Opinion
3 Div. 331.
April 18, 1918. Rehearing Denied June 20, 1918.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Steiner, Crum Weil, of Montgomery, for appellant. John R. Tyson, of Montgomery, for appellee.
The sole question in this case is whether plaintiff is entitled to recover an amount equal to the face of the policy and one-half of the premiums paid, as for the death of the insured within the specified term of insurance, or whether he can recover only the amount of the cash surrender value of the policy, as for the optional benefit chosen by the insured just before his death, and payable to him on November 16, 1916, if he was living on that date.
The policy is in the form of what is known as tontine insurance, and by its express terms the death benefits here claimed are payable only if the death of the insured shall occur before the 16th day of November, 1916, or if, at the end of the tontine or accumulation period, the policy has been continued in force by the insured's election of one of the first three options provided. Otherwise, his benefits are limited to options 4, 5, or 6, as he may have elected. On October 27, 1916, the insured elected to discontinue the policy and receive the cash benefits provided under the fifth option, and was duly notified that the amount due thereunder would be paid to him on November 16th. He died at 4 o'clock a. m. on the day designated, of course without having received the payment due.
We think that a fair interpretation of all the provisions of the policy leads to the clear conclusion that the original insurance period, and, with it, the tontine period, expired on the first moment of November 16, 1916, and that the death of the insured occurred after the elected benefit had become operative in lieu of the death benefit which was limited to the tontine period. It results that the judgment of the trial court was erroneous, and must be reversed. Let a judgment be here entered for plaintiff for $562.74, with interest from November 16, 1916.
Reversed and rendered.
ANDERSON, C. J., and MAYFIELD and GARDNER, JJ., concur.
On Rehearing.
The court is of the opinion that section 2893 of the Code, requiring the allowance of 10 per cent. damages on appeals from judgments and decrees for money, "if the Supreme Court affirms the judgment of the court below," does not apply to appeals in which the judgment is either reversed and rendered, or is substantially corrected as to its amount, and, as corrected, affirmed. The difference is one of form only, so far as this question is concerned. To correct and affirm in the instant case, as proposed by counsel, instead of reversing and rendering, would therefore be a useless ceremony.
Rehearing denied. All the Justices concur.