Opinion
June 7, 1907.
Frank Verner Johnson, for the appellant.
George O. Redington [ Aaron J. Colnon with him on the brief], for the respondent.
In this action the beneficiary has recovered for a death upon an accident policy of insurance. The court submitted two questions to the jury; first, whether the death was accidental, and, second, whether credit had been extended for the payment of the premium. The jury answered both questions in the affirmative. The court upon the motion of each party for the verdict subsequently directed a verdict for the plaintiff. The principal question at issue was whether the policy was outstanding. It is admitted that the defendant issued a policy dated July 20, 1904, declared effective for twelve months therefrom and that it was in full force for that period. But as the fatality occurred on August 5, 1905, the question depends upon the fact whether the policy had been renewed so as to cover that day. The original policy was numbered D. 15946. It contained these provisions: "The term of this Policy is twelve months beginning at twelve o'clock, noon, standard time, on the Twentieth day of July, 1904, and ending at the same hour, but may be renewed from term to term thereafter by the payment of the premium above specified." "The Company may cancel this Policy when the Insured attains the age of seventy, or at any previous time, by written notice mailed to the Insured at the address hereinabove given, with the Company's check for the unearned part, if any, of the premium." It appeared that the assured received a card from the defendant with the numbers, Policy No. D. 15946 and 481220, and reading: "The renewal premium * * * on the above numbered Policy * * * is payable on the 20 day of July, 1905." The card also read: "The premium referred to on reverse side will increase the Principal Sum of your Policy 10 per cent. * * * Remember that your Policy increases yearly in value for 5 years while premium remains stationary." It also appeared that the assured received a bill from the defendant, as follows:
"THE TRAVELERS INSURANCE COMPANY, "of Hartford, Connecticut.
"Metropolitan Branch Office, "31 Nassau Street. NEW YORK CITY, Aug. 1, 1905.
"Mr. H.J. CORNELL
"TO THE TRAVELERS INSURANCE COMPANY, Dr.
"Make Checks to the order of The Travelers Insurance Company. * * *
"No. of Policy Date Name Premium
"481220 Jul. 20 H.J. Cornell 13.75 "Receipt in office."
(The words "Aug. 1, 1905," and "Receipt in office" stamped on said exhibit.)
It was practically admitted that this bill referred to the same policy. On the original policy, dated July 20, 1904, the defendant had sent a bill for the premium substantially similar to the bill which I have set forth, dated September 1, 1904, which was paid to and received by the defendant on September 17, 1904. It did not appear that either party took any further step in the matter as to the alleged renewal in any way.
It is settled that an agreement to receive the premium within a reasonable time after it is due may be inferred from the dealings of the parties. ( Kelly v. Security Mutual Life Ins. Co., 106 App. Div. 352, 355, citing De Frece v. N.L. Ins. Co., 136 N.Y. 144, and Kenyon v. K.T. M.M.A. Assn., 122 id. 247.) I think that the evidence was sufficient to sustain a finding that such was the course in this case. It was represented by the defendant that the payment of the premium renewed the policy, and credit had been extended for the first and the only premium theretofore payable. Under the decisions in Bowman v. Agricultural Ins. Co. ( 59 N.Y. 521) and Church v. La Fayette Fire Ins. Co. (66 id. 222) such fact warranted a submission of this question to the jury. The extension of credit upon the first premium had been for 59 days from the date of the policy, and payment had been made 17 days after the bill was rendered. In the face of such periods and in the absence of any action towards the cancellation of the policy, the jury would have been warranted in the finding that the credit on the second period extended over the day of the accident. It is admitted that the premium was tendered and refused on September 1, 1905. To apply the test suggested in Sheldon v. Atlantic Fire Marine Ins. Co. ( 26 N.Y. 460), if the defendant had sued the assured for the premium would not his conduct have warranted a finding that he had accepted the renewal and was, therefore, liable for the premium? I think so. In Shay v. National Benefit Society (54 Hun, 109) it was held that the act of the defendant in sending out a second notice was an invitation to the assured necessarily involving a waiver of any existing forfeiture and an implied promise to accept the assessment within the period as originally required. So far as the provision in the policy "This policy shall not take effect unless the premium is paid previous to any accident under which claim is made," I think that the defendant is in no position to raise it as applicable to a time within such extension of credit. This further provision is also invoked by the defendant: "No claim hereunder shall be valid unless written notice of any injury, fatal or non-fatal, for which claim can be made, is given to the Company at Hartford, Connecticut, or to the agent whose name and address are printed hereon, within ten days from the date of accident." It appears that on the 7th of August, two days after the accident, the witness Wood went to the office of the defendant and there said that he wished to report the death by accident of the assured and that thereupon a clerk wrote on the back of the bill for premium "Beach Lake, Penn., 4.30 P.M., Saturday." The assured was drowned at that place at that time. On the following Wednesday the witness returned and asked for claim blanks to fill out. The witness informed the clerk that his errand concerned the death of the assured. The clerk replied that the company repudiated the case, and asked the witness to see Mr. Whitney. The policy had been countersigned by Mr. Whitney, "Agent, Comptroller New York Office." Mr. Whitney himself refused the blanks, and said that there was no claim under the policy, that they ignored it and, therefore, they refused to give out the blanks. On the 18th of that month the beneficiary telegraphed to the main office notice of the death, specifying the accident, the time and the place, and the same day wrote to the main office repeating the particulars, stating the conduct and attitude of Mr. Whitney and repeating a request for blanks. This provision must receive a "liberal and reasonable construction in favor of the beneficiaries under the contract." ( Trippe v. P.F. Society, 140 N.Y. 26; Kerr Ins. 466.) I think that there was a substantial compliance with the provision in view of the attitude of the defendant. In fact it seems to me that this attitude of the defendant "cut at the very root of the mutual obligation" and precludes the defendant from complaint of further non-compliance. ( St. Louis Beef Co. v. Casualty Co., 201 U.S. 173, 181.) The evidence was sufficient to sustain the finding of fact of accidental drowning. Under the circumstances the presumption was that the death was due to accident rather than suicide. ( Mallory v. Travelers' Ins. Co., 47 N.Y. 52.)
The judgment and order should be affirmed, with costs.
WOODWARD, HOOKER, GAYNOR and RICH, JJ., concurred.
Judgment and order affirmed, with costs.