Sullivan, Kolovsky and Carton. Carton, J.A.D. (dissenting).
Plaintiff appeals from the dismissal of her suit for the proceeds of a life insurance policy of which she was the named beneficiary.
On October 19, 1962, defendant, The Prudential Insurance Company of America (Prudential), issued a $16,000 policy insuring the life of Frank L. Bruni. The policy names Anna A. Bruni his wife, plaintiff herein, as beneficiary. Premiums on the policy were payable on a monthly basis at the rate of $16.15 per month payable on the 19th of each month. Under the policy a grace period of 31 days was allowed to make payment of a premium in default. If a premium remained unpaid at the end of the grace period, the policy thereupon terminated. The policy specified that
no agent of the company had the authority to extend the time for payment of a premium or to waive a forfeiture of the policy. It also provided a method of obtaining reinstatement of a lapsed policy upon certain conditions.
Monthly premium payments were duly made on the policy for October, November and December of 1962 and January of 1963. The premium payment due February 19, 1963 was not paid on time nor within the 31 day grace period thereafter. On March 31, 1963 the insured signed an application for reinstatement of the policy which was approved on April 11, 1963. The application shows that premiums for the months of February and March were paid under the application.
The April premium was not paid when due nor within the 31 day grace period thereafter. On June 3, 1963 both plaintiff and her husband signed an application for reinstatement of the policy which was approved on June 11. The application shows that premiums for the months of April and May were paid under the application.
The June payment was not made when due, nor within the 31 day grace period thereafter. On August 18, 1963, the insured signed an application for reinstatement of the policy which was approved on September 16. The application shows that premium payments for the months June, July and August were made under the application.
Plaintiff testified that the September premium payment was made in cash and within time to defendant's agent.
The October premium was not paid when due nor within the 31 day grace period thereafter. However, by check dated November 23, 1963, and enclosed in an envelope postmarked November 26, premium payments in the amount of $32.30 were forwarded to defendant.
Plaintiff testified that this check covered premiums for the months October and November. Defendant's contentions, as set forth in the pre-trial order, were that the check represented premium payments for the months of September and October and that on November 29 the defendant wrote to
the insured acknowledging receipt of the check but stated that the policy had lapsed and that defendant's agent would get in touch with the insured regarding reinstatement.
Plaintiff testified that in the month of December, just before the holidays, defendant's agent came to the Bruni home and asked for the December premium payment. Plaintiff tendered him the amount of the premium in cash but the agent refused to accept it. He said that he had not yet cashed the check for the October and November payments and that he wanted a single check for the premium payments for the months of October, November and December. Plaintiff told the agent that she did not have enough money in her checking account to make out a check in that amount, whereupon the agent said that he would be back after the holidays. He left with Mrs. Bruni the uncashed check for $32.30. Mrs. Bruni denied that the agent told her that another application for reinstatement would have to be filed.
Mr. Bruni died on December 30, 1963. When plaintiff made a claim for the proceeds of the policy the company refused payment on the ground that at the time of Mr. Bruni's death the policy had lapsed for non-payment of premiums. This suit followed.
At trial, and upon the completion of plaintiff's presentation of evidence, the trial court granted defendant's motion for a dismissal of plaintiff's suit on the ground that the evidence showed that the policy was in default and no evidence of waiver was presented. As heretofore noted, plaintiff appeals.
Accepting plaintiff's testimony at face value, it is undisputed that on December 30, 1963, when Mr. Bruni died, premiums on the policy due October 19, November 19 and December 19 remained unpaid. It is also undisputed that on November 23 or 26, when the check for $32.30 was mailed to defendant, the October payment was in default and the 31 day grace period for paying it had expired.
Plaintiff claims that defendant waived its right to a strict enforcement of the policy provisions by its conduct since
on previous occasions premium payments were accepted late and beyond the grace period. Plaintiff concedes that applications for reinstatement were made by the insured and approved by defendant on these occasions. However, it is argued that according to plaintiff's testimony defendant's agent had these applications signed in blank without explaining their nature or meaning with the result that reinstatement was not treated by the parties as a condition precedent to the acceptance of premiums beyond the grace period, nor were the applications treated as conditions precedent to the continuation of the life of the policy.
We see no basis for a claim of waiver. On each occasion when the premium remained unpaid beyond the grace period the policy was treated as having lapsed and an application for reinstatement was required. Rather than a waiver, the proofs indicate strict adherence by defendant to the provisions of the policy.
Plaintiff argues that the October 19 and November 19 payments were properly tendered and were retained by defendant until the middle of December, continuing the policy in full force and effect until the death of the insured. This is not the fact. The grace period for making the October 19 payment expired 31 days thereafter. Even on plaintiff's own story, no tender or payment of this premium was made by November 19. At that time the policy lapsed and premiums tendered thereafter could not revive the policy in the absence of reinstatement.
Plaintiff testified that when the agent came to her home in late December he did not tell her that another application for reinstatement would have to be filed but merely said he would be back after the holidays. However, as heretofore noted, the policy specifically provided that no agent had the authority to extend the time for payment of a premium or to waive a forfeiture.
We agree with the trial court that on plaintiff's own proofs it appeared that the policy had lapsed ...