[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 278
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 279 The proviso in the policy for its continuance in force beyond the 15th day of July, 1862, rendered it indispensable that the requisite premium for another year should have been paid on or before that day; its payment was manifestly a condition precedent to the continuance of the policy for another year. (Ruse v.The National Life Ins. Co., 23, N.Y. 516, 518.) The payment of the premium was an act which could have been performed by any other person than the plaintiff's husband; its payment did not necessarily depend upon his continued capacity or existence; and hence, although he was, shortly prior to the expiration of the policy, when about to pay the premium, rendered incapable by the act of God, she is without the rule that relieves a party from the consequences of an omission to do an act rendered impossible by omnipotent power. (Broom's Leg. Max., 6th Am. edition, 178, 179, and cases there cited.) It is claimed, that because Howell was, about two hours before the expiration of the policy, so fatally stricken, that he at once became and remained in a dying condition until the next day, when he died, that he was, within the meaning of the policy, dead before it expired. It must be borne in mind that this is not a policy upon property but upon life. It is not enough that his life was in such peril that no hope was left of a partial recovery, and that so far as his continued existence could have benefited the plaintiff or her children by any provision he could have made for their comfort, his life to them may, in that respect, have been worthless. It was not against his ill health or against any attack of apoplexy and paralysis *Page 282 or fatal epidemic she was insured, but against his death from any cause other than those excepted in the policy; if it was not so, and he had been, on the day before the policy expired, in the last stage of consumption and from that cause in a dying condition and had died the next day after it had expired, the defendant would have been liable. The length of time a diseased man may, before death, be in a dying condition, whether from sudden attack or long disease, is undefined. Howell may have been attacked two days or more before the expiration of the policy and remained in what is ordinarily understood as a dying condition until a day or more after it expired, and the result would be that in cases of this kind, if, from satisfactory evidence, a jury should find that the life insured was stricken with disease and death two days before the policy expired and lived until after its expiration, the insurer would be liable. And thus, in order that a party, for whose benefit a policy is issued, may determine upon his rights under it, his first duty would be to consult the doctor to learn whether his patient is in a dying condition, instead of his policy to learn with certainty that, if he is alive when his policy expires, the insurance will terminate.
The admission that it was the usage of the defendant, in dealing with other persons whose lives it insured, to allow the insured party some days of grace within which to pay the annual premium, and that the insurance was effected in reference to that usage, and that it was understood and agreed between the parties, at the time it was affected and the policy issued, that if anything should happen to Howell to prevent his paying the premium on the day whenever the same became payable, the policy should not thereby become void, but should continue in full force for a reasonable time thereafter, so that the premium could be paid, was subject to a well-grounded objection. It amounted to a proposition to substitute a custom for a plain provision contained in the policy itself, and in clear conflict with its provisions, and hence unavailable to the plaintiff, as was also the parol agreement *Page 283 made at the same time the insurance was effected and the policy issued, and for the same reason. After what was understood and agreed at the time the insurance was effected, there was, on an occasion where an annual premium was paid, the same understanding and agreement, a part of which was, that if anything should happen to Howell to prevent his paying the premium on the day it became payable, the policy should not become void, but continue in force for a reasonable time thereafter, so that the premium could be paid, this being after the insurance was effected and the policy delivered, was binding upon the parties. (TheTrustees of the First Baptist Church v. Brooklyn Fire Ins.Co., 19 N.Y., 305, 307.) The admission of this agreement was followed by another, viz.: That by the act of God Howell was prevented from paying the premium on the day it became payable, and the further admission that the premium was tendered to the defendant within a reasonable time thereafter; and that after the expiration of ninety days from notice of the death of Howell, the defendants were requested to pay the insurance, and refused to comply with the request. The death of Howell, under the circumstances, rendered the agreement to perform a waiver of the condition precedent, and the tender, within what is conceded to be a reasonable time, followed by the notice and demand of payment, entitles the plaintiff to a reversal of the judgment of the General Term.