Swanson v. Continental Casualty Co.

• Decision Date: 24 May 1926
• Docket Number: No. 4737.,4737.
• Citation: 12 F.2d 410
• Parties: SWANSON v. CONTINENTAL CASUALTY CO.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.2d 410 (1926)

SWANSON v. CONTINENTAL CASUALTY CO.

No. 4737.

Circuit Court of Appeals, Ninth Circuit.

April 19, 1926.

Rehearing Denied May 24, 1926.

John Ralph Wilson, of San Francisco, Cal., for plaintiff in error.

Chas. W. Haswell, of San Francisco, Cal., for defendant in error.

Before HUNT, RUDKIN, and MORROW, Circuit Judges.

MORROW, Circuit Judge.

This is an action upon an accident insurance policy issued by the Continental Casualty Company of Indiana to one Charles J. Swanson on the 20th day of January, 1915, and renewed from year to year thereafter, to and including the year 1921, by an annual renewal certificate executed and delivered to Swanson, and claimed by the plaintiff in error to have been so renewed for the year 1922 by a renewal certificate executed and delivered to Swanson on the 20th day of January, 1922. The plaintiff in error is the beneficiary named in the policy.

Swanson met an accidental death on the 26th day of February, 1922, and at that time the renewal certificate last above mentioned was in his possession, but the annual premium of $30 had not been paid for the year 1922. It is provided in the policy of insurance that "the company shall not be liable for any loss occurring hereunder while the insured shall be in default in the payment of any premium," and that "strict compliance on the part of the insured and the beneficiary with all the provisions of this policy is a condition precedent to recovery thereunder, and any failure in this respect shall forfeit to the Company all rights to indemnity." It was also provided in each of the renewal certificates offered in evidence, commencing with that for the year 1918, that "this renewal is effective only upon a condition that a premium of $30 be paid for it as follows." In each of these renewal certificates there follows the 20th day of January for each respective year, including the certificate for 1922.

It is conceded, as above stated, that the premium for renewal for the year 1922 was never paid. But it appeared from the evidence that the first premium, due January 20, 1915, was not paid until May 1, 1915; that the second premium, due January 20, 1916, was not paid until April 10, 1916; that the third premium, due January 20, 1917, was not paid until April 30, 1917; that the fourth premium, due January 20, 1918, was not paid until March 21, 1918; that the fifth premium, due January 20, 1919, was not paid until February 11, 1919; that the sixth premium, due January 20, 1920, was paid in advance on January 15, 1920, this being the only premium which was not paid after default; that the seventh premium, due January 20, 1921, was not paid until March 28, 1921; that the eighth premium, due January 20, 1922, had not been paid at the time of Swanson's death on February 26, 1922.

It was contended by the plaintiff that the execution and delivery by the defendant of the renewal certificate dated January 20, 1922, was a renewal of said insurance by the defendant for the year 1922, and that the said policy of insurance was in full force and effect at the time of Swanson's death on February 26, 1922; that defendant, by its course of dealing with Swanson with respect to premium renewals, had led Swanson to believe that the payment of said premium could be made after the date specified in said renewal...