Weston v. State Mutual Life Assurance Co. , 234 Ill. 492 ( 1908 )

Mr. Justice Carter

delivered the opinion of the court:

Appellant contends that the defense of forfeiture of an insurance policy must be specially pleaded. Without passing on that question, it is sufficient to say that all the evidence heard on the case was offered by the appellant, and therefore she is in no position to urge that the defense of forfeiture cannot be proven under the general issue. Moreover, no question of this kind was made at the time of the trial, and even though the evidence in question had been introduced by appellee, an objection to the admission of thé evidence on the ground of variance would be regarded as waived unless specifically made on that ground and the objection pointed out in the trial court, in order that an opportunity should be given to amend the pleadings and obviate the objection. Traders’ Mutual Life Ins. Co. v. Johnson, 200 Ill. 359; Pettis v. Westlake, 3 Scam. 535; Winchester v. Rounds, 55 Ill. 451.

The most serious contention of appellant is,. that the trial court erred in instructing the jury to find a verdict for appellee; that, regardless of the letters as to the payment of premium passing between Ciardy. and Curtis, to render these policies invalid or unenforceable there must have been, during the lifetime of Curtis, an affirmative act of forfeiture or of disavowal on the part of the company, followed by notice to the assured. The policies in question contain no specific provision as to their being lapsed or forfeited for the nonpayment of premium. Appellee contends that these policies lapsed on September 30, 1899, by the non-payment of the quarterly premiums. The testimony in the record tends to show that if Curtis had paid the quarterly premium after September 30 and before December 30, 1899, ^ would have been necessary for him to furnish, at his own expense, a health certificate before the premium would have been received and the policies continued in force. While the evidence is not entirely clear on this last point, we think it shows conclusively that after December 30 Curtis would not only have had to furnish a certificate showing he was in good health, but that action would also have been required on the part of the company before the policies would have been considered in force, according to the rules of the company. This court has never decided the question of forfeiture raised on this record. In several cases policies have been construed which provided for forfeiture on failure to pay the premium.

Appellant contends that the payment of the quarterly premium was a condition subsequent, wfiile appellee insists it was a condition precedent. There is also a dispute between appellant and appellee as to whether this policy, under the ruling of the court, lapsed or should be held to have been forfeited. We do not think it is necessary to discuss either of these questions or distinguish as to the meaning of these words and phrases in order to reach a decision in this case. Manifestly, from the correspondence between Curtis and Clardy, especially in the light of Curtis’ letter of November 3, it must be held that Curtis understood that he was giving up the insurance. He was distinctly told in Clardy’s letter that the insurance could be kept in force in a certain way, and from that date until the renewal receipts were returned by Clardy to the company and these policies in question were marked on the books of the company as lapsed, Curtis never communicated with the company or its agent, or did anything to indicate that he wanted to keep the policies in force or thought they were in force. We think the conclusion is inevitable that by his own action he waived the right to have further notice from the company, even though it be admitted that the law required notice to be given him. Construed most favorably to appellant, the evidence would require that Curtis, under the offer given him in the letter of Clardy, must have complied with the conditions in Clardy’s letter previous to December 30, 1899, in order to have kept the policy in force up to that date. The waiver of the payment of premiums by a company for a'specified time is only valuable to the insured when payment or a loss occurred within that time. ( United States Life Ins. Co. v. Ross, 159 Ill. 476.) Even though Clardy wrote January 23, 1900, as testified by Curtis’ brother-in-law, Johnson, the policies being no longer in force could not be brought again into force by this letter of Clardy, notwithstanding he was general agent, without some action oh the part of the company itself.

In connection with the question just considered, appellant vigorously insists that the report made by the appellee company to the insurance commissioner of Massachusetts, and filed February, 1900, showing that these policies were in force December 31, 1899, was such an admission that the policies in question had not lapsed that the case ought to have been submitted to the jury. Witnesses for the company testified, on this point, that the report to the insurance commissioner of Massachusetts included all policies for which renewal receipts sent out to agents had not been returned and the exact status of which the ht>me office was not prepared to decide upon; that such policies were included to keep on the safe side of the Massachusetts law, and that the company so construed that law as to extend its application to any case in which there was any doubt. With this explanation concerning the report, its purpose and object, it furnished no evidence which in any way affected the contract of insurance between appellant and appellee. This act of the company did not in any way affect the actions of Curtis. He was not led to do or omit to do anything which he would otherwise have omitted or done. It is the agreement between the company and the assured that affects the question of waiver or payment of premium. The fact that the policies in question were included in this report is therefore, in our judgment, of no material weight or relevancy.

The president of the appellee company, in response to a letter from appellant’s counsel, wrote after Curtis’ death, among other things, “that nothing was ever paid on the policy, and therefore there was never any completed contract between Edward S. Curtis and this company.” It is contended by appellant that this declaration of the president estops appellee from now defending by claiming forfeiture on account of the non-payment of premiums. An insurance company is not restricted in its defense, in an action on a policy, to the reasons assigned in its refusal to pay, if it does not appear that the plaintiff has been misled or influenced to his injury by the omission or failure to set forth other reasons. (19 Am. & Eng. Ency. of Law,—2d ed.— p. 106, and cases cited.) The reasoning, also, of this court in Roberts v. Ætna Life Ins. Co. 212 Ill. 382, tends to uphold this conclusion, and nothing appears in Phenix Ins. Co. v. Stocks, 149 Ill. 319, or Traders’ Mutual Life Ins. Co. v. Johnson, supra, or the other cases cited by appellant, in conflict with such holding.

Appellant has, under many heads and subdivisions, in an exhaustive brief discussed various questions wherein it is claimed the court erred. We have not attempted to follow the order of the briefs in discussing the questions involved. We think, however, in what we have already said we have covered substantially all the material points raised. Some contentions as to the court’s refusal to admit evidence are not borne out by the record. Taking into consideration all the evidence offered by appellant, whether it was admitted or rejected by the trial court, we do not think any or all of it fairly tended to support appellant’s cause of action. The trial court ruled correctly in instructing the jury to find for appellee.

We find no reversible error in the record, and the judgment of the Appellate Court will accordingly be affirmed.

Judgment affirmed.