Mackie v. Prudential Insurance Company of America

• Decision Date: 15 April 1942
• Docket Number: 19-1942
• Citation: 148 Pa.Super. 498,25 A.2d 736
• Parties: Mackie, Appellant, v. Prudential Insurance Company of America
• Court: Pennsylvania Superior Court

25 A.2d 736

148 Pa.Super. 498

Mackie, Appellant, v. Prudential Insurance Company of America

No. 19-1942

Superior Court of Pennsylvania

April 15, 1942

Argued March 12, 1942

Appeal from judgment of C. P. Lackawanna Co., Jan. T., 1941, No 838, in case of Lucena Mackie v. The Prudential Insurance Company of America.

Assumpsit.

The facts are stated in the opinion of the Superior Court.

Affidavit of defense raising questions of law sustained and judgment entered for defendant, opinion by Hoban, J. Plaintiff appealed.

Error assigned, among others, was the action of the court below in deciding the questions of law in defendant's favor.

Judgment reversed with a procedendo.

John W Bour, for appellant.

A. F Vosburg, of Vosburg & Vosburg, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes and Kenworthey, JJ.

OPINION

Kenworthey, J.

The court entered judgment for defendant on an affidavit of defense raising questions of law. Plaintiff appeals.

The action is on a life insurance policy. For our purposes, the facts are those alleged in the statement of claim. The policy was issued November 3, 1930 on the life of Ernest O. David, appellant's father. All premiums were paid monthly until, and including, the one due November 3, 1934. The only payment after that date was made on March 7, 1935, when the insured made a payment of $ 9.06, which was sufficient to pay two monthly premiums ($ 4.53 each). Appellee credited this payment to the premiums due December 3, 1934 and January 3, 1935. The insured died March 29, 1935. After receiving notice of the death, appellee notified appellant that the policy "was cancelled for non-payment of the monthly premium due February 3, 1935 and was null and void on date of death."

Appellant contends that by acceptance of the premium on March 7, 1935, appellee "must be held to have waived payment of the premium due February 3, 1935, or to have waived forfeiture for non-payment of the same and is estopped from asserting said premium was not paid, or from forfeiting said policy for the nonpayment of the same."

The policy provides: "The payment of any premium shall not maintain the Policy in force beyond the date when the next payment becomes due, except as to the benefits provided for herein after default in premium payment;" and, "If this Policy be lapsed for non-payment of premium it will be reinstated at any time after the date of lapse upon written application and payment of arrears of premiums .... and provided evidence of the insurability of the Insured satisfactory to the Company be furnished." No steps were taken to have the policy reinstated. See Lang v. Bowen, 125 Pa.Super. 226, 189 A. 743.

The sole question is whether there was a waiver or an estoppel.

Although the law appears to be otherwise in some jurisdictions, ^[1] this court has held that the acceptance by an insurance company of some, but less than all the premiums which are delinquent, will not of itself operate as a waiver of the company's right of forfeiture for lapse of premiums. In Selby v. Equitable Beneficial Mutual Life Ins. Co., 143 Pa.Super. 131, 17 A.2d 696, we said at p. 135 (Parker, J.): "The mere payment of a part of the arrears of itself formed no basis for a claim that the company waived the conditions of the policy. The fair inference from the facts proven is that [the insured] did not wish to get any farther in default so that when she had funds available she could bring the payments up to date."

By accepting the payment on March 7, applying it to the premiums due December 3 and January 3, and declaring the policy cancelled for failure to pay the February 3 premium, appellee may have waived the right of forfeiture for the December 3 and January 3 defaults. See Poles v State...