Rott v. Provident Life Ins. Co.
| Decision Date | 08 May 1941 |
| Docket Number | 6696 |
| Citation | 298 N.W. 17,70 N.D. 758 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Under the facts in this case it is held that a re-instatement of a life insurance policy in an amount equal to one-half of the original, accompanied by a receipt and note regarding premium, does not constitute a new contract,-the receipt and note constituting merely evidence bearing on the payment of premiums under the re-instated policy.
2. In such case it is not error to admit oral testimony regarding the payments of premiums prior to re-instatement.
3. Where there is evidence in the record from which reasonable men can draw the inference necessary to support the verdict especially when three juries and three District Judges have found that same verdict, the Supreme Court will not set aside such verdict on the ground of the insufficiency of the evidence.
Appeal from District Court, Hetinger County; Lowe, Special Judge.
Action by Fred Rott against the Provident Life Insurance Company to recover on a life policy. Verdict was in favor of the plaintiff, and the defendant appeals.
Affirmed.
C. L Young and Sullivan, Fleck & Sullivan, for appellant.
Prior or contemporaneous negotiations in reference to the terms of a contract cannot be considered in determining what the contract is as all such negotiations are deemed to have been incorporated therein, and are superseded by such written contract. Reeves & Co. v. Bruening, 13 N.D. 157, 100 N.W. 241.
Parol evidence is inadmissible to vary or contradict the terms of a written contract as between the parties thereto. Stair v. Hibbs, 52 N.D. 910, 204 N.W. 621.
When the nature of the evidence in an action for damages is such that no verdict for the plaintiff can be returned except based upon mere conjecture, surmise or speculation, it is proper for the trial court to direct a verdict for the defendant. Scherer v. Schlaberg, 18 N.D. 421, 122 N.W. 1000, 24 L.R.A.(N.S.) 520; State Bank v. Bismarck Elevator & Inv. Co., 31 N.D. 102, 153 N.W. 459; 1 Jones, Commentaries on Evidence, p. 906, § 174.
To sustain the verdict the evidence must be so reasonable and so probable that an unprejudiced man when considering all the circumstances in the case, would be justified in believing it. Hill v. Keezer, 101 A. 356; Jerke v. Delmont State Bank, 51 S.D. 623, 223 N.W. 585; Wigmore, Evidence, 2d ed. p. 2495.
Insufficiency of the evidence is a ground for a new trial, and in passing upon the motion it is for the trial court to weigh the evidence and if it is not sufficient to sustain the verdict a new trial should be ordered. West v. Wilson, 4 P.2d 471; Casey v. N.P.R. Co. 198 P. 141; Mullins v. Butte, 95 P. 597.
Burden of the evidence in the law means that logical necessity which rests on a party at any particular time during a trial to create a prima facie case in his own favor, or to overthrow one when created against him. Guild v. Moore, 32 N.D. 432, 155 N.W. 44.
The purport of a written instrument should not be permitted to be overcome by evidence of less degree of strength. Bowmaster v. Carroll, 23 F.2d 825; Land Nat. Bank v. Taylor, 1 S.W.2d 818.
After a policy has ceased to be in force because of nonpayment of the premium an agreement for a reinstatement of the policy is a new contract. . . . This new agreement is not the issuance of a policy but a contract for the continuance in force of a former contract. Wastun v. Lincoln Nat. L. Ins. Co. 12 F.2d 318.
Murray & Murray, for respondent.
GRIMSON
The plaintiff brings this action upon a life insurance policy issued by the defendant insurance company on the 21st day of June, 1929, and effective as of September 27th, 1926, upon the lives of the plaintiff and his wife, Lydia, payable to the survivor for $ 5,850, conditioned on the payment of an annual premium of $ 275.01, in advance, on the 27th day of September each year. The policy contains certain guaranteed nonforfeiture values and benefits, including extended insurance.
It appears that this policy was issued as a reinstatement of one half of a former policy of $ 11,700 dated September 27th, 1926. The reduction had been made at the request of the plaintiff and because of his inability to keep up the payments of premiums on the larger policy. The plaintiff's wife, Lydia Rott, died November 8th, 1931. The plaintiff claims to have made payment of premiums sufficient to keep the policy in force under the extended insurance provision. This the defendant denies and claims that the policy lapsed long before.
This case is before this court for the third time. Each time the verdict has been for the plaintiff. The first time judgment was reversed because of the erroneous admission in evidence of a memorandum of payments made by the plaintiff from the claimed oral admission of an officer of the defendant as to what was contained in its books. Rott v. Provident L. Ins. Co. 67 N.D. 529, 274 N.W. 849. On the second appeal the judgment was reversed on account of the uncertainty in the instructions concerning the payment of premium when effected by a note, which remained unpaid. Rott v. Provident L. Ins. Co. 69 N.D. 335, 286 N.W. 393.
Now error is alleged in the admission of testimony relating to payments of premium prior to the date of this policy, June 21st, 1929, and in instructions covering such evidence. It is claimed by the defendant that the new policy, receipt, and note issued on that date constituted a complete novation and that, therefore, no evidence of prior negotiations or payments leading up to that contract is admissible.
One of the provisions of the new policy, however, is that it should become effective as of September 27th, 1926, and that an annual premium of $ 275.01 must be paid in advance on the 27th day of September each year thereafter. In effect it is the same policy as originally issued, even to bearing the same number, except the amount is reduced one half. The defendant in its letter of June 21st, 1929, refers to it as follows: "We are in receipt of your policy No. 17232, which has been reduced to $ 5,850 insurance and which we return together with receipt for cash and note which takes care of premiums to October 27, 1929, which is the date of the maturity of the note."
This new policy is in reality a continuation of the original policy, containing the same proportional values, and bearing the same premium rate per $ 1,000 of insurance. In this case there was and is no dispute as to the amount that the insured was required to pay to keep the new policy in force. The original policy became lapsed, and there was an application for reinstatement of the policy, but for a reduced amount. This is a common practice among life insurance companies. Some of the companies evidence the reduction by appropriate indorsement on the original policy; others issue a new policy for the reduced amount, making the effective date the same as the former policy, as the defendant company did in this case. The result in either case is the same.
The receipt and the note executed at the time of the issuance of the new policy are not a part of the contract, Kroksather v. Western U.L. Ins. Co. 49 N.D. 619, 193 N.W. 48, but merely evidence of payments under the terms of the contract and of a collateral agreement regarding the payment of that specific premium. That such was the understanding of defendant is indicated in the above quotation from its letter. The oral evidence offered by the plaintiff on the matter of payment does not alter the terms of the written contract, which is the new policy itself. The promissory note was executed and delivered as a part of an agreement outside the policy, whereby the insurer granted to the insured an extension of time to make cash payment of the premium. It did not change the provisions in the policy as to payment of premiums, the period of grace in making payments, or the consequences of nonpayment, they remained precisely as they were. The stipulations in the note as to the effect of nonpayment are no different than they would have been if the extension of payment had been granted and the note made in connection with premium payments accruing long after the policy had been executed and delivered. Every promissory note is evidence of an indebtedness and constitutes a contract on the part of the maker to pay the same according to the terms thereof. But the parol evidence rule does not preclude the maker from showing that there was in fact no consideration, that the consideration failed or was inadequate, or other similar facts which have the effect of establishing that the maker does not owe, and is under no legal obligation to pay, the amount stipulated in the note.
The insurance contract did not stipulate what had been paid by the insured; it stipulated what must be paid to keep the insurance in force. The note was a separate agreement. It was an acknowledgment of indebtedness by the plaintiff to the defendant and a promise to pay the same. But the plaintiff was not precluded by the parol evidence rule from showing that he had actually paid the debt for which the note was given. If instead of giving a note, plaintiff had given a check for a like amount, and subsequently had recollected that he had paid the premium in cash, it would hardly be contended that the check, taken either by itself or together with the insurance policy, would preclude plaintiff from showing that he had paid the premium and did not owe the amount for which the check was given.
The plaintiff does not seek to avoid his...
To continue reading
Request your trial