Creagh v. Life Ins. Co. of Virginia

BRICKEN, Presiding Judge. Appellee issued a policy upon the life of Frank E. Granade on April 2, 1930. The consideration for the policy was the payment .of a semiannual premium of $13.34 on April 2 and October 2 of each year. The initial premium was paid in full. The second premium, which was due to be paid on October 2, 1930, was not paid. On November 1, 1930, the insured paid part of that premium, namely, $4.45, and also the sum of 9 cents interest under a premium extension agreement, form 754-B. Again, on January 2, 1931, the insured made a further payment of $4.45, and 5 cents interest; this left a balance of $4.44 owing on the semiannual payment of $13.34 due October 2, 1930. The January 2, 1931, payment was. under a similar extension agreement, form 754 — B. The balance of $4.44 on said premium payment due and payable on March 2, 1931, was not paid. The insured died March 15, 1931. The policy sued on contains this provision : “If any premium be not paid when due, this policy shall be void and shall become lapsed as of the date to which premiums have been paid, and all premiums shall be forfeited to the Company, except as herein provided.” The receipt for premium extension provides : “1. Payment of balance .of premium extended to 3-2-31 * * * failure to pay said balance of premium when due, according to this extension agreement, shall with or without notice to any party or parties interested therein, render said policy ipso facto null and void.” The case was tried by the court below, without a jury, on an agreed statement of facts, of which the foregoing is an abbreviation, but all that is material to a decision of the question of liability vel non of the insurance company. A judgment was rendered for the defendants in the court below. The appellant contends that the case is controlled by section 8371 of the Code of 1923, which provides: “No life, nor any other insurance company, nor any agent thereof, shall make any contract of insurance, or agreement as to policy contract, other than is plainly expressed in the policy issued.” The appellant’s theory is that when the forfeiture occurred on October 2, 1930, for failure to pay the semiannual premium due on that date, instead of invoking a forfeiture for nonpayment of that premium, the company led the insured to surrender his option to abandon the policy and escape liability for premiums and to, instead, make a partial cash payment and become liable for the balance. This, it is asserted, amounted to a waiver and put the right of forfeiture beyond recall; that the provisions of the premium extension agreement, not being in the policy, fall under the ban of the statute. The appellee’s position is well stated in its brief as follows: “The extension agreement here involved was not a payment of the premium, nor was it an extension of credit for the premium. It merely extended the time for the payment of the balance of the premium, reserving to the insurer its contractual right, contained in the policy, that the policy would lapse for non-payment of premium. It was a conditional and limited waiver of the contractual right to lapse the policy for non-payment of premium. Being but *266 a conditional waiver, and imposing no new contractual obligation, it was not ‘an agreement as to policy contract’ within the meaning of the statute.” As we see it, the controlling question is: Was the premium extension agreement an “agreement as to policy contract,” within the meaning of the statute? We have consulted the cases cited by counsel for respective parties. We agree with counsel that the exact question is up for the first time in this case in this state. We hold that the transaction between the parties postponed the time for payment of premium, on terms mutually assented to. One of the terms was: “It is distinctly understood that any partial payment of said premium made at the time of this agreement ¿hall not avail to continue said policy in force if the extended portion of the premium is not promptly paid at its maturity.” An agreement to extend the time for paying a premium does not appear to be an agreement as to policy contract. It is not an agreement as to the contract at all; it is an agreement as to the extension of time of paying a premium. We therefore hold that the court below correctly ruled that the insurer was not liable, and the judgement there rendered for the defendant is- affirmed. Affirmed.