Kukuruza v. John Hancock Mut. Life Ins. Co.

• Decision Date: 24 June 1931
• Parties: KUKURUZA v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 146

176 N.E. 788

KUKURUZA

v.JOHN HANCOCK MUT. LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1931.

Report from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action by Nickolas Kukuruza against the John Hancock Mutual Life Insurance Company. Directed verdict for defendant, and case reported.

Judgment for defendant.

W. J. Barry, of Boston, for plaintiff.

W. P. Kelley, of Boston, for defendant.

FIELD, J.

This is an action of contract to recover $5,000 on an insurance policy issued by the defendant on the life of Awdokia Kukuruza, the wife of the plaintiff, and payable to the plaintiff as beneficiary upon her death. On motion of the defendant a verdict for it was directed, and the plaintiff excepted. The case is reported on the agreement that ‘if the trial judge was right in allowing the defendant's motion and directing a verdict for the defendant, judgment is to be entered for the defendant, otherwise judgment is to be entered for the plaintiff in the sum of five thousand dollars and interest from June 6, 1927.’

The verdict was directed rightly.

According to the terms of the policy the defendant insured the life of the insured in consideration of the payment of premiums. The policy provided for the payment of premiums in quarterly instalments and provided further that except as therein ‘expressly provided, the payment of any premium or instalment thereof shall not maintain this policy in force beyond the date when the succeeding premium or instalment becomes payable.’ It was provided also that a ‘grace of thirty-one days * * * during which the policy shall remain in force, will be granted for the payment of premiums or regular instalments thereof,’ and, with limitations not now material, that the policy might be reinstated ‘after default in payment of premium’ ‘upon production of evidence of insurability satisfactory to the Company and approved at its Home Office * * * and payment of arrears of premiums.’ No modification of the policy was to be valid ‘unless made by the President, a Vice President, the Secretary or an Assistant Secretary, and no other person * * * [was] authorized to modify or waive any of the terms and conditions of this policy, nor to extend the time for payment of premiums or other moneys due to the Company, or to bind the Company by making any promise or by accepting any representation or information not contained in the application for this policy.’ Premiums were payable ‘at the Home Office of the Company, or to a duly authorized agent presenting the official receipt signed by the President or Secretary, and countersigned by the agent designated on such receipt.’

It is not disputed that the quarterly instalment due January 19, 1927, which could have been paid without lapse of the policy on or before February 20, 1927, was not paid until February 28. The plaintiff's testimony, binding upon him, was that a ‘bill’ for this instalment of premium was received ‘seven or ten’ days before January 19, 1927, that he paid this instalment to one Morris on February 28, on his personal receipt, that Morris called at the plaintiff's house on January 17, 1927, and again on February 28, when this payment was made, that later the receipt of the defendant for this instalment was received, that previous instalments were paid to Morris on his personal receipt, and subsequently receipts therefor came from the defendant's main office, and that the plaintiff ‘knew no mail came to the house that the policy had lapsed’ and ‘didn't know anything about the policy lapsing in 90 or 30 days.’ There was evidence also that within the grace period the plaintiff paid and the defendant accepted the instalment due April 19, 1927. The defendant's receipts for the premiums were in evidence. There was evidence that Morris was an agent of the defendant, but there was nothing in the policy requiring the defendant to send an agent to call for the premiums thereon.

The continuance of the defendant's obligation under the policy, except as to paidup insurance and other so called nonforfeiture options according to its terms, was conditional upon the payment of premiums as provided therein (see Jackson v. Mutual Life Ins. Co. of New York [C. C. A.] 186 F. 447), and no affirmative action by the defendant was necessary to terminate the corresponding rights of the insured under the policy upon default in the payment of an instalment of premium. Burke v. Prudential Ins. Co. of America, 221 Mass. 253, 255, 108 N. E. 1069, Ann. Cas. 1917E, 641;Rocci v. Massachusetts Accident Co., 222 Mass. 336, 342, 110 N. E. 972, Ann. Cas. 1918C, 529;Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 23 S. Ct. 126, 47 L. Ed. 204; Williston on Contracts, §§ 746, 758. No duty to inform the insured of the lapse of the policy can be inferred from the provision therein for extended term insurance upon application by the insured within ninety days from the due date of the instalment in default, as contended by the plaintiff. Nor was a notice of lapse required because of illness of the insured even if known to the defendant. See Rocci v. Massachusetts Accident Co., supra.

The evidence did not warrant a finding that before the payment of the January instalment the condition as to payment of premiums was waived by the defendant. No course of dealing between the defendant and the insured prior to the payment of this instalment was shown which would give to the insured the right to believe that late payment of instalments would be excused apart from a reinstatement of the policy as provided therein. There was evidence of default in two previous quarterly instalments-our of six due after the policy was issued-and evidence, binding upon the plaintiff, that in each instance he, purporting to act for the insured, applied for reinstatement of the policy. Evidence that an agent of the defendant collected premiums at the plaintiff's house did not warrant an inference that the defendant was required to send an agent to make such collections. Baraca v. Metropolitan Life Ins. Co., 257 Mass. 538, 540, 154 N. E. 90. It follows that, on the undisputed facts and the evidence binding upon the plaintiff, the policy was not in force at the death of the insured unless it was reinstated in accordance with its terms or unless, apart from...