New York Life Ins. Co. v. Pope

• Decision Date: 11 June 1902
• Citation: 68 S.W. 851,139 Ky. 567
• Parties: NEW YORK LIFE INS. CO. v. POPE et al. [1] Reported by Edward W. Hines, Esq., of the
• Court: Kentucky Court of Appeals

68 S.W. 851

139 Ky. 567

NEW YORK LIFE INS. CO. v. POPE et al. ^[1]Reported by Edward W. Hines, Esq., of the

Court of Appeals of Kentucky.

June 11, 1902

Appeal from circuit court, Bracken county.

"Not to be officially reported."

Action by Lewis C. Pope and another against the New York Life Insurance Company for rescission of a contract, and to recover damages. Judgment for plaintiffs, and defendant appeals. Reversed.

J. B Clark and Humphrey, Burnett & Humphrey, for appellant.

Geo Doniphan and H. P. Willis, for appellees.

O'REAR J.

On May 5, 1894, appellant insured the life of appellee Lewis C. Pope by its policy No. 609,010 in the sum of $2,000. Appellee paid six annual premiums of $92.20 each. His house was destroyed by fire, and he claims the policy was burned. He applied to appellant to issue to him a duplicate policy. Appellant issued the following certificate, attached to what is admitted to be a copy of the policy, except the signatures of the company's president and secretary were not attached "This certifies that a policy of insurance, No. 609,010, upon the life of Lewis C. Pope, a copy of which is hereto annexed, was issued under date of May 5, 1894, by the New York Life Insurance Company, duly signed by the proper officers thereof, and that the premiums thereon have been paid to May 5, 1899. Charles C. Whitney, Secretary." On May 5, 1899, appellee Pope paid the premium then due, and carried the policy forward to May 5, 1900. Soon after the payment of the premium of May 5, 1899, appellee Pope made application to the company for the loan of $212, and sent to the company the copy of the policy above named, duly assigned, to be held by the company as collateral security. Among the privileges or benefits of the policy are the following: "The company will make advances as loans upon this policy at the fifth or any subsequent anniversary of the insurance, within the accumulation period, under the following conditions: First. That premiums are paid in full to the time when the loan is made, including the premium for the entire insurance year then beginning. Second. That the aggregate amount of loans outstanding from the sixth to the tenth years, inclusive, shall not exceed $212.00; from the eleventh to the fifteenth years, inclusive, shall not exceed $440.00; and from the sixteenth to the twentieth years, inclusive, shall not exceed $674.00. Third. That the policy shall be duly assigned to the company as collateral security for the loans, and deposited at the home office. Fourth. That interest at the rate of 5% per annum shall be paid upon all such loans at the anniversary of the insurance next succeeding, and annually thereafter until the loans are paid off. Fifth. That the loans shall be for such time as the borrower may elect, not longer, however, than to the end of the accumulation period." The company refused to make the loan, upon the ground that the original policy was not transferred and delivered to it as collateral. It claimed that it undertook to loan the money upon that condition only; that, before appellee could enforce a compliance with its undertaking to loan the money, he must conform to the condition stipulated by the contract. Appellees brought this suit for a rescission of the contract, seeking to recover all the premiums paid and interest, and damages in addition, which were alleged to be the difference between the cost to appellee of obtaining similar insurance at his advanced age over that required by his age when the contract was made. The circuit court adjudged damages in accordance with appellee's contention, as follows: "It is shown by the pleadings and evidence in the action that the annual premium paid by plaintiff on said policy was $92.20, and that the amount of such premium he would be compelled to pay on a similar policy at the age of 51 years would be $121.74, and the difference is $29.54; and that amount per annum for a period of twenty years, the life of the policy sued on, amounting to the total amount of $590.80, is the amount plaintiff ought to recover as damages herein." The court refused to adjudge the return of the premiums paid.

This contract of insurance bound the insurer, appellant: (1) To pay $2,000, and a further contingent sum, in event of the death of appellee as stated in the policy. (2) It further bound appellant to give the insured choice of certain...