Jones v. Jefferson Standard Life Ins. Co., 7640.

• Decision Date: 31 October 1935
• Docket Number: No. 7640.,7640.
• Parties: JONES v. JEFFERSON STANDARD LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

79 F.2d 640 (1935)

JONES v. JEFFERSON STANDARD LIFE INS. CO.^*

No. 7640.

Circuit Court of Appeals, Fifth Circuit.

October 31, 1935.

R. Douglas Feagin and J. E. Feagin, both of Macon, Ga., for appellant.

Grover Middlebrooks, of Atlanta, Ga., for appellee.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

The court sustained a demurrer to appellant's petition in a suit on a policy of insurance on the life of her deceased husband, and dismissed the suit; the grounds stated in the demurrer being: (1) That plaintiff's petition sets forth no cause of action against the defendant; and (2) that plaintiff's petition shows on its face that the policy of insurance sued on had lapsed prior to the date of the insured's death on April 22, 1934, because of the nonpayment of the second premium on said policy, which fell due on February 27, 1934, and that, therefore, at the time of the death of the insured, said policy was not in force or effect, and had no value whatsoever.

Copies of the policy sued on and of the application in pursuance of which it was issued were made exhibits to the petition and parts thereof. The insured's application was made and dated May 12, 1933. That application correctly disclosed insured's age, stating that he was born on August 18, 1897, and the answer to the question "Nearest birthday. Age," being, "35." To the question contained in the application, "State here any special feature desired, such as dating of policy, short term, premium, of time settlements, etc.," the answer was, "Date Policy Feby. 17, 1933. Age 35." Allegations of the petition showed the following: The policy sued on was delivered to the insured on June 20, 1933, at which time the insured paid the first year's premium, $54.78. The insured died on or about April 22, 1934. The insured notified the defendant (appellee) by letter dated March 20, 1934, that he had paid the last premium June 20, and that the next premium was not due until June 20, 1934. The petition alleged: "The defendant did not answer this letter, and acquiesced in same." The policy sued on contains the following:

"This insurance is granted in consideration of the application for this policy and of Fifty-Four and 78/100 Dollars, being the premium for the term of the first policy year, and the payment of a like sum to the said Company on each anniversary of the date of this policy as shown below. * * *

"In Witness Whereof, the Jefferson Standard Life Insurance Company has caused this contract to be signed by its President and its Secretary, at its home Office in the City of Greensboro, N. C., on this the 17th day of February, One Thousand Nine Hundred and Thirty Three, referred to above as the date of this policy." (The just set out provision is the concluding clause of the body of the policy).

"In the payment of any premium under this policy, or installment thereof provided herein, except the first, a grace of one month (not less than thirty days) will be allowed, subject to an interest charge of six per cent. * * *

"This policy does not take effect until the first annual premium, or installment thereof, shall have been actually paid during the lifetime and good health of the Insured. Subsequent premiums are payable in advance to the Company at its home office, but may be paid to an authorized agent in exchange for an official receipt signed by the Secretary and countersigned by the agent. * * *

"In case of default in the payment of any premium, or installment of premium, or notice given for any renewal premium or portion thereof, this policy shall cease and determine and the payment received hereon shall become the property of the Company, except as specified on the second page hereof. The insurance provided for in this policy is based upon the payment of premium annually in advance. * * *

"The Company will admit age upon satisfactory proof; otherwise if age is not truly stated in the application, the benefits hereunder will be what the premiums actually paid would have purchased at the true age."

A paper containing the following was attached to the policy at the time it was delivered to the insured:

"The premiums hereunder shall be payable annually as provided on the first page hereof, and the policy shall take effect upon payment of the first annual premium if paid during the lifetime and good health of the Insured. Receipt is hereby acknowledged of the first annual premium.

"Jefferson Standard Life Insurance Company."

The petition asserted the claim that the payment by the...