Denlinger v. Union Natl Life Insurance , 1934 Ohio Misc. LEXIS 1383 ( 1934 )

OPINIÓN

By THE COURT

In brief this is an action to recover upon an accident policy of insurance on the life of Mr. Denlinger, the husband of plaintiff. When this policy was taken out.it is agreed that Mr. Denlinger was 68 years of age. At the death of Mr. Denlinger it is agreed that he was more than 70 years of age. The plaintiff claims in brief that the company having received and retained the premium payable August 21, 1931, and having sent notice of another premium February 2, 1932, notwithstanding the provisions of the policy, that the company has waived .any rights it might have under the terms of the policy.

The policy contained the following provision:

“The insured under this policy shall not cover any person under the age of 14 years or over the age of 70 years. Any premium paid to the company for any period not covered by this policy will be returned upon request.”

Other provisions of the policy are introduced in evidence and relied upon by counsel for defendant in error.’ We have considered the record in this case with care and also the briefs of counsel. Without attempting to review either the evidence or the authorities in detail w'e cannot escape the conclusion that this court is without authority to modify the expressions of the policy in reference to age limit. The policy contains the unequivocal provision that it “shall not cover any person over the age of 70 years and that any premium paid to the company for any period not covered by the policy will be returned upon request.”

Judge Patterson of the Common Pleas Court rendered an exhaustive opinion.upon the motion to direct a verdict in favor of defendant. The opinion forms part of the bill of exceptions. We think the judgment of the lower court must be affirmed for the reasons stated in detail in such opinion of Judge Patterson.

HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.