Occidental Life Ins. Co. v. Jacobson
| Decision Date | 14 January 1914 |
| Docket Number | Civil 1313 |
| Citation | 15 Ariz. 242,137 P. 869 |
| Parties | OCCIDENTAL LIFE INSURANCE COMPANY, a Corporation, Appellant, v. ALBERTA JACOBSON, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.
The facts are stated in the opinion.
Mr Alonzo B. McMillen and Messrs. Chalmers & Kent, for Appellant.
Mr Chas. Woolf, for Appellee.
The plaintiff is the beneficiary under a policy of life insurance issued by the defendant on the life of her husband, Chris Jacobson, who died on April 11, 1912. By the terms of the policy the deceased was required to pay a premium in the sum of $155.50 in advance for one year's insurance, from the second day of November, 1909, and the further payment of a like amount on or before the second day of November of each year until twenty annual premiums had been paid. The policy further provided that upon failure to pay a premium on or before the date when due, or upon the failure to pay any premium note when due, the policy should become null and void, without any action or notice by the company. The policy also recites that thirty days' grace will be allowed for the payment of a renewal premium, on which interest will be charged at the rate of five per cent per annum, for the time during which the premium remains due and unpaid. The first and second annual premiums were duly paid by the deceased. A promissory note was made and delivered by the deceased to the defendant company in words and figures as follows:
After said note became due and payable, and on the sixth day of February, 1912, the deceased paid to the insurance company the sum of $79.80 on account of the interest and principal. This sum was credited on the note by the company as follows: No other amount whatever had been paid on account of the note when the insured died on April 11, 1912. The lower court rendered its judgment on the pleadings, and we have culled the foregoing facts from the pleadings as pertinent to a decision of the cause.
We have examined other criticisms made by appellant, but their application, in our opinion, would result in giving weight to the shadow rather than the substance of the case, and we shall confine ourselves to a solution of those questions only upon which the merits of the case must be ultimately decided and the judgment of the lower court affirmed or reversed.
It is argued by defendant that the note did not constitute a payment of the premium, and, the payment of the premium being in arrears at the time the insured died, that by the terms of the policy it became null and void, and was therefore not in force and effect. The plaintiff contends that the note was a payment of the annual premium due on the second day of November, 1911, but, granting that the note did not constitute such payment, that the defendant company, by accepting a partial payment on the note after it became due and the forfeiture provision of the policy was in force, thereby waived such forfeiture provision of the policy, and so the policy was in full force at the time of the death of the insured.
Where a forfeiture for the nonpayment of premium notes is provided for, either in the policy or the note, and the facts do not show any subsequent agreement or conduct which amount to a waiver of...
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