Mutual Life Ins. Co. of New York v. Cameron
| Decision Date | 04 December 1911 |
| Docket Number | 15,185 |
| Citation | 100 Miss. 604,56 So. 782 |
| Court | Mississippi Supreme Court |
| Parties | MUTUAL LIFE INS. CO. OF NEW YORK v. B. F. CAMERON |
APPEAL from the circuit court of Lauderdale county, HON. JNO. L BUCKLEY, Judge.
Suit by B. F. Cameron against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals.
The appellee was the plaintiff in the court below, and the appellant was defendant. This suit was begun in 1910, and is for the recovery of one hundred ninety-eight dollars and eighty-seven cents, alleged to be due plaintiff as the reserve on a policy of life insurance issued to him by the defendant company in the year 1888, and on which plaintiff has paid five annual premiums. The policy lapsed in 1893 for non-payment of the sixth annual premium. Subsequently plaintiff demanded of defendant the issuance of a paid-up policy, which was declined, because the application for same was not made within six months after the policy had lapsed as provided by the terms of the policy.
Plaintiff contended that under the surrender clause of the policy (set out in the opinion) that he was not entitled to demand payment of this reserve alleged to be due him until after twenty years from the date of the policy (which would have matured in twenty years had all premiums been paid), and that after the expiration of the full twenty-year period he was entitled to his full pro rata part of the reserve on his policy, as though he had paid all premiums to maturity. The defendant contends that, since plaintiff did not receive, and was not entitled to, a paid-up policy, but permitted his policy to lapse that at the end of the twenty-year period he had no policy in force, and was not entitled to participate in the reserve provided for in the surrender clause, and that any claim which he might have had was long since barred by limitation. On trial, after all the evidence was in, the defendant asked for a peremptory instruction, which was refused. The case went to the jury, and resulted in a verdict for plaintiff, from which defendant appeals.
Chapter 347, Laws of New York of 1879, contains the following provision:
Reversed.
A. S Bozeman and McWillie & Thompson, for appellant.
It will be seen from plaintiff's statement of his cause of action and his testimony that his pretended right of action is predicated on the provision of the policy (endorsed on its back) entitled "Surrender," which is in these words:
Of course, the "Surrender" terms of the policy must be read in connection with its other provisions, and at the outset, in order to understand the words "at the end of twenty years from the date of issue and the full reserve . . . and the surplus as defined above will be paid therefor in cash," we must read the preceding paragraph, entitled "Dividends." This paragraph provides that the policy-holder shall be credited with a distributive share of surplus apportioned at the end of twenty years from the date of the policy, not before then, adding in express terms "only twenty years distribution policies in force at the end of such terms, and entitled thereto, by year of issue, shall share in such distribution of the surplus and no other distribution to such policies shall be made at any previous time."
It is quite clear, since plaintiff only paid five annual premiums (as shown by the statement of his cause of action and his testimony that he never became entitled to credit for a distributive share of the surplus; his policy was forfeited in 1893, only five years after its issuance, and he was not entitled to anything under the terms of the policy contained in the paragraph entitled "dividends." This is, we submit, too plain for discussion.
Going back to the "Surrender" paragraph, we see that provision is made for surrendering policies only at the end of twenty years from their issuance and thereafter at periods of five, ten, fifteen, twenty, etc., years, the periods being five years apart; and that it is expressly provided that "No cash value will be paid for its (the policy's) surrender at any other time or date."
The terms of the "Surrender" paragraph relate only to live policies; it has no application to mere papers or to forfeited policies which have become mere papers. The "Dividends" paragraph by express terms negatives the right of forfeited policies to participate in the surplus and its terms are referred to in the "Surrender" clause by the use of the phrase "and twenty years from the date of issue" and the words "as defined above." Surely "the surplus as defined above" is not payable upon forfeited policies under the "Surrender" clause, its distribution thereto being expressly negatived by the paragraph entitled "Dividends."
The "Surrender" clause promises to pay "reserve" and "surplus" in the same language and the promise cannot possibly apply to forfeited policies as to the "surplus" without doing violence to the "Dividends" clause, and the two must be construed together, and consequently no part of the promise can be referred to forfeited policies. And besides, provision is made in the paragraph entitled "Payment of Premiums" utterly...
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New York Life Ins. Co. v. Boling
...20 N.E. 453; Peek v. New York Life Ins. Co., 219 N.W. 487; New York Life Ins. Co. v. Morris, 137 Miss. 101, 102 So. 71; Insurance Co. v. Cameron, 100 Miss. 604. Even the dividend should be proportionable, the policy was not in force at the death of the insured for that the dividend, under t......