Truly v. Mutual Life Ins.

Smith, C. J., delivered the opinion of the court.' (After stating the facts as above). The letter written by Hunoldstein may be left out of view for the reasons: First, under the allegations of the bill he was a soliciting agent only; second, it was written before the issuance of the policy; and, third, was not relied on by appellant in determining whether or not he would accept — 460 — the policy after ascertaining' that it did not contain the promised option. The bill alleges, and the demurrer admits that Bowles was the general agent of appellee, and we will assume, without deciding, that appellant is correct when he states, in effect, that as such general agent, he had full authority to do any and all things with reference to the issuance of the policy that appellee itself could do. The question then presented on the direct appeal is: Does the letter of Bowles, together with the statement which accompanied it, chang'e the policy so as to make it guarantee to appellant a paid-up policy for five thousand four hundred and ninety dollars at the end of twenty years 1 The letter itself refers to the statement for information relative to the particular option in question, and to the fact that “these paid-up values” (that is, the amount of a paid-up policy to which the insured would be entitled at the expiration of each year) “are compulsory under the laws of New York, and the amounts are fixed by law.” An examination of the policy will disclose that this statement of Bowles was correct, for, as hereinbefore set out, the policy contains an express provision that, after the payment of three full annual premiums, the company will issue a paid-up policy “for the amount required by the •provisions of the act of May 21, 1879, chapter 347, Laws of the state of New York.” The statement which accompanied the letter was undoubtedly intended to explain or “illustrate” the various options to which the policy holder would be entitled after the expiration of twenty years; but it is clear that the values therein given were not intended to be guaranteed, but were mere estimates. The statement is expressly made that: “The cash and equivalent values include the legal reserve, the amount of which is specifically guaranteed, and the surplus. What this surplus will be in the future — 461 — settlements will necessarily depend upon subsequent experience. The surplus incorporated with the cash value in this example is to be understood as an approximate illustration based upon actual experience in policy settlements of recent date.” This language can only mean' that the cash and equivalent values stated in the illustrations of the various options are mere estimates “based upon actual experience in policy settlements of recent date.” If the amount for which a paid-up policy was to be issued at. the end of twenty years depended in part upon the amount of surplus then to be apportioned to the policy, and if what that surplus would then be depended “upon subsequent experience,” it was, of course, impossible for Bowles, or any one else, to tell before the expiration of the twenty years what that amount would be. The only guaranty contained in this explanation of these options is that of the‘legal reserve which in express language was “specifically guaranteed, ’ ’ which guaranty was followed by the statement that the surplus would depend upon subsequent experience, and that “the surplus incorporated with the cash value in this example is to be understood as an approximate illustration.” Moreover, this statement deals: First, with the options available should the'insured be living at the end of the twenty years; and, second, with the amounts to be paid the beneficiary in the event of the death of the insured during any one of the twenty years. The first begins with the heading, “Illustration,” and in the body of the statement it is expressly stated that, ‘ ‘ This example is to be understood as an approximate illustration,” while that portion of the statement dealing with the amount to be paid in event of the death of the insured begins with the heading, “Insurance and Contingent Profit, Guaranteed,” followed by the express declaration that, “The following statement shows the amount payable under policy should death occur,” etc. — 462 — It follows therefore that neither this letter nor the statement which accompanied it in any manner changed or varied the terms of the policy, and consequently appellant’s right to a paid-up policy depends upon the clause of the policy hereinabove set out. Williams v. New York Life Ins. Co., 122 Md. 141, 89 Atl. 97; Tourtellotte v. New York Life Ins. Co., 155 Wis. 455, 144 N. W. 1117; O’Brien v. Equitable Life Ins. Co., 173 Mich. 432, 138 N. W. 1086; Langdon v. Northwestern Mutual, 199 N. Y. 188, 92 N. E. 440. That the conclusion at which we have arrived is not in conflict with Germania Life Insurance Company v. Bouldin, 100 Miss. 660, will be disclosed by a comparison of the paper attached to the policy in that case with the paper which accompanied the letter of Bowles in the case at bar. On cross-appeal the question presented is: Is appellant entitled to a decree under the allegations of the bill, for a policy in the sum of three thousand eight hundred and fifteen dollars? It is true that the bill alleges that appellee offered to issue a paid-up policy for this amount, but that fact is immaterial for the reason that it was declined by appellant, and the only paid-up policy that appellee can be compelled to issue is such an one as is provided for by the laws of the state of New York, under which it seems that the amount thereof is dependent upon “the reserve on such policy, including dividend additions calculated at the date of the failure to” pay any annual premium. In order to ascertain the amount of this policy, therefore, an accounting will be necessary, and the bill is not framed in such manner as to entitle appellant thereto. In fact, it repudiates any such right and demands solely a decree for a policy in the sum of five thousand four hundred and ninety dollars. This seems to' be conceded by counsel for appellant, for their brief contains no argument in support of any right in appellant for a decree directing appellee to issue to him any paid-up policy other — 463 — than the one for the snm of five thousand four hundred and ninety dollars. The conclusions at which we have arrived render it unnecessary for us to respond to that portion of the argument of counsel for appellee wherein they contend that under the rule announced in Mutual Benefit Co. v. Willoughby, 99 Miss. 98, 54 So. 834, Ann. Cas. 1913D, 836, appellant is not the proper party to institute this shit. The decree of the court below will be reversed, and the bill dismissed, without prejudice to the right of appellant to institute another suit in order to obtain from ap'pellee, in event he is entitled so to do, such a paid-up policy as is provided for by the original policy issued to him. Reversed. SUGGESTION OE ERROR. We. have given appellant’s suggestion of error careful consideration, *and must adhere to the views expressed in our former opinion, that option E of the statement which accompanied Bowles’ letter does not guarantee appellant a paid-up policy for five thousand four hundred .and ninety dollars, at the end of twenty years, but that these figures are a mere estimate of the amount of the paid-up policy to which the beneficiary in the original policy would be entitled, based upon past experience. This view of the matter is not only not in-conflict .with Insurance Co. v. Bouldin, 100 Miss. 660, 56 So. 609, but, ■on the contrary, is in full accord therewith, as will clearly appear from an examination of the language of the court at page 680 of 100 Miss., 56 So. 609, in dealing with the item of “surplus” provided for in the slip attached to the policy in that case. . In our original opinion, however, it was stated that: — 464 — “Appellant’s right to a paid-up policy depends upon the clause of the policy hereinabove set out (referring to the paid-up policy clause therein) . . . and the only paid-up policy that appellee can be compelled to issue is such a one as is provided for by the laws of the state of New York.” This language is withdrawn, and no opinion will be expressed relative to this feature of the controversy. Option E, omitting therefrom the marginal estimate of the amount of the paid-up policy to be issued at the expiration of twenty years, is as follows: ‘ ‘ Surrender policy and surplus for paid-up insurance payable at death. ’ ’ It is immaterial, therefore, in so far as the determination of this present controversy is concerned, whether or not this language provides for a paid-up policy different from that provided for in the original policy, for the reason that, conceding that'it does so provide, the bill is not framed in such a manner as to entitle appellant thereto.. What was said in the original opinion on the cross-appeal, with reference to the sufficiency of the bill under’ the paid-up policy clause of the original policy, is equally applicable here. Overruled.