Burton v. Columbian National Life Insurance

CHIPMAN, P. J.

A general demurrer was sustained to the complaint and defendant had judgment from which plaintiff appeals. The action was commenced to enforce the payment of a life insurance policy payable to plaintiff, wife of the insured. It appears from the complaint that defendant company issued its policy February 12, 1909, upon the life of Walter B. Burton; that, on August 9, 1910, said Walter Burton died; that, in the month of August, 1910, plaintiff made due proofs of death and demanded payment under said policy but defendant denied all liability. It further appears from the complaint “that the current year’s premium for 1910 was not paid except as provided for in said policy that said premium be deducted from said $5,000.00”; that said plaintiff, since the delivery of said proofs of loss, has given defendant written authority “to deduct any premium unpaid, with interest, from the amount due under said policy and has elected to take said sum due under said policy in one sum in cash.” A copy of the policy sued upon is attached to the complaint as part thereof. The clauses of the policy referred to by counsel and bearing upon the sufficiency of the complaint are as follows:

“The Columbian National Life Insurance Company of Boston, Massachusetts, agrees to pay five thousand dollars to Rose Burton, wife of the' insured hereunder beneficiary, or to such beneficiaries as may have been designated in the manner herein provided, at the home office of the company in Boston,' upon receipt of satisfactory proofs of the death of Walter B. Burton, of Berkeley, state of California, the insured, within seven years from the date hereof, less all indebtedness to the company on this policy, together with any unpaid premium or portion of the premium for the then current policy year.

“This policy is issued in consideration of the sum of eighty-eight 95-100 dollars the receipt of which is hereby acknowledged, and of the payment of a like sum on the twelfth day of February in every year until seven full years’ premiums have been paid or until the prior death of the insured, the balance, if any, of the then current year’s premium to be deducted in any settlement hereof.

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“The benefits, conditions and privileges on pages two and three are part of this contract as fully as if recited over the signatures.”