Summary
Hearing on an appeal by tbe defendant from a judgment of tbe supreme court of tbe District of Columbia in an action on a policy of life insurance.
Tbe Court in tbe opinion stated tbe facts as follows:
Tbe Metropolitan Life Insurance Company, defendant below, appeals from a judgment in an action on a policy of life insurance.
To tbe declaration on tbe policy alleging tbe contract of insurance on tbe life of Ella R. Burcb in tbe sum of $500 for tbe benefit of plaintiff, Susan R. Burcb, and tbe death of tbe insured, tbe defendant pleaded specially that it issued said policy in consideration of quarterly payments of tbe premium of $6.13 to be paid at tbe defendant’s borne office in tbe city of New York. That among the conditions of tbe same was one that tbe payment of a premium or instalment thereof should not maintain the policy in force beyond the date when the next became dne and payable. That insured paid the quarterly premiums-when the same became due until April 14, 1910, whereby said policy lapsed and was no' longer enforceable. That after said lapse, on May 26, 1910, the insured and the beneficiary applied for a restoration of said policy, and, to induce the defendant to-restore the same, made a written application, in which they declared that the insured was on said date in sound health, that she-had not been, since the issue of said policy, afflicted with any disease or physically unable to attend to business, and had not consulted or been attended by any physician. That they therein expressly agreed that if the defendant should grant said restoration, it should be upon condition that if any of the foregoing statements should be in any respect untrue the policy shall he void and all premiums forfeited. That the insured was not on said date in sound health, but was suffering from pulmonary tuberculosis; that she quit work on account of the same April 10, 1910, and on the same day consulted a physician, who attended her until she died of said disease, September 26, 1910. That by reason of the untruth of the statement in said application, the said policy was never restored and is unenforceable.
Plaintiff offered the policy of insurance in evidence, the following parts of which are set out in the bill of exceptions:
“Metropolitan Life Insurance Company, in consideration of the quarter annual premium of six and 13/100 dollars, and the payment of a like amount upon each fourteenth day of July, October, January, and April hereafter until twenty full years’ premium shall have been paid, or until the prior death of the-insured, promises to pay at the home office of the company in the city of New York to Ella B,. Burch, of Washington, county of District of Columbia, herein called the insured, on the fourteenth day of July, nineteen hundred and twenty nine, if the insured be then living, or upon receipt at said home office of due proof of the prior death of the insured, to Susan P. Burch, mother of the insured, beneficiary, with right of revocation, five hundred dollars, less any indebtedness hereon to the company and any unpaid portion of the premium for the then current policy year upon surrender of this policy properly receipted. * * *
“Payment of premiums.—The company will accept payment ■of premiums at other times than as stated above, as follows:
“Except as herein provided the payment of a premium or instalment thereof shall not maintain the policy in force beyond .the date when the next premium or instalment thereof is payable.
“All premiums are payable in advance at said home office, •or to any agent of the company upon delivery, on or before date due, of a receipt signed by the president, vice president, secretary, or actuary of the company and countersigned by said agent.
“A grace of thirty-one days, subject to any interest charge at the rate of five per cent per annum shall be granted for the payment of every premium after the first year, during which time the insurance shall continue in force. If death occur within the days of grace the unpaid portion of the premium for the then current policy year shall be deducted from the amount payable hereunder.
“No person except an executive officer of the company, as •aforesaid, has power to modify, or in event of lapse to reinstate, this policy or to extend the time of paying a premium.”
Plaintiff testified that the insured died on September 26, 1910. That she was her daughter. That she had other insurance in the same company, consisting of two smaller policies, and that an agent of the defendant company came to her home •each week to collect the premiums on those policies which were payable weekly. That the agent asked her daughter to take «out the policy sued on, which was afterwards issued. She produced receipts for premiums, one dated July 20, 1909, for the premium due July 14th; the second dated October 19th, 1909, for the premium due October 14th; another dated February 6, 1910, for the premium due January 14th; one dated May 26, 1910, for the premium due April 14; one dated August 1, 1910, for the premium due July 14, 1910. The premiums on said policy were habitually collected by the agent when he called to ■collect on the other policies. That on April 14, 1910, he was told witness did not then have the money, but to come back next week. The agent did not return for several weeks. Another agent called and insured said she would not pay the money, because she did not know the man who had the receipt; and that one of the instructions of the company, printed in the receipt book, was that premiums should not be paid to strangers, but only to those introduced by the assistant superintendent. That when insured told him she would not pay him, he told her she had better come to the office on Monday and pay. Plaintiff went to the office on Monday, and was told to take the money back and that they would send an agent to her house. She was not told that the policy had lapsed or been forfeited for nonpayment of premiums. That witness took the money back to her home and a new agent, Fisher, brought the receipt. That the full amount of the money was paid and the receipt delivered.
For the defendant, H. Fisher testified that he began work for the defendant as an agent on April 18, 1910; that he collected premiums of 15 cents a week of plaintiff on two smaller policies at her home. About three weeks after commencing work be was given a receipt by the assistant superintendent, Winn, and told to collect the premium; that he went to plaintiff’s home and saw the insured, whom he told he called to collect the premium on said policy. That she said she did not then have the money, but would call at the office and pay. Told her she had better call on Monday and pay, or otherwise the policy would be lapsed for nonpayment. That he heard nothing more for about .three weeks, when he was told by Winn to go to insured’s home and have her sign a revival application for the restoration of the policy. That he called on May 26, 1910, with the blank application, filling the same correctely with the answers to the questions, and the same was read by insured and signed by her and plaintiff. That he then gave a provisional receipt. That he does not know when the receipt, read in evidence by plaintiff, was delivered; could not tell whether he had given her that receipt later, but is positive that he only gave a provisional receipt on the day the application was signed. Cross-examined lie said that the receipt bore bis signature, but be did not know when it was delivered.
Robert M. Rice, assistant superintendent of defendant company, testified that be collected tbe debits, including tbe bonm of plaintiff, beginning in March and ending in April, 1910, and introduced Fisber on tbis debit on April 18, 1910. That be bad collected on several small industrial policies held by plaintiff for several weeks prior to April 13, 1910. That either in tbe week of April 11, or tbe beginning of tbe week of April 18, be called on insured to collect ber premium, wbo told bim sbe did not, have tbe money tben, but would call at tbe office and pay it. That be returned tbe receipt to tbe office and noted on tbe stub that sbe. would call. That be called at the bouse after introducing agent Fisber, to collect on tbe small policies, and obtained plaintiff’s receipt book for tbe same in order to credit a dividend that bad matured thereon. That be only called once to, collect tbe premium on tbe present policy. Refreshing bis memory by a receipt for premium on tbe smaller policies dated April 13, 1910, be thought that was tbe date of bis demand for tbe premium on tbis policy; that be bad tbe receipt for tbe same then in bis possession.
Assistant Superintendent Winn testified that be gave tbe receipt for tbe premium due April 14, 1910, to agent Fisber, wbo returned it with tbe note, “Will pay at office.” Plaintiff came to tbe office shortly before May 26 and tendered tbe money, which was refused because tbe policy bad lapsed, and tbe receipt bad been returned to New York and was tben there. That after-wards be gave agent Fisber a revival application and directed bim to go to bouse of plaintiff and obtain ber and tbe insured’s, signatures. That Fisber returned tbe application with tbe signatures, and thereafter tbe policy was revived. (Tbe genuineness of tbe signatures to tbis were admitted by counsel for plaintiff.)
Defendant offered in evidence tbe application, which contained tbe statements alleged in tbe plea, and tbe same was admitted subject to a motion to exclude, on the objection of plaintiff, because a copy thereof had not been attached to the policy in the possession of the plaintiff.
Defendant then called Dr. Gwynn, who testified to attending the assured professionally from April 10, 1910, until her death; that she was not in sound health between said dates. Plaintiff objected to the disclosures of the physician on the ground that they were made incompetent by statute, but the objection was overruled. Cross-examined the witness said that in his opinion the insured died of pulmonary tuberculosis.
Upon the conclusion of the testimony the court, on plaintiff’s, motion, excluded the application, and also the evidence of Dr. Gwynn, to which defendant excepted. Defendant’s bill of exceptions then recites:
“Counsel for the defendant thereupon stated that in view of the court’s ruling in respect of the revival application, there was no question of fact to go to the jury, and that the defendant was without any defense to the policy for the reason that the only defense was in respect to breach of warranties contained in the application for restoration, and that there seemed no reason why the court should not direct the jury to return a verdict for the plaintiff.”
The court then ruled that the defendant was without defense to the action, and thereupon instructed the jury to return a verdict for plaintiff, to which ruling the defendant excepted.
Counsel for plaintiff then moved the court to submit to the jury, for a special finding of fact, whether the policy had in fact been lapsed by defendant for nonpayment of the premium feife ^p\\ 14, HV1, Wife comí <M, wi\\i tie exception noted by the defendant. The jury answered “No,” to the question. Thereupon the court directed the jury to return a verdict for the plaintiff on the whole evidence. Defendant noted its exceptions.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
