McCall v. Prudential Insurance — 98 A.D. 225

Majority

p. 225

Rachel McCall, Respondent, v. The Prudential Insurance Company of America, Appellant.

Headnote

Life insurance — default in payment of premiums — insufficiency of an affidavit as to service of notice on the policyholder — it must identify the policy.

Mere default in the payment of the premium due on a life insurance policy during the period of one year from such default does not operate to forfeit the rights of the insured; it is only where there has been a default coupled with the notice prescribed by section 93 of the Insurance Law (Laws of 1893, chap. 690, as amd. by Laws of 1897, chap. 318) that the rights of the insured are forfeited.

The affidavit which section 93 of the Insurance Law declares shall be presumptive evidence that the notice prescribed by the section has been duly given, should show to the court the contents of the notice in order that the court may be able to determine whether the notice sent complied with the requirements of the statute.

An affidavit which does not identify the particular policy to which the notice related is ineffective.

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 15th day of December, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 11th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Thomas F. Magner, for the appellant.

Charles L. Van de Water [ Charles N. Morgan with him on the brief], for the respondent.

On the 6th day of July, 1900, the defendant in this action made and delivered its contract of insurance upon the life of plaintiff’s son, the policy being made payable to the latter’s wife. The policy was for. $1,000, the annual premium being $24, payable quarterly. The first year’s premiums were paid, but in February, 1901, default was made in the payment of premiums. Subsequently the defendant indorsed upon the policy in suit a provision agreeing to pay the amount of the insurance to the plaintiff, the wife of the insured having died in the meantime, and in September, 1901, the plaintiff paid to an agent of the defendant $24, taking a receipt which is claimed to have been conditional upon the defendant reinstating the policy, and on the twentieth of October of the following year the insured died. Proofs of death were duly made, and the defendant refused to pay the amount of the policy, whereupon this action was brought. The learned court at Trial Term, upon motion of the plaintiff, directed a verdict at the close of the defendant’s case, and from the judgment entered appeal comes to this court.

Upon the trial the defendant was permitted to amend its answer by alleging that the policy had been forfeited by reason of the failure of the insured to pay the premiums upon the policy. Under this amendment the defendant introduced in evidence an affidavit of one of its clerks to the effect that a notice had been mailed to the insured in December, as required by section 92 of the Insurance Law (Laws of 1892 chap. 690), as amended by chapter 218 of the Laws of 1897, and introduced a witness to testify that no payments had been made to the company subsequently and rested. Thereupon the court, upon motion, directed a verdict for the plaintiff, holding that the affidavit did not have any legal effect, being a mere conclusion on the part of the person making the affidavit. An examination of the affidavit convinces us that the learned court did not err in thus disposing of the case. The statute provides as follows: “No life insurance corporation doing business in this State shall within one year after the default in payment of any premium, installment or interest declare forfeited or lapsed, any policy hereafter issued or renewed * * *, nor shall any such policy be forfeited, or lapsed, by reason of nonpayment when due of any premium, interest or installment or any portion thereof required by the

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terms of the policy to be paid, within one year from the failure to pay such premium, interest or installment unless a written or printed notice stating the amount of such premium, interest, installment, or portion thereof, due on such policy, the place where it shall be paid, and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured, * * * at least fifteen and not more than forty-five days prior to the day when the same is payable.” It also provides that this notice must contain a statement to the effect that, in the event of failure to make such payments the policy will be forfeited, etc., and that “ the affidavit of any officer, clerk, or agent of the corporation, or of any one authorized to mail such notice that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given.” The affidavit offered and received in evidence does not state that any notice was given “at least fifteen and not more than forty-five days prior to the day when the same is payable.” It says that on the “ 6th day of December, 1901, he mailed at the general post office, in the City of Newark, to O. H. McCall,. at 11th avenue, Whitestone, N. Y., a notice stating the amount of premium on his policy, the place of payment, the person to whom payable, and the time when the premium would fall due, and that if such premium was not paid on or before the date mentioned in said notice, the policy and all payments thereon would become forfeited and void; that said notice was duly addressed as above set forth and mailed to the person above referred to at his last known post office address; and that postage on said notice was prepaid by said company.” There is nothing to identify this alleged notice of December sixth with the policy in suit; it appears from the record that he had various policies, and he might have had a dozen policies with the defendant, but the affidavit does not disclose anything from which the court could determine that this notice had any relation to the policy involved in this action, assuming the affidavit to be good in other respects. But the affidavit, to meet the legitimate requirements of evidence, should show to the court the contents of the notice, that the court might be able to determine whether the notice as sent complied with the requirements of the statute. The defend

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ant having failed to- show by affidavit that the insured ever had any notice of the matters required by the statute in relation to the policy in suit, it follows that it has failed to establish the defense put forward in its amended answer. Here default in payments, during the period of one year from such default, does not operate to forfeit the rights of the insured; it is only where there is default in payments, coupled with the notice prescribed by the statute, that the rights of the insured are forfeited (Strauss v. Union Central Life Ins. Co., 170 N. Y. 349 , 356), and the defendant having failed to show that it ever gave the insured such notice, the plaintiff is entitled to recover.

We are the -more willing to arrive at this conclusion, fully justified by law, because it appears that the defendant, by one of its local agents, received the premium in September which was defaulted in February, and that between the alleged default and the time of making the payment the defendant company indorsed upon the policy an agreement to pay to the plaintiff the amount of the insurance, the wife of the insured having died. It is hardly in a position now to claim the defense which it has been permitted to offer, but which is inadequate to defeat the just claims of the plaintiff.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.

Cases cited

Strauss v. Union Central Life Insurance 170 N. Y. 349 N.Y. 1902-04-01 at 356 p. 228