Rouleau v. Continental Life Ins. & Inv. Co.

• Decision Date: 01 December 1914
• Docket Number: 2602
• Citation: 45 Utah 234,144 P. 1096
• Parties: ROULEAU v. CONTINENTAL LIFE INS. & INV. Co.
• Court: Utah Supreme Court

144 P. 1096

45 Utah 234

ROULEAU v. CONTINENTAL LIFE INS. & INV. Co.

No. 2602

Supreme Court of Utah

December 1, 1914

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Orphir Rouleau against the Continental Life Insurance and Investment Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

H. C Edwards and D. H. Thomas for appellant.

APPELLANT'S POINTS.

Where a life insurance company offers to extend the time for the payment of a premium on a life insurance policy or to reinstate the same after forfeiture upon conditions named by it, a waiver will not be construed as created unless the conditions of the offer are complied with. (Fidelity Mutual Ins. Co. v. Price, 77 S.W. 384 (Ky.) ; Nielsen v. Provident Sav. Life Assurance Society of N.Y., 66 P. 662 (Cal.) ; Ronald v. Mutual Reserve Fund Ins. Assn., 30 N. E. (N.Y.) 739; New York Life Ins. Co. v. Scott, 57 S.W. 677 (Texas) ; Crook v New York Life Ins. Co., 75 A. 388 (Md.) ; Union Central Life Ins. Co. v. Berlin, 41 C. C. A. 592.) In the absence of an estoppel knowledge of the facts and an intention to waive must exist, provable, of course, by the circumstances. (Ronald v. Mutual Reserve Fund Life Assn., supra.)

Booth, Lee, Badger, Rich & Parke for respondent.

RESPONDENT'S POINTS.

Forfeiture for non-payment is inserted in the policy for the benefit of the insurer and may be waived by it, and courts will find a waiver upon slight evidence. (Lyon v. Travelers' Insurance Company, 20 N.W. 829 (Mich.) .) The question of waiver is one of fact for the jury. (Taylor v. Insurance Co., 57 L. R. A. 328; Currie v. Continental Casualty Company, 126 N.W. 164; Mullan v. United States, 42 Ct. Cl. 157; Security Life & A. Co. v. Underwood, 150 S.W. 294.) A waiver is always a question of fact determinable by all the circumstances surrounding the transaction. (Krause v. Equitable Life Insurance Company, 67 N.W. 333; Hooe and Herbert v. United States, 41 Ct. Cl. 378; Cobbs v. Fire Association of Philadelphia, 36 N.W. 788.) The question as to whether said alleged letter of October 16th was actually sent is clearly one of fact for the jury. Denial of the receipt of a letter proved to have been addressed, stamped and mailed does not overcome the presumption of receipt, but requires submission to the jury. (City of Omaha v. Yancey, 135 N.W. 104; Greenwood Grocery Co. v. Canadian County Mill Elevator Co., 57 S. E. (S. C.) 867.) Where the writer of a letter testified that it was duly mailed, but its receipt is denied by the addressee, whether it is received is a question for the jury. (Lee v. Huron Indemnity Union, 97 N.W. 709 (Mich.) .) The court can treat a fact as undisputed only when it is not only unopposed by direct evidence, but is not in conflict with proper inference from other facts in evidence. (Schultz v. Schultz, 113 Mich. 502.) Whether a waiver of a forfeiture of a contract for default of a party thereto has taken place depends on the facts of the case, and ordinarily presents a question of fact, and the law ordinarily permits a liberal construction to be placed on the acts of the party waiving with a view to bringing about a waiver. (Loftus v. Insurance Company, 38 Utah 532.) The retention of the premium note and money order and the cashing of the money order and failure to return the same until after notice of the death of the insured was evidence that the appellant either waived the forfeiture or accepted the remittance as in compliance with its offer. (Schrieber v. German American Hail Insurance Company, 43 Minn. 367; Prentice v. Knickerbocker Life Insurance Company, 77 N.Y. 483.)

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This action was brought to recover on a life insurance policy. The defendant, on the 2d of October, 1905, insured the life of one Oliver Jasmin for $ 5,000. The policy provided for cash loans to be made by the company, an allowance of thirty days' grace for payment of premiums, and for reinstatement, the latter being:

"Reinstatement. Should this policy become void by reason of the non-payment of any premium, or of any indebtedness or interest thereon, it may, unless previously surrendered to the company, be reinstated at any time within three years after such default, upon the insured furnishing evidence of insurability satisfactory to the company, and paying all indebtedness and arrears of premiums, with interest thereon at a rate not exceeding 6 per cent. per annum."

The policy was assignable. It, with the knowledge and consent of the company, was assigned by the insured to the plaintiff, who had paid or advanced about all the premiums paid on the policy, and who otherwise had rendered the insured financial assistance. Both the plaintiff and the insured resided in Butte, Mont.; the company at Salt Lake City, where was its principal place of business. On September 16, 1911, there was due on the policy an annual premium of $ 190.40. Prior thereto the plaintiff, or the insured, or both, had borrowed from the company $ 480, the full amount of the then loan value of the policy. The premium due September 16, 1911, was not paid on that date. Under the terms of the policy, the last day of grace to make such payment was October 16, 1911. On the 30th of September, 1911, the manager of the company at Salt Lake City wrote the plaintiff at Butte reminding him that the premium had not been paid, and stated:

"I write you personally, because it is not the wish of the company that any of its policy holders should part with their vested interests without an opportunity to hold them. Whether or not you now see your way clear to pay, or for any other reason, it will be to your interest to write me freely by return mail. The policy is in force, by reason of the grace allowed, for one month from due date of premium. Delay in remittance beyond that time involves the risk of accident or ill health, preventing the reinstatement of this insurance for your family or estate."

The plaintiff, who testified that he was unable to read or write, except to write his name, procured a friend to write for him on the 3d day of October, 1911, acknowledging receipt of the company's letter and stating:

"If I have not answered your previous letters, the reason was that I was out of town working on some mining claims which I expect to sell in the near future. Would more than like to keep policy in force, but under present circumstances I am unable to meet premium, unless you favor me with the acceptance of my note. Hope to be favored with an answer at your earliest convenience."

To that the company replied, acknowledging receipt of it on the 5th of October, as follows:

"We will grant you an extension until December 16th on your premium, $ 190.40, provided you remit us at once the interest due on your policy loan, amounting to $ 28.80. We inclose renewal note as above, and upon receipt of same, together with interest, we will give the matter our prompt attention."

Inclosed was a note sent by the company to be signed by the plaintiff. It was dated September 16, 1911, due three months after date, payable to the defendant at its home office at Salt Lake City, and recited:

"This note is given in full payment of the premium due September 16, 1911, on the above policy," etc.

That letter and blank note in due course were received by plaintiff's wife at his residence in Butte, but he, as he testified, was then absent at his mine, twenty-four miles away, where there was no post and no means of communication with his wife. He returned to his residence on the 30th of October, and then, as he testified, for the first time saw the company's letter of October 5th and the note to be signed by him. He, on the 31st, the next day, had his wife write the company explaining the delay, procured a United States money order for $ 28.80, signed the note, and on that day mailed them to the company. It, on November 2, 1911, received them, cashed the order, retained the note, and, in acknowledging receipt of them on that date, wrote the plaintiff:

"Acknowledging receipt of your favor of the 31st ult. inclosing note for $ 190.40 due December 16, 1911, covering premium on your policy No. 2508; also money order for $ 28.80 to pay interest on policy loan. As the policy had lapsed on our books by its surrender value, it will be necessary to have Mr. Oliver Jasmin sign the inclosed application for reinstatement before the matter can be properly adjusted. Kindly have the same signed and returned to us at your early convenience."

Inclosed was a printed blank for reinstatement to be filled out and signed by the insured, stating that he had not been ill since his examination for the policy--

"except ; and have not been attended by any physician, except ; that I am now in good health; * * * that the declarations and warranties herein shall be deemed the consideration for such reinstatement if it shall be granted, and that such reinstatement, if granted, shall not take effect until all premiums in arrears shall be paid by me while in good health, and shall not constitute a precedent or in any way change or modify any of the provisions of said policy contract."

On the 1st day of November the insured was suddenly stricken with apoplexy or paralysis, and died on the 4th. He, however, as the evidence without conflict shows, was in good health and at work on the 31st of October, the day the plaintiff procured the money order and mailed it and the note to the company. The inability of the plaintiff, on his receipt of the blank application on the 4th, to procure the insured's signature thereto and his certificate of good health, of course, is apparent. So, on the 9th of November five days after the insured's death, the plaintiff...