Washington Life Ins. Co. v. Berwald

• Decision Date: 05 November 1903
• Citation: 76 S.W. 442
• Parties: WASHINGTON LIFE INS. CO. v. BERWALD.
• Court: Texas Supreme Court

76 S.W. 442

WASHINGTON LIFE INS. CO. v. BERWALD.

Supreme Court of Texas.

November 5, 1903.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Rosa Berwald against the Washington Life Insurance Company. Judgment of the Court of Civil Appeals (72 S. W. 436) affirming a judgment for plaintiff, and defendant brings error. Affirmed.

Etheridge & Baker, for plaintiff in error. W. P. Finley and Israel Dreeben, for defendant in error.

BROWN, J.

On the 21st day of November, 1898, the Washington Life Insurance Company issued and delivered to Louis Berwald a policy of insurance upon his life in the sum of $2,000, payable to Rosa Berwald, his wife, conditioned upon the annual payment of $60.70 as premium thereon for 20 years, or until the death of the insured if it should occur before the expiration of 20 years. Among other provisions, the application for the policy, which was made a part of the contract, contained this provision: "That the policy now applied for shall be in the form in use by the company and that the contract contained in such policy and in this application shall be construed according to the law of New York, the place of the said contract being agreed to be the home office of the company." The statutes of the state of New York regulating insurance companies contains the following provision: "No life insurance company doing business in this state shall within one (1) year after default in the payment of any premium, installment or interest, declare forfeited or lapsed, any policy hereafter issued or renewed and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited or lapsed by reason of non-payment when due of any premium, interest or installment, or any portion thereof required by the terms of the policy to be paid within one (1) year from the failure to pay such premium, interest, or installment, unless a written or printed notice, stating the amount of such premium, interest, or installment or portion thereof, due on such policy, the place where it shall be paid and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation at his or her last known post office address in this state, postage paid by the corporation or by any officer thereof, or person appointed by it to collect such premium at least fifteen (15) and not more than forty five (45) days prior to the day when the same is payable. The notice shall also state that unless such premium, interest, or installment or portion thereof then due shall be paid to the corporation, or to the duly appointed agent or person authorized to collect such premium, by or before the day it falls due, the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value or paid up policy as in this chapter provided. If the payment demanded by such notice shall be made within its time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited, or declared forfeited, or lapsed, until the expiration of thirty (30) days after the mailing of such notice. The affidavit of any clerk, officer or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given. No action shall be maintained to recover under a forfeited policy, unless the same is instituted within one (1) year from the day upon which default was made in paying the premium, installment, interest or portion thereof, for which it is claimed that forfeiture issued." Louis Berwald paid the first premium when the policy was delivered, but he failed to pay the premium which fell due on the 21st day of November, 1899, about which time Reinhardt & Son, the state agents of the insurance company in Texas, called upon Berwald for the premium, and it was agreed between them that the time for the payment should be extended for 30 days. The policy contained the following provision: "No person, except the president, vice-president or secretary is authorized to make, alter or discharge a contract, or to waive forfeitures." This provision was at the bottom of the policy below the signatures of the officers of the company, and was not embraced in the conditions and benefits as indorsed upon said policy. At the end of the 30 days for which payment had been extended by Reinhardt & Son, Louis Berwald failed to pay the premium upon demand of him by the said Reinhardt & Son, and soon thereafter died without having paid it. The notice required by the statute of New York was mailed to the address of Louis Berwald at Dallas, according to the requirements of that law, but there was no notice mailed to the said Berwald, as required by the statute, concerning the payment which fell due at the end of the 30 days. After the second premium fell due, Louis Berwald was negotiating with the Pacific Mutual Life Insurance Company for a policy on his life for the sum of $2,000, payable to Rosa Berwald, his wife. There was evidence sufficient to establish the fact that Louis Berwald intended to abandon the policy issued to him by the plaintiff in error, and Harry Cerf, the agent of the Pacific Mutual Life Insurance Company, testified that Louis Berwald told him that he gave up the policy here sued upon. The Pacific Mutual Life Insurance Company issued to Louis Berwald a policy for $2,000, payable to Rosa Berwald, which was in force at the death of Louis Berwald, and that policy was collected by the defendant in error. There is no evidence to show that Rosa Berwald knew that her husband intended to or attempted to surrender the policy sued upon when he took the policy from the Pacific Mutual.

There are no questions made upon the pleading in this case, and it is unnecessary to set them out except that the defendant in error claims that the answer of the insurance company, which is attempted to set up a surrender of the policy, is not sufficient to admit the evidence upon that subject. There is a conflict of evidence upon the fact, as claimed by the defendant in error, that the time for the payment had been extended by Reinhardt & Son; also upon the...