Martin v. New York Life Ins. Co.
| Decision Date | 17 November 1923 |
| Docket Number | 2745. |
| Parties | MARTIN v. NEW YORK LIFE INS. CO. |
| Court | New Mexico Supreme Court |
On Rehearing March 30, 1925.
Syllabus by the Court..
Where the record contains a bill of exceptions, evidence not contained therein, whether it be oral or written, cannot be considered upon appeal.
Where the plaintiff makes out a prima facie case, by introducing evidence which forms an issue to be submitted to the jury and nothing appears in the record tending to controvert such case, it is error to direct a verdict for the defendant.
The provision contained within an insurance policy giving to the insurer the right to forfeit the policy upon default in the payment of a premium thereon is for the protection of the insurer and may be waived by it.
Where a worthless check is sent by the insured to the insurer with which to pay a premium due upon a policy, it may be accepted by the insurer as payment of such premium, and when so accepted, the right to declare a forfeiture for nonpayment of such premium is waived, even though such check is dishonored by the bank upon which it is drawn.
The mere sending of a worthless check of the insured to the insurer, with which to pay such a premium, in the absence of any fact or circumstance indicating it is received by the insurer as payment, does not constitute a waiver of the right of forfeiture for nonpayment of such premium.
Where the insurer receives the personal check of the insured tendered in payment of a premium due upon a policy, and the insurer issues and delivers its official receipt acknowledging payment, the burden rests upon it to show that such check was not received as payment, but for collection.
Forfeitures are not favored, and hence the slightest evidence indicating a waiver of such right will support a finding to that effect.
The provision of a policy that it shall be effective from and after a certain named date, which is prior to the date of its issuance, is valid, as the parties have the right to so agree between themselves, and such a provision will be given effect in the absence of anything showing a contrary intention or understanding.
On Rehearing.
When physical evidence renders it apparent that certain pages of the bill of exceptions have been inadvertently transposed, so as to follow, instead of precede, certificate of the court stenographer, and that it is plain such transposed pages are in fact a part of the bill of exceptions, they will be so considered.
It was within the discretion of the court to require all of the material portions of a letter to be read, when the plaintiff offers a portion thereof.
It was error for the court to admit in evidence, over objection of plaintiff, a letter from the defendant insurance company addressed to the deceased husband of the plaintiff containing self-serving declarations; there being no proof that said letter had not been answered by the addressee.
The court erred in admitting certain unauthenticated markings and indorsements appearing upon a check received in evidence, even though the check was properly received in evidence. The indorsements did not prove themselves.
Decision in former opinion approved.
Appeal from District Court, Bernalillo County; Hickey, Judge.
Suit by Olga A. Martin against the New York Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded with directions.
George C. Taylor, of Albuquerque, for appellant.
Francis C. Wilson, of Santa Fé, for appellee.
The appellant, Olga A. Martin, who is the surviving widow of Frank A. Martin, deceased, and the beneficiary in the policy of insurance herein referred to, instituted this suit against the appellee, New York Life Insurance Company, to recover judgment upon a policy of insurance issued by it upon the life of Frank A. Martin, under date of October 18, 1907, in the principal sum of $2,000, less the sum of $276, which is admitted to have been loaned to the insured during his lifetime.
The appellee admitted the issuance of the policy, and that all premiums thereon up to and including the year 1914 had been duly paid. It pleaded by way of affirmative defense that the annual premium due on October 18, 1915, was not paid; that, by the terms of the policy, it was extended for a period of three years, plus 329 days, which extended time expired about 7 days prior to the death of the insured, which occurred on September 22, 1919. The nonpayment of the premium referred to was denied by the appellant.
The case was tried to a jury, and, at the close of the appellant's case, the appellee moved for a directed verdict in its favor, because the evidence showed that the premium due on October 18, 1915, was not paid, and that the policy had expired prior to the death of the deceased. This motion was granted and the directed verdict returned upon which judgment was rendered.
The appellant urges for a reversal of the case that the court erred in directing such verdict because she had made out a prima facie case, and had introduced evidence which formed an issue to be submitted to the jury. In this connection, appellant testified that she had delivered to her attorney a number of receipts for annual premiums paid upon this policy; her attorney testified that he had received from her the official receipt of the appellee evidencing payment of the annual premium due on October 18, 1915; that he had seen it and had placed it in his safe; that it had been lost and could not be found. This evidence, standing alone, made out a prima facie case for the appellant, as there seems to be no dispute but that the policy was, by its terms and provisions, extended in force beyond the date on which the insured died, if the premium in question was paid. The appellee, to overcome this prima facie case, relies upon a certain check, which, it contends, was transmitted by the deceased to the appellee with which to pay such premium; that said check was not paid, but was returned unpaid by the bank upon which it was drawn on account of insufficient funds with which to pay it. The difficulty which surrounds the appellee is that the check is not contained within the bill of exceptions. What purports upon its face to be such check is to be found in the record proper, but not within the bill of exceptions. This check is but a part of the evidence, and cannot be considered by us unless it is brought here as a part of the bill of exceptions, duly authenticated by the certificate of the trial judge, his successor in office, or some other judge designated for that purpose as provided by law. Without such a certificate, there is no verity or authenticity to evidence, whether it be oral or written. Oliver Typewriter Co. v. Burtner & Ramsey, 17 N.M. 354, 128 P. 62; Mundy v. Irwin, 19 N.M. 170, 141 P. 877; Rogers v. Crawford, 22 N.M. 365, 161 P. 1184; Cox v. Douglas Candy Co., 22 N.M. 410, 163 P. 251; State v. Wright (N. M.) 213 P. 1029.
The appellant offered in evidence part of a certain letter and desired to read to the jury only such portion so offered. The trial court held that, if she offered any part of it, the whole must be offered and read. This is assigned as error, but we cannot review the question, because the letter referred to is not contained within the bill of exceptions. What purports to be such letter is shown in the record proper, but not within the bill of exceptions. What we have hereinbefore said controls us here. The question is not reviewable, as the letter is not properly before us.
Other questions are discussed by counsel in their briefs; but the condition of the record does not present them for determination upon this appeal. Obviously, however, these will be presented to the trial court upon the subsequent trial of the case, and, as they are perhaps controlling, we think it best to discuss them for the guidance of the court and counsel as well as the profession generally.
Much is said by counsel with regard to the effect of payment of an annual premium by the personal check of the insured which is dishonored by the bank upon which it is drawn, and our discussion upon this subject will be predicated upon the assumption that the deceased obtained the official receipt of the appellee, evidencing the payment of the annual premium due on October 18, 1915, concerning which the appellant and her attorney testified, by transmitting to the appellee company his personal check, which was not paid by the bank upon which it was drawn, and was returned to the deceased by the appellee with a demand that such receipt be returned to it.
A contract of insurance like this one is one extending throughout the lifetime of the insured, and which matures upon his death, with the obligation then resting upon the insurer to discharge it by making payment in the sum and manner and to the person entitled thereto according to the terms of such contract. This obligation is conditioned upon the payment to the insurer of certain sums at fixed intervals. These payments are commonly denominated premiums and their payments are necessary in order to bind the insurer to discharge its obligations imposed by the contract. The insurer has the right to forfeit and declare annulled the entire contract upon default being made in such payments. It has the further right to determine how and in what manner they shall be made. It may accept post office or express money order, bank draft, or the personal check of the insured as payment, and it may demand cash in settlement and payment thereof, but these are all rights of the insurer which may be waived by it. If it receives and accepts the personal check of the insured as payment of the premium due, and issues its official receipt evidencing such payment,...
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Nichols v. Sefcik
...as being self serving and hearsay. Under somewhat different circumstances this Court in the case of Martin v. New York Life Ins. Co., 30 N.M. 400, 234 P. 673, 40 A.L.R. 406, held it was error for the court to admit a letter from defendant addressed to plaintiff's decedent containing self se......