Opinion
4 Div. 57.
June 11, 1935. Rehearing Denied June 25, 1935.
Appeal from Circuit Court, Geneva County; Emmet S. Thigpen, Judge.
Suit by C. C. Faulk against New York Life Insurance Company. From an unsatisfactory judgment, plaintiff appeals.
Affirmed.
The complaint alleges that the original application made for the policy of insurance in suit was signed by plaintiff on August 17, 1920, said application providing that the insurance thereby applied for should not take effect unless the first premium be paid and the policy delivered to and accepted by the applicant during his lifetime, and unless otherwise agreed in writing the policy should then relate back to and take effect as of the date of the application; that said application being omissive in a certain particular, it became necessary to amend and complete it, which he did on August 24, 1920; that on completion of said application the policy was issued and delivered, and "that such policy took effect as of the date of such amendment and completion and on, to wit, August 24, 1920"; that while it appears on the face of the policy that the anniversary date shall be August 17th, yet as a matter of fact the anniversary date of said policy is of the date of its issue, to wit, August 24, 1920, and the date on which the application was amended and completed. It is further averred that plaintiff's application for disability benefits and proof in support thereof duly reached defendant prior to August 24, 1931, the actual date on which said policy was issued; that under the terms of the policy defendant was due him the sum of $500 payable on August 24, 1932, and is now due that sum with interest thereon. It is further averred that by reason of defendant's failure and refusal to waive premiums, he, in order to avoid a forfeiture, continued to pay premiums thereon, including the one due for 1931 and 1932, and that he is entitled to recover premiums so paid for said years with interest.
The agreed statement of facts, is, in substance, as follows:
On the 17th day of August, 1920, the defendant issued its policy of insurance upon the life of plaintiff, in the face amount of $5,000, payable to the estate of insured. Insured duly paid the annual premiums on said policy up to and including the 17th day of August, 1932. On August 17, 1931, plaintiff filled out a form furnished by the defendant, designated "claim for disability benefits," in which he made claim for total and permanent disability benefits in accordance with the provisions of said policy. On August 18, 1931, there was filled out an "Attending Physician's Report on Claim for Disability Benefits" on form furnished by defendant. Said claim for disability benefits, signed by plaintiff and the attending physician, were mailed to the Montgomery branch of defendant company and received there on August 19, 1931, and forwarded by mail to the home office of defendant and in due course of mail should have been received there on August 21, 1931.
"For the purpose of this trial it is admitted that on August 17th and 19th, 1931, and continuously to the date of the filing of this suit Mr. Faulk was totally and permanently disabled within the meaning of the policy provisions above quoted. The defendant company concedes that Mr. Faulk is entitled to recover the premium paid as of August 17, 1932, amounting to $184.55, with interest to date. The plaintiff claims that in addition to said sum he is entitled to receive an income payment as of August 17, 1932 with interest to date while the defendant contends that under paragraph 2 of Section 1 * * * no income payment will become due to the plaintiff until and unless he is totally and permanently disabled within the meaning of the policy provision on August 17, 1933."
Copies of the policy, the claim for disability benefits, and report of attending physician are made exhibits to the agreed statement of facts.
The trial court rendered judgment for the amount of the mentioned premium, with interest. Plaintiff has appealed.
Mulkey Mulkey, of Geneva, for appellant.
By the terms of the application, the policy is not effective until the first premium is paid and the policy delivered to insured. When this is done, the policy relates back to, and takes effect as of the date of, the application. This is the clear agreement of the parties as to the effective date. National L. A. Ins. Co. v. Bridgeforth, 220 Ala. 314, 124 So. 886. The provision in the policy that its anniversary was to be treated as August 17th was for the benefit of the company, operating to advance the payment of premiums. The actual date of issue of the policy was August 24th, and this fact could not be changed by the provision in the policy. The application referred to in the policy means a completed application. The one here was incomplete and imposed no obligation on the company until it was completed. Any doubt as to the true date of the policy should be resolved in favor of the insured.
Rushton, Crenshaw Rushton, of Montgomery, for appellee.
The policy specifically provides that disability benefits shall be payable one year after the anniversary of the policy next succeeding receipt of the proof. The policy itself recites that the anniversary of the policy is August 17th. There is no room for judicial construction. Mutual L. I. Co. v. Barrett, 215 Ala. 142, 110 So. 275. The application provides that the policy shall date from the application. The amendment to the application made no change as to this. There is a difference between the effective date and the anniversary date. This anniversary date is binding upon the company under the incontestable clause, 14 R.C.L. 1201; Mutual L. I. Co. v. Hurni Packing Co., 263 U.S. 167, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102, and is to be applied under the disability clause.
Parties, so far as are advised, may try their cases on such "agreed statements of facts" as they choose to enter into.
In the instant case appellant has, by formal, binding stipulation, agreed that the policy upon which he bases his suit was issued by appellee to him on the 17th day of August, 1920.
True, a serious question is raised as to the actual date of issuance of the policy, which marked the beginning of the relation of insurer and insured between the parties hereto (Lewis v. Brotherhood of Locomotive Firemen and Enginemen, 220 Ala. 270, 124 So. 889); but appellant, as we see it, is foreclosed, in this controversy, by his binding agreement that the date of issue was August 17th.
The record coming up here containing the recital that "for the purposes of this trial, the following are the facts necessary to a decision thereof," setting out the facts (as to the date of issuance of the policy sued on, as above), and signed by appellant's duly authorized counsel, we know of no authority in us to disregard said facts on the finding (if made) by us that the record, otherwise, shows a different state of facts.
So, for the purposes of this appeal, it appears, conclusively, that the policy, the basis of this suit, was issued on August 17, 1920.
The policy contains these, here pertinent, recitals:
"Premium. This contract is made in consideration of the payment in advance of the sum of $184.55, the receipt of which is hereby acknowledged, constituting the first premium and maintaining this Policy to the Seventeenth day of August Nineteen Hundred and Twenty-one, and of a like sum on said date and every Twelve calendar months thereafter during the life of the Insured until premiums for Twenty full years in and shall have been paid from the date on which this Policy takes effect.
"This Policy takes effect as of the Seventeenth day of August Nineteen Hundred and Twenty, which day is the anniversary of the Policy. If the Insured becomes wholly and permanently disabled before age 60, the payment of premiums will be waived under the terms and conditions contained in Section 1.
"Section 1. Total and Permanent Disability Benefits. Whenever the Company receives due proof, before default in the payment of premium, that the Insured, before the anniversary of the Policy on which the Insured's age at nearest birthday is 60 years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, — then * * *.
"1. Waiver of Premium. — Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year, and, in any settlement of the Policy, the Company will not deduct the premiums so waived. The loan and surrender values provided for under Sections 3 and 4 shall be calculated on the basis employed in said sections the same as if the waived premiums had been paid as they became due.
"2. Life Income to Insured. — One year after the anniversary of the Policy next succeeding the receipt of such proof, the Company will pay the Insured a sum equal to one-tenth of the face of the Policy, and a like sum on each anniversary thereafter during the lifetime and continued disability of the Insured."
It appearing that the policy was issued on August 17, 1920, and the policy stating that August 17th is the anniversary of same, we see no necessity for confusion as to the time when the first payment as for total disability benefits became due upon the facts shown in evidence in the court below.
It is undisputed that appellant's "proof" was not lodged with appellee until after August 17, 1931 (though before August 17, 1932).
Under the plain terms of the policy, then, his first total disability payment was due "one year after the anniversary of the policy next succeeding the receipt of such proof," or one year after August 17, 1932, to wit, August 17, 1933; he remaining all the while otherwise entitled to same.
The trial court's judgment was in accord with what we have said hereinabove, and the same is affirmed.
Affirmed.