Bohles v. Prudential Insurance Co. of America

*316 The opinion, of the court was delivered by Trenchard, J.

This is an appeal pursuant to “the Practice act (1912),” from a judgment of the Supreme Court reversing a judgment of nonsuit in an action at law, in the Essex Circuit, on a policy of life insurance.

The policy was issued by tire defendant company December 30th, 1902, on the life of the husband of the plaintiff, the beneficiary.

The defence was that the policy lapsed for non-payment of the premiums. The premiums were paj'able “quarter-annually.” A quaxterty premium became due June 30th, 1904. The policy provided that “a grace of one month will be allowed, during which time the policy will remain in force.”

The learned trial judge granted the nonsuit upon the theory that it conclusively appeared from the evidence that the premium due June 30th, 1904, had not been paid within the grace period of one month allowed by the policy contract.

We are of the opinion that the Supreme Court properly held that such nonsuit was erroneous.

The word “month,” as there used, means a calendar month. 38 Cyc. 312.

Since the premium was due June 30th, the month of July was the period of grace to which the insured was entitled. The last day of grace, therefore, was July 31st. That day was Sunday. The company afforded no opportunity to pay on that day and the insured was therefore entitled to pay the premium on the first day thereafter upon which business could be lawfully transacted, which was Monday, August 1st. So to hold is to put this case in accord with the great weight of authority (Serrell v. Rothstein, 4 Dick. Ch. Rep. 385), and is consistent with the well-settled rule that, so far as fair construction of the language used will permit, the conditions and provisions of a policy with reference to forfeiture should be strictly construed in favor of the insured and against the company. State Insurance Co. v. Maackens, 9 Vroom 564 .

The defendant insists that, while a month means a calendar month, it runs from the day in one month to the corresponding day in the ensuing month; and refers .to cases of prom *317 issory notes and the like. That contention ignores this plain distinction, where a note or obligation is due one month from date, the computation is necessarily made by counting the day of the date, and that of course makes the month end on the corresponding day of the ensuing month. But where the provision is, as here, that a grace of one month will he allowed, the month starts with the day following that on which the premium became due. Any other construction would give less than a month’s grace.

Now, the evidence in the present case would have justified the jury in finding that the premium due June 30th, 1904, was paid to the company on Monday, August 1st, 1904, and that, as we have seen, was in time, in view of the provision of the contract as to the period of grace.

No doubt it was also open to the jury to find that tiro premium in question was paid after August 1st, 1904, and in that case the question of waiver of seasonable payment would then arise. Because, whether the company was bound to receive the money or not, it did in fact receive it, and retained it for three weeks, giving some receipt of an “unusual color.” Possibly that may have amounted to a conditional receipt of the money, but there is no evidence on that point. The company retained the money for three weeks and then returned it. The rule of: law is that an unconditional acceptance of the premium would constitute a waiver of the default. 25 Gyc. 871. In the present case there was presented by the evidence a jury question whether, by the receipt of the money, the company had not waived forfeiture growing out of the delay in payment.

Tt follows, therefore, that the nonsuit cannot be justified upon the ground upon which it was based by the trial judge.

Nor do we think that it can he sustained upon any other ground.

The defendant company insists that the plaintiff, who was the beneficiary and the person who made the payment in question, assented to the forfeiture of the policy by receiving back the premium and giving up her receipt for it. Perhaps so, *318 but according to her evidence she strenuously objected to receiving the money and insisted on the company’s keeping it. We think it was therefore clearly open to the jury to find that she received it without assenting to the right of the company to return it to her, or to its operating as a forfeiture.

The defendant also contends that the nonsuit may be sustained because of the plaintiif’s failure to present to the company proof of the death of the insured'under this particular policy. We think not. By the terms of the policy it was payable “immediately upon acceptance of satisfactory proof of the death of the insured during the continuance of this policy.” It is admitted b3^ .the defendant that the plaintiff made and the Compaq accepted proper proof of the death of the insured under two other policies which were paid. It is also admitted that the insured in those policies under which proof was made was the insured in the policy in suit. Since none of the policies required separate proof of death, we think the proof of death given under any one of them was sufficient. Girard Life Insurance Co. v. Mutual Life Insurance Co., 97 Pa. St. 15.

Moreover, the. company denied liability under the policy in suit upon the ground that there had been a forfeiture because of failure to pay the premium. That, we think, was a waiver of the condition as to furnishing of proof of death, for it was an indication to the insured that the furnishing of proofs would be useless.

The judgment of the Supreme Court, reversing the judgment in the Circuit, will be affirmed.

For affirmance — The Chancellor, Chief Justice, Swayze, Trenci-iard, Minturn, Bogert, Vredenburgit, Congdon, Treacy, JJ. 9.

For reversal — None.