.

April 1, 1935

Elder & Elder and C. Emmett Barham, all of Ruston, for appellants.

Barksdale Warren & Barksdale, of Ruston, for appellee.

OPINION

MILLS Judge.

Plaintiffs, beneficiaries of William D. Fowler, deceased under a life insurance policy in the amount of $ 1,000, issued by defendant to deceased on October 12, 1929, allege that insured died November 14, 1933, and that due notice was given the insurer. That annual premiums had been paid for the years 1929, 1930, 1931, and 1932. That the premium of $ 29.99 for 1933, due October 12, 1933, was more than 31 days' past due at the time of insured's death. That the policy contains the following provisions:

"Non-forfeiture Options. After two full annual premiums have been paid on this Policy and within thirty-one days after any subsequent premium shall have become due, the owner of this Policy, by written request to the Home Office of the Company, may elect any one of the following options:

"(1) Extended Insurance To have the Policy continued for its face amount from the due date of the unpaid premium as nonparticipating term insurance without loan or cash values.

"(2) Paid-Up Policy To legally surrender the Policy to the Company for a paid-up participating Policy, payable at the same time and on the same conditions as this Policy.

"(3) Cash or Loan Value To receive the cash value upon legal surrender of the Policy to the Company, or a loan as provided for under the paragraph "Loans'.

"In the event that no such election is made, the Company will continue this Policy in force as extended insurance according to option (1) and all other options will be deemed waived."

That under these provisions plaintiffs are entitled, under the extended insurance clause, to the face value of the policy less $ 29.99 borrowed on it by the insured.

Defendant's exception of no cause or right of action being overruled, it set up in defense that on October 14, 1933, assured wrote, "I will not be able to pay annual premium. Please send me the balance of what I have coming." And again, by letter of October 30, 1933, "I don't think I can take care of my premium so please send me what I have coming." That on November 8, 1933, prior to his death, it forwarded to assured all necessary papers, receipts, and instructions under said option clauses, which have never been returned. That the above correspondence constituted an election of the cash value clause and limited the liability of defendant to same, which defendant is ready and willing to pay to the proper parties on the submission of proper proof.

After due trial had, there was judgment rejecting plaintiffs' demand, from which they have appealed.

The testimony shows that defendant received the letter of October 14, 1933, three days later, and answered it on October 24 1933, urging insured not to surrender his insurance and offering several alternatives. The letter of October 30th,...