Noble v. Southern States Mut. Life Ins. Co.

• Decision Date: 21 January 1914
• Citation: 157 Ky. 46,162 S.W. 528
• Parties: NOBLE v. SOUTHERN STATES MUT. LIFE INS. CO.
• Court: Kentucky Court of Appeals

162 S.W. 528

157 Ky. 46

NOBLE v. SOUTHERN STATES MUT. LIFE INS. CO.

Court of Appeals of Kentucky.

January 21, 1914

Appeal from Circuit Court, Jefferson County; Common Pleas Branch Fourth Division.

Action by Ida E. Noble against the Southern States Mutual Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Gibson & Crawford, of Louisville, and Clark Varnum, of Chicago Ill., for appellant.

Burnett Batson & Cary, of Louisville, for appellee.

CLAY C.

On December 21, 1907, the Southern States Mutual Life Insurance Company issued to Conway W. Noble a policy insuring his life in favor of his wife, Ida E. Noble, for $5,000. Among the material provisions of the policy are the following: "In consideration of the representations made in the application heretofore and the sum of $113.75 first quarterly premium in advance and a like sum on the 21st day of March, June and September next hereafter, insures the life of Conway W. Noble, of Cleveland, Cuyahoga county, state of Ohio (hereinafter called the insured), for the amount of $5,000, payable at the home office of the company in Charleston, West Virginia, less any indebtedness to the company and any unpaid portion of the full annual premium, immediately upon receipt of satisfactory proof of death of the insured during one year from the date hereof, to Ida E. Noble, wife of the insured or in the event of her prior death, then to the executor, administrator or assigns of the insured. This policy may be renewed at and after the expiration of the first year as a whole life participating policy, from that date for the same amount by the payment of $113.75 on the 21st day of March, June, September and December thereafter in each year. Each premium is due and payable at the home office of the company in the city of Charleston, but premiums may be paid to an authorized agent of the company in exchange for the company's receipt signed by the president or secretary and countersigned by the agent. The unpaid portion of any year's premium, if any, will be deducted in any settlement of the policy. Failure to pay any premium, when due, will avoid this policy, and forfeit all premiums to the company, except as herein provided. After one year this policy shall be indisputable for the breach of any of the provisions hereof." Conway W. Noble died December 15, 1910. Payment on the policy having been refused, this action was brought by the beneficiary, Ida E. Noble, to recover thereon. It is alleged in the petition that Conway W. Noble paid to the defendant in advance the sum of $113.75 provided in the policy, and a like sum in March, June, and September next following the issuance of said policy, and at the expiration of the first year he renewed said policy as a whole life participating policy. A demurrer being sustained to the petition, plaintiff filed an amendment pleading, in substance, that her husband did pay to the defendant $113.75 in advance provided for in said policy, and a like sum in March, June, and September next following the issuance of said policy, and that at the expiration of the first year in which said policy was in force plaintiff's intestate elected to continue said policy as a whole life policy by paying the quarterly premiums due in December, 1908, and March and June, 1909, respectively. A demurrer was sustained to the petition as amended, and plaintiff declined to plead further. Judgment was entered dismissing her petition. From that judgment this appeal is prosecuted.

It will be observed that neither the petition nor the amended petition alleges that the premiums due for December, 1909, and for March and June, 1910, were ever paid, or any fact from which payment on these occasions is necessarily implied. Nor is it shown that there was ever any waiver on the part of the company of the provision of the policy requiring the payment of such premiums. Moreover, it is not charged that the premiums already paid were sufficient to continue the policy in force.

For plaintiff it is insisted that the covenant on the part of the company to pay the policy and the covenant on the part of the insured to pay the premiums are independent, and that his mere agreement to pay the premiums after the first year construed in the light of the actual payment of certain premiums, is sufficient to indicate an intention on his part to renew the policy as a whole life policy, and, that being true, it was not necessary to pay all the premiums...