Union Mutual Life Insurance v. Adler

Dissenting Opinion.

Roby, J.

It is averred in the first paragraph of amended complaint that the defendant' is a corporation organized under the laws of the state of Maine, and that on July 31, 1893, it executed its policy of insurance upon the life of plaintiff’s decedent, for the sum of $3,000, for the consideration of the payment of the premium of $97.80 annually for a period of twenty years, unless death should sooner occur; that, as a further consideration, it was agreed that should the assured pay three annual premiums in cash before lapse in the payment of premiums, then such policy would be secure for 7 years and 235 days without any further payment. By virtue of said agreement the policy sued on, which is made an exhibit, was in force at decedent’s death on December 20, 1901, he having paid the first three premiums thereon.

Much has been said in argument about the “Maine non-forfeiture law.” The theory of the complaint is that the appellee company contracted to extend the obligation of its policy for the time named, if a lapse in payment occurred after three full premiums had been paid.

*542The contract is in writing. It is to be construed as other contracts of insurance, and where the language used is susceptible of different interpretations, or is doubtful, that meaning which affords the greatest indemnity, and is in the interest of the assured, must be adopted. Union Cent. Life Ins. Co. v. Jones (1897), 17 Ind. App. 592, 600; Union Cent. Life Ins. Co. v. Woods (1894), 11 Ind. App. 335; Franklin Life Ins. Co. v. Wallace (1884), 93 Ind. 7, 11.

In construing this contract, the laws of Indiana are applicable. Kline v. National Benefit Assn. (1887), 111 Ind. 462, 60 Am. Rep. 703; Franklin Life Ins. Co. v. Wallace, supra; Northwestern, etc., Ins. Co. v. Little (1877), 56 Ind. 504; Supreme Lodge, etc., v. Meyer (1905), 198 U. S. 508, 25 Sup. Ct. 754, 49 L. Ed. 1146.

It may be that the terms of the policy were selected by the appellant because of the law of that state in which it is incorporated, or it may have been led to make such selection by the necessities of competition, but the reason, whatever it may have been, is immaterial, the rights of the parties being determinable by the terms of the contract which they have made.

The policy contains a table of which the following is a part:

“Humber of years premiums paid in cash before lapse.
3
4
5
Maine nonforfeiture law. Insurance under this policy secured for
Tears Days
7 235
10 116
13 6 ”

The object of the table is to notify the assured in advance of the length of time during which his insurance is effective after a lapse in payment of premiums. As long as premiums are paid the insurance is in force without reference to any table. After the payment of three premiums the assured who ceases to pay is given protection for a length *543of time fixed by reference to tbe amount paid by bim in excess of tbe value of tbe protection wbicb bas been furnished prior to bis failure thus to pay. Tbe amount of such excess is determined by reference to tbe tables of mortality. Courts take judicial notice of both mortality and multiplication tables, and tbe time of extension in any given instance becomes therefore a matter of mere computation. Tbe assured paid altogether $293.40, as averred in tbe first paragraph of complaint. This amount was paid in three annual instalments on a twenty-payment life policy. At tbe end of tbe third year tbe reserve due to bim was $153.96, allowing $26.01 out of each premium for tbe expenses of tbe company made necessary by handling this business, an allowance wbicb is no doubt excessive. Tbe sum of $153.96 buys and pays for a nonparticipating, paid-up $3,000 life insurance policy for tbe term of 6 years and 111 days. If tbe term specified in tbe table bad been stated as 6 years and 111 days it would be exactly in accordance with tbe above computation, including tbe amount set aside for expenses. Whatever amount less than $26.01 per year was deducted from expenses in making tbe actual computation upon wbicb the table referred to is based would swell tbe fund available to buy paid-up insurance, and a very slight reduction in that item would result in extended insurance from tbe end of tbe third year of 1 years and 235 days.

Tbe deduction for expenses was fixed by- tbe company, and I am not disposed to attribute to it tbe segregation of a larger amount than its figures render necessary. Tbe purpose of tbe table is to convey information to tbe person insured, or proposing to insure, relative to tbe term of extended insurance. It is not stated in tbe policy whether tbe extension dates from tbe end of tbe year for wbicb payment is made, or from tbe time tbe policy was written, except as tbe purpose of printing the table of necessity implies carrying beyond tbe end, an inference wbicb accords *544with the custom of life insurance companies in printing such tables.

The terms of the contract are, to say the least, ambiguous and uncertain in this regard. It therefore becomes the duty of the courts to construe it, and such construction, under the familiar rule above stated, requires that the extension be dated from the end of the third year. The table as printed, if otherwise construed, is upon its face misleading and deceptive, and calculated to operate as a fraud upon the insured. No one is permitted 'to take advantage of his own wrong, nor will acute distinctions be drawn to aid in undoing the unwary; but a construction is always preferred which is according to the nature and intent of the thing.

The assured departed life 5 years and 155 days after the end of the third year. Something has been said about the unreasonableness of this extension. Results reached by mathematical computations based upon the multiplication and mortality tables are not usually put aside by the courts upon the mere statement that they are unreasonable. Indeed, the impressions of uninformed individuals are sometimes corrected by figures.

The second paragraph of complaint avers the payment of four cash payments. The answer denies the payment in cash of the fourth premium, and avers the execution of a note therefor dated July 15, 1896, and due three months after date, containing the provision that “this note is given on account of said policy, and unless paid when it becomes due said policy then lapses as for nonpayment of premiums when due,” that thereupon said insurance was carried for a period of three months previous to the maturity and nonpayment of said note, and that said note has never been paid.

Forfeitures aré not favored; they must be clearly and explicitly stipulated, and will not be inferred. Home Ins. Co. v. Marple (1891), 1 Ind. App. 411; Glass v. Murphy *545(1892), 4 Ind. App. 530, 536; Bell v. Hiner (1896), 16 Ind. App. 184; Phenix Ins. Co. v. Lorenz (1893), 7 Ind. App. 266; Union Cent. Life Ins. Co. v. Jones (1897), 17 Ind. App. 592, 598.

There is no provision in the policy under consideration for its forfeiture on account of nonpayment of premium, or for any other reason. In the light of the principles enunciated by the alpove authorities, no provision for such forfeiture can be read into it by any one. Ohio Farmers Ins. Co. v. Stowman (1896), 16 Ind. App. 205.

The note only provides for such lapse as is previously specified in the policy; and there being no such specification the provision in the note is inoperative, nugatory, and of no avail. Dwelling-House Ins. Co. v. Hardie (1887), 37 Kan. 674, 16 Pac. 92; Drury v. New York Life Ins. Co. (1903), 115 Ky. 681, 74 S. W. 663, 61 L. R. A. 714, 103 Am. St. 351.

The answers are drawn upon the evident theory that the failure of the assured to pay the note at maturity ipso facto -released appellant from all liability upon the policy. This theory does not accord with the facts exhibited. If the note is valid in appellant’s hands then it cannot deny the receipt of the fourth annual premium. McEvoy v. Nebraska, etc., Ins. Co. (1896), 46 Neb. 782, 65 N. W. 888.

Collection of this note from Adler’s estate would fix the company’s liability on the policy. Phenix Ins. Co. v. Dungan (1893), 37 Neb. 468, 55 N. W. 1069; Phoenix Ins. Co. v. Lansing (1884), 15 Neb. 494, 20 N. W. 22; Schoneman v. Western, etc., Ins. Co. (1884), 16 Neb. 404, 20 N. W. 284; Phenix Ins. Co. v. Rollins (1895), 44 Neb. 745, 63 N. W. 46.

It appears from the averments of the answer that the appellant, in consideration of said note, carried the insurance for three months. This being the case there is no failure of consideration, and the appellee’s estate has been at all times liable for the payment of said sum. Even if the *546policy had contained a provision for forfeiture, and the recital in the note therefore beoen effective, it would still have been competent for appellant to retain and collect the note. Phenix Ins. Co. v. Tomlinson (1890), 125 Ind. 84, 9 L. R. A. 317, 21 Am. St. 203.

Where the policy contains no provision for a forfeiture, and the note in itself is not effective to that end, mere nonpayment does not supply such provision of the policy.

I have thus stated a few of the numerous reasons why there should be a rehearing granted in this case.