Simpkins v. Business Men's Assur. Co. of America
| Decision Date | 26 June 1948 |
| Parties | SIMPKINS v. BUSINESS MEN'S ASSUR. CO. OF AMERICA. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court October 16, 1948.
Appeal in Error from Circuit Court, Davidson County; Byrd Douglas Judge.
Suit on a life policy by Gracie Wayman Simpkins against Business Men's Assurance Company of America. From an adverse judgment, defendant appeals in error.
Judgment affirmed.
Sydney F. Keeble, Allen M. Steele, Thomas H Malone, III and Trabue & Sturdivant, all of Nashville, for plaintiff in error.
Jack Norman and Louis Farrell, Jr., both of Nashville, for defendant in error.
On November 21, 1945, Business Men's Assurance Company of America issued its policy of insurance upon the life of Elihue Simpkins. Gracie Wayman Simpkins, mother of insured was named beneficiary.
On March 25, 1946, insured lost his life in a fire. Demand was made for payment of the amount claimed to be due under the policy. Payment was refused upon the ground that the policy had lapsed before the death of insured.
Plaintiff brought this suit to recover under the policy and alleged in her declaration the policy was in full force and effect; the death of insured was by accidental means; the refusal of insurer to pay upon demand; and judgment was sought for the amount due under the policy contract.
Insurer pleaded specially that the policy had lapsed before the death of insured; and, also, pleaded the general issue.
There is no controversy about the facts. The policy provides:
'This policy is issued in consideration of an application for insurance, a copy of which is attached hereto and made a part hereof, and the payment in advance of Nine and 40/100ths dollars as the premium for term insurance ending on the 21st day of December, 1945, and the legal reserve, if any, and in consideration of the further payment of a like amount on that date and on the corresponding day of each month in every year thereafter, until the maturity of the policy as an endowment or the prior death of the insured.'
The statement in the face of the policy that the monthly premium is $9.40 is erroneous. The parties stipulated the correct monthly payment was $14.22.
The premium which was due on January 21, 1946, was paid by insured on January 17, 1946.
The premium which was due on February 21, 1946, was never paid.
The policy contains these provisions:
'A grace period of thirty-one days without interest will be allowed for the payment of each premium after the first.
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'Upon failure to pay a premium when due or within the grace period, this policy shall immediately cease and become void without any action or notice by the Company, and all rights shall be forfeited to the Company except as otherwise provided in this policy.'
Insurer mailed two notices to insured advising that the premium due February 21, 1946, had not been paid; and insured received these notices before the grace period expired.
Thirty-one days from February 21, 1946, was March 24, 1946; and this day was on Sunday. The insurer's local office in Nashville, Tennessee, and its home office in Kansas City, Missouri, were closed on Sunday, March 24, 1946. The local agents of insurer were in Nashville, Tennessee, on Sunday, March 24, 1946, and would have accepted the premium had it been tendered to them on that day. The policy contains no provision which relates to the due date of the premium or the expiration of the grace period when those days fall on Sunday.
When insured was accidentally burned to death about four or five o'clock on Monday morning, March 25, 1946, the beneficiary tendered the premium of $14.22 to insurer on that same day. The tender was refused.
The trial judge entered judgment for the beneficiary upon the policy with interest. Insurer appealed in error to this court.
There is only one question before this court: When the thirty-one days grace period expired on Sunday, could the policy be kept in force by paying the premium on the following Monday?
An insurance policy continues in force until the expiration of the days of grace provided. Wolfe v. Mut. Life Ins. Co., 3 Tenn.App. 199.
If a contract of insurance is ambiguous in its terms it must be construed most favorably to insured; but plain provisions of the policy, taken as a whole, must be enforced as stated. Great Eastern Casualty Co. v. Solinsky, 150 Tenn. 206, 263 S.W. 71, 35 A.L.R. 1007; Inman v. Life & Accident Ins. Co., 164 Tenn. 12, 45 S.W.2d 1073; Berry v. Prudential Ins. Co. of America,
23 Tenn.App. 485, 134 S.W.2d 886; Travelers Ins. Co. v. Ansley, 22 Tenn.App. 456, 124 S.W.2d 37.
'Ambiguous' is defined in 3 C.J.S., page 1037, as follows:
'The word has been defined as capable of being understood in more senses than one; obscure in meaning through indefiniteness of expression; having a double meaning; doubtful and uncertain; meaning unascertainable within the four corners of the instrument; open to construction; reasonably susceptible of different constructions; uncertain because susceptible of more than one meaning. Its synonyms have been said to be 'doubtful,' 'equivocal,' 'indefinite,' 'indeterminate,' 'indistinct,' 'uncertain,' and 'unsettled."
In Couch Cyclopedia of Insurance Law, volume 3, page 2047, section 645a, this rule is stated:
Concerning Sunday we have the following statutory law in this state:
Code Section 11:
'The time within which any act provided by law is to be done, shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.'
Code Section 7518:
'Where the day, or the last day, for doing any act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day.'
Code Section 5253:
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