Nelson v. National Guaranty Life Co.

ANDREWS, J.,

pro

tem.

The plaintiff sues to recover on a policy of life insurance issued to her deceased husband by defendant. The defense is that the policy lapsed by nonpayment of an installment of the premium and also that there was fraud on the part of the insured in making false statements in the application for the policy.

On trial the plaintiff introduced evidence which she claims constituted a waiver by defendant of the strict performance of payment of the premium, and that the fraud was that of the agent of defendant, and not of the deceased.

The policy contained a provision for forfeiture and relating to waiver, in the following words: “The failure to pay any premium within fifteen days from date on which it is due shall without further action of the company lapse this

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policy and the insured shall thereafter have no claim hereunder until and unless he shall have been reinstated by the company. At any time within one year after lapsing, such insured may be reinstated upon his furnishing proof acceptable to the company that he is of insurable age, in good health, and by payment of all past due premiums or payment of the rate at attained age. Sending of notice of premium or any other notice after forfeiture or lapse shall not be a waiver or evidence of waiver of any lapse or forfeiture.”

The premium in question was due July 1st, and on the twenty-third the insured mailed to defendant currency, which currency was received on the twenty-fourth and formal receipt issued without knowledge of the death of the insured, which had occurred by accident on the same day and after the premium was mailed.

The payments previous to this last payment had been made by the insured at irregular times, many of them after the fifteenth, the date upon which forfeiture would have resulted by the terms of the contract except for waiver. Seven payments were made after the fifteenth of the month in which they were due, one as late as the thirtieth, one on the twenty-seventh, and the one in the month previous to the final one in question was made on the twenty-fifth.