I concur with the opinion of the majority in holding that respondent unlawfully canceled the master policy of insurance. In my opinion, this policy, by its terms, contemplated the members of the "Seattle Postal Benefit Association" as "those eligible for insurance at such anniversary," referred to in paragraph 20 of the contract, subsection (c), quoted in the majority opinion. Respondent, then, could decline to renew the policy only when less than fifty per cent of the members of the association were insured. *Page 572
I am not in accord with the majority as to the measure of the damages to be allowed appellant because of the wrongful cancellation of the insurance by respondent. The policy in question was both group and term insurance. By paragraph 7 of the contract, respondent had the right, at the end of each five year period, to establish new premium rates for the continuance of the policy. Under this provision of the contract, the rates might (as they did) remain stationary, they might increase, or they might be lowered. The contract provided for a reduction in rates "if experience warrants."
At the time of the cancellation, appellant was no longer an insurable risk. If he could have procured new insurance, the amount of his damage would be easy to estimate, but he was not then insurable. According to the mortality tables, his life expectancy was approximately seven and one-half years. His physical condition, however, was bad; doubtless below the average condition for his age.
In the case at bar, the presence of several factors render it well nigh impossible to determine, with any degree of accuracy, the cash value of appellant's insurance at the date of cancellation. The life expectancy of the insured, as shown in the standard mortality tables, cannot be adopted, such tables being merely an estimated average, and because, as stated in the majority opinion, appellant was laboring under serious physical disabilities, which would probably render his life expectancy less than the average at his age. At the same time, it is absolutely impossible to determine what his reasonable life expectancy then was.
Under the peculiar circumstances of this case, I am convinced that it should be held that the measure of *Page 573 appellant's damage should be the return of the premiums which he paid, with interest. In reaching this conclusion, I take into consideration the fact that the policy was, in effect, term insurance, and that the premiums which appellant paid were subject to be increased. As stated in the majority opinion, many courts have adopted this measure of damages. It is my opinion that, in such cases as this, the rule stated is both the majority and the better rule. Mutual Relief Ass'n v. Ray, 173 Ark. 9,292 S.W. 396 (cited in the majority opinion). This measure of damages is simple, easy of computation, and its application does not require any estimate as to the probable life span of the insured, concerning which only a guess can be made.
For the reasons stated, I am not in accord with the opinion of the majority, in so far as the same fixes the measure of damages to be allowed.
ROBINSON and DRIVER, JJ., concur with BEALS, J. *Page 574