Wegner v. Federal Reserve Life Insurance

The opinion of the court was delivered by Dawson, J.:

In a motion for rehearing defendant endeavors to persuade this court that it reached an erroneous conclusion in respect to its liability on the second cause of action founded on policy No. 10804. But the argument now advanced contains nothing this-court failed to consider when we reached our decision, and the controlling point was sufficiently discussed in the opinion already delivered.

However, defendant does raise a point not covered by our first opinion and which has to do with the fact that the .insured 'actually was in default of payment of premiums at the time of his death, and only the statute forbidding forfeiture of the policy within six months after such default except in conformity with its terms constrained this court to order judgment in plaintiff’s favor on her second cause of action. Now, while that statute forbade the forfeiture of policy No. 10804 as attempted by defendant, it did not undertake to remit whatever amounts the insured might owe the insurer on defaulted premium payments. In this case, at the time of his death in March,, 1929, the insured owed defendant a balance of $7.58 on the first quarter’s premium for the year beginning October 7,1928, and owed the second quarterly premium of' $134.30 due January 7, 1929 — a total of $141.88. This sum with interest thereon from date of default is a proper item to be credited against the amount of the judgment on the second cause of action. Defendant suggests that the *101 computation of this credit item should be based on the insured’s liability for the whole year’s premium less the amount he had paid on the first quarterly premium, and less, also, the accumulated dividends standing to his credit. Such a computation would make a larger item of credit, but to give it countenance would shake our faith in the correctness of defendant’s argument — and our own conclusion as well — that the accumulated dividends could only be credited when a full year’s premium was paid in cash, and that as the insured chose to pay in quarterly installments he was not entitled thereto.

Plaintiff objects to any item of credit being given because this matter was not raised in the trial court. All the facts, however, were developed in the trial court and judgment in plaintiff’s favor was wholly denied. We have reversed that judgment on the second cause of action and are directing judgment to be entered in plaintiff’s favor. But when this court orders final judgment instead of ordering a new trial, it frequently happens that we must specify the particular amount for which judgment should be entered or how the amount of a directed judgment is to be computed. (Mitchell v. Derby Oil Co., 117 Kan. 520, 531 , 232 Pac. 224 ; Platts v. Thompson, 126 Kan. 544, 551 , 268 Pac. 833 ; Devlin v. City of Pleasanton, 130 Kan. 766 , 287 Pac. 595 .)

The motion for a rehearing is denied, but our mandate will direct that the item of $141.88, with interest, be deducted from the judgment ordered in plaintiff’s favor on her second cause of action.