Jackson v. Washington National Insurance Co.

SPENCE, J.

Plaintiff, as the assignee of the beneficiary of an accident and health policy issued by defendant to William A. Jackson, sought to recover a death benefit of $1,000 for the accidental death of said William A. Jackson. Plaintiff had judgment and defendant appeals.

The sole question presented by this appeal is whether the policy was in force when said William A. Jackson was accidentally killed on October 3, 1933. Appellant contends that the payment of the premiums as hereinafter set forth continued the policy in force until October 1, 1933, and no longer, while respondent contends that said payments continued the policy in force until October 9, 1933.

The policy was dated April 26, 1924, and, in consideration of the payment of a premium of $3.75, it was provided that the company “does hereby insure William A. Jackson . . . subject to all the conditions and limitations herein

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after contained, from the day this contract is dated, 12 o’clock noon, standard time of the place where Insured resides when this policy is issued, until 12 o’clock noon, such standard time, of the

first day of June, 1924,

and for such further periods of

one calendar month

each as the renewal premium of $3.75 per month will maintain the policy in force”. (Italics ours.) The acceptance of any renewal premium was made optional with the company. It was also provided that if default was made in payment of the agreed premium, the subsequent acceptance of a premium by the company would reinstate the policy but only to cover accidental injury thereafter sustained. Clause N provided, “The payment of a past due premium shall not continue this insurance in force beyond

the first day of the succeeding month.”

(Italics ours.) Another provision of the policy provided, “Any premium paid to the Company for any period not covered by this policy will be returned upon request. ’ ’

The insured’s renewal receipt card shows that the premiums during the last eleven months were ordinarily paid within a few days following the first day of each month. The entries on said card relating to the last payment shown thereon were as follows: “Herewith find $3.75 as payment of Monthly Premium on Policy No. 8363 for which please receipt below.—Date of Payment, 8/9/33.—Month on which it Applies, Sept.—Amount of Monthly Premium $3.75.—Ac-cepted only subject to all the conditions of the policy— (Signed) M. Plory, Collector,—Jackson, Wm. A. Insured.” Similar entries appeared on the card giving the dates of the making of the ten preceding payments and specifying the particular month for which each of such payments applied. It will be noted that the date of the last payment shown on said card was “8/9/33”, which payment was specified as the one applying to the month of September. The next preceding date of payment appeared as “8/4/33”, which payment was specified as the one applying to the month of August. August is the eighth month, but the parties have assumed, without making mention of any error in the date, that the payment which was dated “8/9/33” was made upon September 9th rather than on August 9th. Our attention has