Timlin v. Equitable Life Assur. Soc'y of U.S.
| Decision Date | 11 January 1910 |
| Citation | 141 Wis. 276,124 N.W. 253 |
| Parties | TIMLIN v. EQUITABLE LIFE ASSUR. SOCIETY OF THE UNITED STATES. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.
Action by William H. Timlin against the Equitable Life Assurance Society of the United States. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
In March, 1886, the parties to this action entered into a contract of insurance, whereby the defendant, in consideration of the annual payment for 20 years of the sum of $33.26, insured the life of the plaintiff, under the semitontine plan, in the sum of $1,000; the tontine dividend period for the policy to be completed in the year 1906.
The plaintiff possessed two sheets of paper pinned together (Exhibit 1, pages A and B), and alleges that they together embody the contract. The larger sheet (Exhibit 1, page A), which was partly written and partly printed, was in the usual form of a life insurance policy. Upon the back of this sheet, among the requirements and provisions of the contract of insurance, was printed the following:
The smaller sheet, attached by a pin to the larger sheet, was partly printed and partly written and was as follows:
“The Non-Forfeitable and Incontestable Semi-Tontine Policy.
Equitable Life Assurance Society of New York.
(These estimates are the authorized figures of the society.)
Policy, $1,000.00. Age 34. Annual Premium $33.26. Total cost in 20 years, $665.20. Kind of policy......Life in 20 payments; Tontine 20 years.
If policy holder is alive and policy is in force at the end of tontine period, you are then entitled to either of the following options:
+-----------------------------------------------------------------------------+
¦1st. ¦Withdraw in cash-- ¦
+-----+-----------------------------------------------------------------------¦
¦ ¦Guaranteed legal reserve in policy is ¦$ 514.31 ¦
+-----+-------------------------------------------------------------+---------¦
¦ ¦Guaranteed surplus is estimated at ¦591.69 ¦
+-----+-------------------------------------------------------------+---------¦
¦ ¦Total, Cash ¦$1,106.00¦
+-----+-------------------------------------------------------------+---------¦
¦2nd. ¦Take paid-up policy, if in good health, for ¦$2,150.00¦
+-----+-------------------------------------------------------------+---------¦
¦3d. ¦Take a life annuity, increasing annually, beginning with ¦53.47 ¦
+-------------------------------------------------------------------+---------¦
¦And besides have your original policy carried till death, free of ¦ ¦
¦cost, for ¦ ¦
+-----------------------------------------------------------------------------+
This pays you....per cent., simple interest, or 4.40 per cent., compound interest, besides you have been insured 20 years for $1,000.00, without cost.”
Along the side of this smaller sheet was the following:
The annual payments of premiums were made as required, and at the expiration of the 20 years the plaintiff notified the defendant that he elected to take a life annuity and to have his policy carried until his death at the sum of $1,000, in accordance with the third option and upon the terms agreed upon and embodied in page B, the smaller of the two sheets of paper. The defendant refused to allow the plaintiff an annuity of more than $19.85 per year. Plaintiff brought action to enforce his claim, alleging that it had been stipulated in the agreement that the annuity, beginning at $53.47 and increasing annually, should be for life, and that he was entitled to its value, namely, $750.
There is no controversy but that plaintiff performed the conditions of the policy by furnishing a proper health certificate and by giving notice of his election. The plaintiff testified that he received the policy at about the time it bore date or shortly thereafter; that the two pages are now and have remained attached while in his possession, in the form and manner they were in when produced on the trial; that its condition is now the same as it was when he received it; that he made his payments in reliance upon the conditions and stipulations of both pages A and B, and that the agent with whom he carried on the negotiations for the policy is now dead.
This is an appeal from the judgment rendered on the verdict which was directed by the court in favor of the plaintiff.
Winkler, Flanders, Bottum & Fawsett, for appellant.
Nathan Glicksman and W. L. Gold, for respondent.
SIEBECKER, J. (after stating the facts as above).
Under the issues raised by the pleadings and the evidence the controversy between the parties presents the questions: First, were the two sheets of paper, marked “pages A and B of Plaintiff's Exhibit 1,” as produced by the plaintiff, delivered to him by the defendant? and, secondly, do they together embody the life insurance contract made by the parties?
It is contended by the defendant that there is no proof that page B was ever delivered to the plaintiff by the defendant. The defendant admits that shortly after its date it delivered the sheet marked “Page A” to the plaintiff. The plaintiff testified that no one was authorized to receive the policy for him; that he had possession of it from the time of its manual tradition to him to the time he gave it to his attorney in this action; that the sheets had always been united by being pinned together, and that the two sheets have been inclosed in the envelopes in which they were received by...
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