Union Cent. Life Ins. Co. v. Duvall

• Decision Date: 15 June 1898
• Citation: 46 S.W. 518
• Parties: UNION CENT. LIFE INS. CO. v. DUVALL. [1]
• Court: Kentucky Court of Appeals

46 S.W. 518

UNION CENT. LIFE INS. CO. v. DUVALL. ^[1]

Court of Appeals of Kentucky.

June 15, 1898

Appeal from circuit court, Boone county.

"Not to be officially reported."

Action by Lizzie E. Duvall against the Union Central Life Insurance Company on a policy of life insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert Ramsey, J. M. Lassing, and Ramsey, Maxwell & Ramsey, for appellant.

Gaunt &amp Downs and C. Y. Dyas, for appellee.

GUFFY J.

This appeal is prosecuted from a judgment of the Boone circuit court rendered in the action of Lizzie E. Duvall against the Union Central Life Insurance Company. The substance of the allegations contained in the petition is that Oscar F Duvall, on the 29th day of October, 1891, obtained from the appellant a policy of life insurance for the sum of $1,000 payable to himself in 20 years, if he lived that period, and in the event of his death before that time, the same should be paid to his wife, Lizzie E. Duvall. The policy issued recites the payment of $28.50 as the annual premium on said policy; but one of the conditions of said policy is that all premium notes must be paid at maturity, otherwise the policy becomes null and void without any action on the part of the company. It appears from the pleadings and evidence in this case that in fact no money was paid to the insurance company by the insured, but a note executed to C. C. Early, agent. The note was due in 11 months from the date thereof, and, shortly before it fell due, Early sent a notice to the insured, calling his attention to the time when the note would be due, and urging payment. It appears that about the time the note fell due the insured and his wife went on a visit to Gum Sulphur. Another notice or letter was sent to the insured, which is as follows: "Union Central Life Insurance Company, Kentucky Office, Rooms 211 & 212, The Commerce Building, Louisville, Ky. $28.50. Rev. O. F. Duvall, Walton, Ky. Note, $28.50. Interest, $--. Total, $--. Sir: The premium note of $28.50 on your policy No. 87,320 was due on the 29th day of September, 1892. Please remit for same by draft, post-office order, or express to C. C. Early, superintendent, rooms 211 & 212, the Commerce Building, Louisville, Ky. and you will receive the proper receipt. Your immediate attention of the above is of the utmost importance to the validity of your policy in the event of sudden misfortune.

Respectfully, C. C. Early, Superintendent." "Your note is past due. We have carried your insurance nearly a year. Why don't you pay your note? Let me hear from you. We have shown you every courtesy in our power. Can you ask more?" Across the letter is the following: "Notification of premiums due is a matter of courtesy, not of obligation. The responsibility rests entirely with the policy holder." The above letter is not dated, and was sent to Walton, and forwarded to Duvall, at Gum Sulphur. It, however, seems, that it did not reach Gum Sulphur until after the death of Duvall; but, before the reception of the letter, the appellee had forwarded by check and currency together the $28.50, as directed in the first notice, which check and money reached the said Early on the 6th day of October, 1892; and on the 8th of October the said Early returned the same to the plaintiff. It is also in proof that the insured was taken sick at Gum Sulphur, and that he was in fact too sick to transact any business, and was not conscious of the fact that the plaintiff sent the check and money in payment of said note. His death occurred on the 6th of October, 1892, which was the same day the remittance reached the said Early. It is the contention of appellant that the failure to pay the premium note of $28.50 at maturity rendered the policy and contract of insurance absolutely void. It is the contention of appellee that the holding of the note, and demanding payment after it was due, were a waiver of the forfeiture, and that the insured or the appellee had a right to pay the premium note, and keep the policy in force; and it is further insisted by appellee that the payment of the premium note was made to the appellant within five days from the time the note in question fell due.

The facts in regard to the payment seem to be that on the 4th of October the appellee had in her possession a check drawn by one Hughs on the Bank of Gum Sulphur, payable to the decedent, Oscar F. Duvall, for the sum of $25; that she indorsed the name of her husband upon the check, and with it inclosed $3.50 in money, to the agent of appellant at Louisville, which sum seems to have been received by him on the 6th of October, and on the 8th of October he returned the same. It is insisted for appellant that Mrs. Duvall had no right to indorse the name of her husband on the check, and, further, that appellant was not required to receive a check instead of money. It will be seen, however, that the letter demanding payment of the note used the following expression: "Please remit for same by draft, post-office order, or express." So far as this record shows, this check might have been collected without any difficulty, and doubtless would have been promptly paid if it had been presented by appellant.

It is suggested that the payment would not have been made except for the fact that the insured was then very sick. It is likewise suggested by appellee that appellant retained and accepted the remittance until it heard of the insured's death, and for that reason alone returned the inclosure. It will be seen by the terms of the policy that the failure to pay the premium note worked a forfeiture of the policy without any action upon the part of appellant; and it further appears from the testimony that the appellant, some time before the note fell due, sent a notice, which it was not required to do, to the insured, reminding him of the fact that the note would be due the 29th of September, and again after the note had fallen due, sent the letter copied in this opinion, in which the appellant still insisted upon the...