Joseph N. Bongiovanni, Jr., Philadelphia, for appellant.
H. Francis DeLone and Barnes, Dechert, Price, Myers & Clark, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 626]
In this assumpsit action by the wife-beneficiary upon a life insurance policy issued to her husband, the trial judge directed a verdict for defendant and the court en banc refused plaintiff's motions for judgment n. o. v. and a new trial.
The policy, dated May 21, 1948, provided for quarterly premiums of $31.47. The second premium, due August 21, 1948, was not paid until after the grace period of 31 days had expired. On September 26, 1948, the husband was admitted to a hospital, suffering from military tuberculosis and tubercular meningitis. Four days after his admission, September 30, 1948, an agent of defendant's Philadelphia district office, called at appellant's home at her request, accepted from her $30 on account of the overdue premium, and gave her a receipt written on the back of his business card. On the following day another district office agent received $1.47, the balance of the premium. On October 5, 1948, appellant's husband died from the causes diagnosed upon his admission, and defendant's Philadelphia office learned of his death the same day.
Several provisions of the policy are pertinent: (1) 'All premiums after the first are payable, on or before their due date, at the Home Office of the Company, [at Chicago, Illinois] but may be paid to an authorized agent of the Company in exchange for an official premium receipt signed by the President, a Vice President
[ 167 Pa. Super. Page 627]
or the Secretary of the Company and countersigned by such authorized agent.' (2) 'No condition, provision or privilege of this policy can be waived or modified in any case except by an endorsement hereon signed by the President, a Vice President or the Secretary of the Company. No agent has power on behalf of the Company to make or modify this contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the Company by making any promise or representation or by receiving any information.' (3) 'This policy may be reinstated * * * upon receipt at the Home Office of evidence of insurability satisfactory to the Company and payment of overdue premiums with interest thereon from their respective due dates at five per cent per annum payable annually.'
The receipt issued by the agent was not the official receipt contemplated by provision (1) above, and no evidence of insurability required by provision (3) above was submitted to defendant. Nevertheless, appellant contends that the company accepted the premium unconditionally, without requiring proof of continuing insurability, and waived that requirement of the policy. The contention cannot be sustained. Appellant carried the burden of showing fulfillment of the conditions precedent to the right of reinstatement, and failed to discharge it. Mere payment of an overdue premium does not constitute a reinstatement. Selby v. Equitable Beneficial Mutual Life Ins. Co., 143 Pa. Super. 131, 17 A.2d 696.
The general principle is that where an insurance company retains overdue premiums beyond a reasonable time without requiring evidence of insurability, the right to such evidence may be found to have been waived. White v. Metropolitan Life Ins. Co., 22 Pa. Super. 501; Malchinsky v. Mutual Life Ins. Co., 90 Pa. Super. 1; ...