Johnson v. Mutual Benefit Health & Accident Ass'n

NOURSE, P. J.

Plaintiff sued as beneficiary for a policy of insurance issued by defendant. Demurrer to the second amended complaint was sustained and plaintiff, declining to amend, appeals from the judgment thereafter entered.

The complaint alleges that on January 14, 1928, the defendant issued a policy of insurance to C. A. Russell, naming plaintiff as beneficiary; that the policy was issued in consideration of the payment “of an annual 'premium of seventy-four ($74.00) dollars as follows: the sum of twenty-six ($26.00) dollars as initial payment and as the first quarterly installment and the sum of sixteen ($16.00) dollars as quarterly installments thereafter”; that, on the third day of January, 1929, while said “policy was in full force and effect”, the insured died; and that the insured fully paid each installment as it became due and fully paid “the annual premium” upon said policy. The policy of insurance is made a part of the complaint and is pleaded in full as an exhibit. This policy discloses that it was issued upon these express terms: “the payment in advance of twenty-six ($26.00) dollars as first payment; and the payment in advance of premiums of sixteen ($16.00) dollars quarterly or sixty-four ($64.00) dollars annually thereafter, beginning with April 1st, 1928”. The term of the policy is declared to begin at 12 o’clock noon on date of issue against accident and to end “at 12 o’clock noon on date any renewal is due”. It is also declared that if any installment shall be unpaid on the day such payment is due “the policy shall terminate on the day such payment is due”.

The parties agree that the plaintiff is bound by the terms of the policy pleaded and it is not necessary to cite authorities to that point. It is apparent that the policy gave the

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insured the option of paying an annual premium of $64.00, or a quarterly premium of sixteen ($16) dollars. If he chose the former plan the full annual premium was due April 1, 1928, and this, if paid, would extend the policy to April 1, 1929. If he chose the latter plan, quarterly payments were due April 1, 1928, July 1, 1928, October 1, 1928, and January 1, 1929. If he had paid the annual premium on April 1, 1928, or the quarterly premium on January 1, 1929, the policy would have been in force at the time of his death on January 3, 1929; otherwise it would have lapsed under the plain terms of the policy.