Miesell v. . Globe Mutual Life Insurance Co. , 1879 N.Y. LEXIS 468 ( 1879 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The 28th day of February, 1874, was one of the quarter-days fixed by the policy for a payment of premiums. Thirty days grace was given by the policy for each quarter payment. When thirty days had elapsed from that day, without payment of the premium having been made, the policy became void. It seems to be conceded that the payment to the agent of the amount of the premium due on that day was not an effectual payment to the defendant, and that the policy ceased to be binding upon it. It seems also to be conceded that it was in the power of the defendant to waive the forfeiture of the policy by reason of that non-payment. The defendant did propose to the assured such action, as when taken by him, should work a revivor of the policy. We are of the opinion that the assured did take that action, and that the defendant was bound by it, and that the policy was made alive again. He did pay to it the sum of the two premiums in arrear. He did produce to it the certificate of the medical man named by it, as to the state of health of the assured. The proposition was, that he should produce the certificate of his good health. The letter of the assured forwarding the certificate, speaks of it, as a certificate to his present state of health. That state, may have been shown by the certificate, to be good or to be bad. We have no direct evidence of what was the nature and conclusion of the certificate.

It is claimed that inasmuch as the certificate was referred to the medical board of the company, and was rejected by that board, that such rejection must have been for the reason that it did not declare a good state of the health of the assured. The testimony does not disclose for what reason the medical board rejected it. If the inference would ever be permissible, that it was for a lack of sufficiency, there is not room for it on the facts of this case; for the defendant did not take that ground, but put its refusal to accept the certificate and the payment of the premiums, on the pretext that the time for the assured to reinstate himself had passed. But we have the inference; from the sending of it by the assured, in compliance with the condition put upon him by the defendant; from the fact that the defendant did not produce it upon the trial; and from the fact that no fault is found by the defendant with the sufficiency of it; that it was complete, as a declaration of the good health of the assured. And we are authorized to assume that the certificate did, in words, make statement that the health of the assured was good. It is needless to consider, whether the proposition to the assured, included a condition that the certificate should be satisfactory to the defendant. The return of it was not put upon the ground that it was unsatisfactory. Besides, it was needful, if that ground was taken, for the defendant to show that it was taken with reason. It could not be unsatisfied with the certificate, capriciously. That which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with: (Folliard v. Wallace, 2 J.R., 395; Brooklyn v. BrooklynCity R.R., 47 N.Y., 475.) Nor is the reason, in fact, given by the defendant, for returning the premium to the assured, a good one. Their proposition was made to him by a letter, of date 29th May, 1874. There is nothing to show that it was not in the power of the defendant lawfully to make and keep it. He had a reasonable time in which to accept and comply with it, apart from the thirty days of grace given by the policy. He did comply with it in eight days. Considering all the circumstances of the case, he took no unreasonable time. The proposition was made on the 29th of May, looking to the future from that day. It was clearly frivolous, to reject his compliance with it, on the ground that his time had expired on the 28th May, a day before the proposition left the office of the defendant. It is stated in the letter of rejection, that a pamphlet is enclosed, showing that the defendant had no option but to reject. That pamphlet is not in evidence; nor is anything shown from which it appears that the defendant had not a lawful right to exercise an option.

The point that the assured did not make tender of the premium on the quarter-days, after the rejection of his compliance, is not tenable. The trial court found that the assured did not make tender of them, in consequence of the refusal of the defendant to receive the premiums paid and tendered by him for February and May. It is insisted that there is no evidence of this. True, there is no express testimony thereto. But surely the inference is far from strained, that after his compliance with the proposition of the defendant for the revivor of the policy, and the rejection of it so inconsistently, he took no farther like action, because of his conviction therefrom that farther action would be futile.

That his action was correct in law needs no further discussion in this court; (Shaw v. Republic Life Ins. Co., 69 N.Y., 286;Hayner v. American Popular Life Ins. Co., id., 435.)

The case cited by the appellants from the Connecticut Court, (Day v. Conn. Gen. Life Ins. Co., 7 Cent. Law Jour., 482) is not in conflict. The point did not there arise. Though it did not, the court did intimate, (as the views of that court appear in that report), that perhaps a third course was open to the plaintiff; to tender the premium, and if refused, wait until the policy by its terms became payable, and then test the forfeiture in a proper action on the policy.

Nor was the assured bound, at once, on the rejection, to bring his equitable suit to obtain a judgment that the policy was alive: (Shaw v. Republic Life Ins. Co., supra.)

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.