Jones v. Preferred Accident Ins. Co. of N.Y.

• Decision Date: 08 November 1937
• Citation: 275 N.W. 897,226 Wis. 423
• Court: Wisconsin Supreme Court
• Parties: JONES v. PREFERRED ACCIDENT INS. CO. OF NEW YORK.

226 Wis. 423

275 N.W. 897

JONES

v.PREFERRED ACCIDENT INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

Nov. 8, 1937.

Appeal from an order of the Circuit Court for Waukesha County; C. M. Davison, Judge.

Reversed.

Action by Esther W. Jones against the Preferred Accident Insurance Company of New York to recover indemnity under an accident insurance policy for the death of the insured, Frank W. Jones. Defendant demurred on the ground that the facts alleged in the complaint were insufficient to constitute a cause of action. The court overruled the demurrer, and defendant appealed from the order.Timothy J. Hannan, of Milwaukee (Marvin M. Fein, of Milwaukee, of counsel), for appellant.

Carbys & Wolf, of Milwaukee (Ferris M. White, of River Falls, of counsel), for respondent.

FRITZ, Justice.

The sole question on this appeal is whether it appears upon the face of the complaint that the accident insurance policy in question, issued to Frank W. Jones on June 4, 1933, and subsequently renewed up to June 4, 1936, was in force when he was killed accidentally on July 29, 1936, although no premium for renewal after June 4, 1936, was paid until August 22, 1936. The plaintiff contends that it appears that the policy was in force at the time of the insured's injury because of allegations in the complaint that it was the custom of the defendant over a long period of time prior to the due date of the last premium to extend credit to the insured for payment of premiums; that credit was against extended for the payment of the last premium due before Jones' death; and that by reason of that custom and the defendant's prior acceptances of delinquent premiums, and its retention of the premium paid on August 22, 1936, without notifying the plaintiff of its refusal to accept the same, the defendant became estopped from taking advantage of the nonpayment of that premium when due.

[1][2][3][4][5] The only provision in the policy in relation to the renewal thereof, reads as follows: “G. This policy may be renewed with the consent of the Company, by the payment of the premium in advance, subject, however, to all the conditions and provisions of the policy.”

That is not one of the “Standard Provisions” required in all accident and health policies, by section 204.31(3), Stats. The only provision in the policy in relation to default in the payment of the premium is the “Standard Provision” required by section 204.31(3) 3, Stats., and reads as follows: “If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of a premium by the insurer [Company] or by any of its duly authorized agents shall reinstate the policy, but only to cover loss resulting from accidental injury thereafter sustained.”

Because that provision is required by statute, it is mandatory and obligatory on the insured, as well as the insurer, and there is applicable the rule that, when the Legislature has declared “the public policy of the state to be that that which had theretofore been subject to contract between the parties shall thereafter be by certain prescribed forms and with specific conditions concerning the respective rights and duties of the parties thereto, the statutory provisions step in and control and regulate the mutual rights and obligations rather than the provisions of any contract the parties may attempt to make varying therefrom.” Williams v. Travelers' Ins. Co., 168 Wis. 456, 462, 169 N.W. 609, 610, 959.

When the legislative will is expressed in the peremptory terms of such a statute, it “is paramount and absolute, and cannot be varied or waived by the private conventions of the parties.” Whitfield v. Aetna Life Ins. Co., 205 U.S. 489, 497, 27 S.Ct. 578, 580, 51 L.Ed. 895;Berry v. Knights Templars', etc., Co. (C.C.) 46 F. 439;Straker v. Phenix Ins. Co., 101 Wis. 413, 77 N.W. 752; Williams v. Travelers Ins. Co., supra; ...