Lightner v. The Prudential Insurance Company of America

• Decision Date: 08 January 1916
• Docket Number: 19,846
• Citation: 97 Kan. 97,154 P. 227
• Parties: CATHERINE LIGHTNER, Appellant, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee
• Court: Kansas Supreme Court

154 P. 227

97 Kan. 97

CATHERINE LIGHTNER, Appellant, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee

No. 19,846

Supreme Court of Kansas

January 8, 1916

Decided, January, 1916.

Appeal from Wyandotte district court, division No. 3; HUGH J. SMITH judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIFE INSURANCE--Grace in Payment of Premiums--Sundays. Under the terms of a life insurance policy giving one month--not less than 30 days--grace in the payment of premiums, when the last day of grace falls on Sunday the insured has the following day in which to make payment.

2. SAME--Nonpayment of Premiums--Forfeiture--Waiver. Forfeiture, for nonpayment of a premium due on a life insurance policy which was issued by an agent at Grand Island, Neb., and which prohibits the waiver of any of its conditions except by certain named officers and provides that no agent has power to extend the time for paying a premium or to waive any forfeiture or to bind the company by making any representation, can not be waived by statements to the insured or to the beneficiary concerning the obligations of the company or the rights of the insured under the policy made by another agent at Abilene, Kan., who had nothing to do with issuing the policy or with receiving payment of the premiums thereon and to whom no premium was paid.

3. SAME. In this case the forfeiture of the life insurance policy was not waived by the company's failure to take some affirmative action declaring such forfeiture.

4. SAME--Statute--Not Retroactive. Chapter 212 of the Laws of 1913 has no application to a life insurance policy issued in Nebraska in 1912.

Paul H. Ditzen, and L. C. True, both of Kansas City, for the appellant.

David F. Carson, of Kansas City, William C. Michaels, D. J. Haff, E. C. Meservey, and Charles W. German, all of Kansas City, Mo., for the appellee.

OPINION

MARSHALL, J.:

This is an action to recover on a life insurance policy. Judgment was rendered in favor of the defendant on a demurrer to the plaintiff's evidence. The plaintiff appeals.

The facts admitted by the pleadings and shown by the evidence are substantially as follows: In August, 1912, Carl C. Lightner obtained from the defendant a life insurance policy in the sum of $ 1000, payable on his death to Catherine E. Lightner, his wife. The policy was signed at the defendant's office in New Jersey, and was applied for by and delivered to Carl C. Lightner at Grand Island, Neb., of which state he was then a resident. The premiums were $ 10.15 each, payable quarterly on the 28th days of February, May, August and November in each year, at the home office of the company, and might be paid to an agent of the company in exchange for official receipts signed by the president or secretary and countersigned by an authorized agent of the company. If not paid when due, the policy was void, except as therein provided. In the payment of any premium a grace of one month, not less than 30 days, was allowed, during which time the policy remained in force. The last premium paid by the insured became due August 28, 1913, and was paid September 29, 1913. The premium that became due November 28, 1913, was never paid. The policy contained this provision:

"If this policy be lapsed for nonpayment of premium it will be revived any time after the date of lapse upon written application and payment of arrears of premiums with interest at the rate of five per cent per annum, . . . provided evidence of the insurability of the insured satisfactory to the company be furnished."

About January 1, 1914, the insured authorized his sister, Mrs. Glade, to pay the premium due November 28, 1913, to the company's agent at Grand Island. She had a conversation with this agent over the telephone, in which he stated that it was necessary to pay $ 11.15, the extra dollar being for the expense of a medical examination of the insured. She stated that she would send him a check for that amount. This she did not do. She wrote to the insured informing him of the agent's demand. The plaintiff answered the letter and told Mrs. Glade of a conversation she had with the company's agent at Abilene. Mrs. Glade, upon its receipt, informed the agent at Grand Island of this letter, and he replied that he could take the $ 10.15 but that he was positive the company would not accept it. About January 15, 1914, the defendant's agent at Abilene, Kan., told the plaintiff that there was no reason for paying for reexamination; that the agent at Grand Island was bound to accept the premium of $ 10.15; that the plaintiff and the insured had no cause to worry about it at all; and that he could accept the premium and send it to Grand Island but that the plaintiff could send the money herself. The premium was not paid to the agent at Abilene. The plaintiff relied upon these statements, but did not pay the premium. No written application for revival of the policy was made, nor was any evidence of the insurability of the insured furnished at any time after December 28, 1913. Another agent of the defendant at Kansas City told the plaintiff that he could accept the premium, but nothing was paid to him. The insured died April 11, 1914. At the time of paying the August premium and for some time previous thereto he and his wife lived at 543 Greeley avenue, Kansas City, Kan., which was the then place of residence of the insured. The company never notified the insured that it intended to forfeit or cancel the policy on account of nonpayment of the November premium.

1. The plaintiff contends that the defendant by accepting, on September 29, 1913, the payment due August 28, 1913, waived the right to demand payment of premiums within the strict time limits of the policy. September 28, 1913, was on Sunday. Payment of the premium on September 29 was within the one month grace allowed by the policy. (Gen. Stat. 1909, §§ 5251, 5338; Civ. Code, § 747; 38 Cyc. 329; Notes, 14 L. R. A. 120; 23 L.R.A. N.S. 759.) Payment on that day did not waive the terms of the policy as to the time of payment under the laws of this state nor under the statutes of Nebraska as set out in the defendant's answer.

2. The plaintiff's next contention is that the company waived the right to cancel the policy without notice, because the plaintiff and the insured were misled by the acts and representations of the company's agents. This concerns the conversations which the plaintiff and the insured had with the company's agents at Abilene and at Kansas City. Neither of these agents had anything to do with issuing the policy. We do not see wherein either the plaintiff or the insured had any right to rely on the statements made by either of these agents, or wherein they could bind the company by the statements made by them concerning the policy or the rights of the plaintiff or of the insured thereunder. So far as we are able to ascertain, all waivers of conditions of insurance policies have been made by the agents issuing the policies or by their successors or by superior agents or officers. It does not appear that the defendant's agent at Abilene belonged to either of these classes. The policy in controversy contained this provision:

"No condition, provision or privilege of this policy can be waived or modified in any case except by an endorsement hereon signed by the president, one of the vice-presidents the secretary, one of the assistant secretaries, the actuary, the associate actuary or one of the assistant actuaries. No modification or...