The policy sued on contained a table showing the amount of the savings accumulations at the end of each year it had been kept in force. The insured not only had this information, but he was advised that this value at the time of the correspondence was $140. The premium was due May 3, with thirty days grace. Did the insured write, on May 8th, that he intended to withdraw his savings, less the premium then due but not delinquent? He did not. He stated that he wanted "to cash in all of my accumulated savings fund which I can cash in up to date," and that he wanted this money as soon as possible. Is there any indication that he wished to pay the premium then due and have the balance remaining sent him? The insurer did not so interpret this letter; nor do I.
The reply to this letter told the insured how much he might withdraw, but urged him not to do it. Still urging *Page 342 the insured to keep the insurance in force, the letter inquired how he would do so if he withdrew his accumulations.
The letter from the insurer failed to persuade the insured not to withdraw his accumulations, and he executed and returned the form for withdrawal, and received a check for the full amount of the accumulations, which was enclosed in a letter advising him that the check "refunds to you the savings fund accumulations to the credit of your above-mentioned policy." Can the insured, or his beneficiary, now be heard to say that he did not know that the plain and unequivocal direction contained in his first letter had been complied with? He had asked for "all of my accumulated savings," had been told what they were, and had been advised not to withdraw them. But he had the right to do this, and he did it; and, having withdrawn and appropriated these savings, he could not expect his premium to be paid with the money thus withdrawn and appropriated.
Now, this policy did contain clause (c), set out in the majority opinion, and it was there provided that, "without action on the part of the insured," the savings fund accumulation should be used to pay premiums. What does this language mean? Plainly that, if the insured did not otherwise direct, the accumulations would be applied to premiums so long as they sufficed to pay them. It certainly did not mean that the accumulations were to be so used when the insured had otherwise directed, that direction being to send him the money, and to do so at once. Certainly, he could not withdraw the money and pay the premiums with it, too, no more than he could eat his pie and have it, too.
The insurer made no mistake. It only paid the insured what he was entitled to withdraw, and had the right to demand, and what he did demand, and did receive.
I therefore dissent, very respectfully, but very earnestly, and am authorized to say that Justice McHANEY concurs in this dissent. *Page 343