Myers v. Jefferson Standard Life Ins. Co.

• Decision Date: 24 January 1925
• Docket Number: (No. 10920.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 271 S.W. 217
• Parties: MYERS v. JEFFERSON STANDARD LIFE INS. CO.
• Court: Texas Court of Appeals

Page 217

271 S.W. 217

MYERS v. JEFFERSON STANDARD LIFE INS. CO.

(No. 10920.)^*

Court of Civil Appeals of Texas. Fort Worth.

January 24, 1925.

Appellee's Rehearing Denied March 7, 1925.

Appellant's Rehearing Granted March 7, 1925.

Appellee's Second Rehearing Denied April 4, 1925.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Hazel Hope Myers against the Jefferson Standard Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered on rehearing.

Stone & Guleke, of Amarillo, for appellant.

Moses & Rowe, of Fort Worth, for appellee.

CONNER, C. J.

This is an appeal from a judgment denying the relief sought by appellant in a suit instituted by her to recover stipulated sums of money alleged to be due by virtue of the terms of a policy of insurance issued for her benefit by the appellee company, dated September 7, 1921, and covering the life of plaintiff's husband, Clarence Earl Myers, who was shot and killed by one Goldie White, an alleged insane person, on March 28, 1923.

The question of whether the court properly denied the plaintiff's prayer for recovery involves the construction of certain provisions hereinafter noticed of the contract of insurance. The facts are undisputed. Upon due application and in consideration of "the premium of ninety-one and 29/100 dollars, receipt of which is hereby acknowledged, and of the payment of a like sum each year on each anniversary hereof until thirty-two full years' premiums have been paid, or until prior death of insured, should that happen sooner, does hereby insure Clarence Earl Myers, hereinafter called the insured, in the sum of three thousand dollars."

The appellee company in due order and time issued and forwarded to its agent the policy declared upon. The policy bore the date of the application, to wit, September 7, 1921, but was not actually delivered to the insured until October 4, 1921, at which time he paid the first annual premium in cash, and by note later paid in accordance with its terms.

The policy contained the following further provisions deemed pertinent at this point, to wit:

"In lieu of the premium stated above, the company will accept semiannual installments of $47.46, or quarterly installments of $24.18, but the payment of any such installment shall not continue this policy in force beyond the date the next installment is due. * * * This policy does not take effect until the first annual premium shall have been actually paid during the lifetime and good health of the insured. * * *

"After this policy shall have been in force one full year from the date hereof it shall be incontestable for any cause except for nonpayment of premium.

"Should this policy cease and determine for nonpayment of any premium, it may be reinstated at any time by the payment of the defaulted premiums with six per cent. interest added and by furnishing evidence of insurability satisfactory to the company.

"In the payment of any premium under this policy, except the first, a grace of one month (not less than thirty days) will be allowed, subject to an interest charge of six per cent. * * *

"In case of default in the payment of any premium or installment of premium or note given for any premium or portion thereof, this policy shall cease and determine, and the payments received herein shall become the property of the company, except as specified on second page hereof.

"The insurance provided for in this policy is based upon the payments of premiums annually, in advance."

The appellee admitted in its answer that the first annual and one quarterly premium were paid, which, it contends, together with the 30 days of grace allowed under the terms of the policy, continued its obligatory force until January 7, 1923, and no longer, at which time, there being no further payments of premiums, the company declared the policy forfeited, and sent to the insured for execution an application for reinstatement, to which the insured was, within a specified time, entitled under the terms of the policy and the company's rules. The application for reinstatement of the policy sent to the insured, and which he was required to execute in order to be reinstated, was dated January 30, 1923, and reads as follows:

"Jefferson Standard Life Insurance Company, Greensboro, North Carolina.

"Application for Reinstatement of Lapsed Policy.

"Policy No. 149081. Name, Clarence E. Myers. Amount, $3,000.

"Part I.

"To be Filled in and Signed within Ninety Days from Due Date of Premium.

"Whereas, policy above numbered, lapsed by reason of nonpayment of premium, or note, due on December 7, 1922, I hereby make application for reinstatement of said policy, and warrant answers to questions below to be true.

"(1) What sickness, ailment, or injury since the day of examination for above-numbered policy, have you had? (Disease or injury.) (Date.) (Duration.)

"(2) Have you been associated during the past three years with a person who has had consumption, or have you been living or staying in a dwelling, store or office occupied during said past three years by such diseased person? (Date.) (Duration.)

"(3) Have you been attended or prescribed for by any physician since examination for above policy? (Disease or injury.) (Date.) (Name and address of doctor.)

"(4) Have you ever been declined for insurance by any company or association? (Company.) (Approximate date.) * * *

"(7) Do you warrant and declare that you are of sound constitution, temperate, and in good health?"

"I hereby ratify and confirm all the statements made in the application upon which the above-numbered policy was issued, except such as are modified by representations or agreements herein contained, and hereby make the said application and this application for reinstatement alike parts of the contracts of insurance, and agree that in the event of self-destruction, whether sane or insane, within one year from the date of approval by the company of this application for reinstatement, the amount payable as death benefit under said policy shall be equal to the premiums paid on said policy, and no more.

"I further agree that said policy shall not be revived until this application shall be approved by the medical director of the company, and that, if any of the statements of representations contained herein shall prove to be incomplete or untrue, then this reinstatement shall be ipso facto null and void.

"I further agree that the acceptance of this certificate and the reinstatement of said policy shall not be taken as a precedent for future similar action on the part of the company.

"Part II.

"Report of Examining Physician.

"(Applicant's full name.) (Address.) (Date of birth.) (Age.)

"(1) Is applicant related to you by blood or marriage? (If so, let some one else make this examination.)

"(2) Does his health show any impairment from any previous habit, illness or injury?

"(3) Has he any impairment of sight or hearing?

"(4) What is his weight?

"(5) What is his height?

"(6) Circumference of chest under vest, at rest?

"(7) Circumference of abdomen?

"(8) Are percussion and auscultation normal over both lungs?

"(9) Is heart's action regular and sounds normal?

"(10) What is pulse rate standing?

"(11) Is there any evidence of disease of liver or spleen?

"(12) Do you find the function of any organ abnormal? (If so, explain.)

"To be taken in all cases:

"(13) Blood pressure. (Name instrument used.)

"(14) Urinalysis: Specific gravity? Reaction? Albumin? Sugar?

"(15) Do you recommend the applicant for reinstatement?"

The actuary of the company testified that:

"The Jefferson Standard Life Insurance Company would not have reinstated the policy, except upon compliance with the conditions set forth in said application for reinstatement."

There is no evidence showing, or tending to show, that the insured paid or offered to pay any premium after his payment of the quarterly premium on October 4, 1922, or that he complied with, or attempted to comply with, the requirements of reinstatement application.

Upon the foregoing state of the record, it is insisted by the appellee company, in support of the judgment below, that the premiums under the terms of said policy fell due on the specific date of September 7th of each year after the date of the policy, or inasmuch as the premiums subsequent to the initial premium had been by insured elected to be paid quarterly, that they were payable on the specific dates of September 7, December 7, March 7, and June 7 of each year, and that those specific dates were of the essence of the contract, and that a failure to pay on those specific dates defeated the policy.

It is the contention of appellant, on the contrary, that the policy under its terms, and under the terms of the application therefor, did not take effect as a contract until October 4, 1921, upon which day the policy was actually delivered to the insured and the first year's premium paid by him, and that hence from that date the insured was entitled to one full year's protection, to wit, until October 4, 1922, which was continued by the insured's quarterly payment and the 30 days of grace allowed him under the terms of the policy, until February 4, 1923. It is apparent that if appellee's contention is correct, the policy under consideration had lapsed and was of no force and effect at the time of the death of insured. But that if appellant's construction of the contract is correct, then the appellee company was not authorized to forfeit the policy at the time it did; that by reason of such premature forfeiture and requirements for reinstatement, the insured was excused from tendering further quarterly payments of premium until February 4, 1923; and that hence at the time of insured's death the policy was effective and the appellant entitled to recover.

Hence, in the presentation of the case to this court, the views of each litigant seems to be expressed by the following statement...