Winindger v. Globe Mut. Life. Ins.

30 F. Cas. 301, 3 Hughes 257, 1878 U.S. App. LEXIS 2116

• Court: U.S. Circuit Court for the District of Eastern Virginia
• Decided: November 14, 1878
• Status: Published

Opinion

HUGHES, District Judge,

declined to give any of these instructions iu the form in which they were asked for. He said:

A policy of insurance could only be kept alive in general by the payment in. advance, at the beginning of each year insured for, of the annual premium. That the payment in advance of the premium was an essential element of an insurance contract. That on a failure to make this payment at the beginning of any year, the policy lapsed by its very terms. That the policy now sued upon provided that it might be renewed after default, if the premium should be paid within thirty days after the beginning of each year. But It must be borne in mind that the policy lapsed at the beginning of the new year, after default, and that payment within thirty days but renewed what had expired. The agreement in this case to accept quarterly instalments only changed the times and amounts of the payments, not the nature of the transaction. If the annual payment was not made by the beginning of each new year the policy lapsed. The payment in advance of a quarterly instalment of this premium only operated to revive and renew for the ensuing three months what had lapsed and expired. If, therefore, any quarterly payment was shown not to have been made, then the policy had not been revived, had not been renewed, and there could be no recovery.

The judge then instructed the jury as follows: “There are two questions upon which the jury are to pass in this trial, namely: First, whether the premium due the 10th October, 1877, was paid; and, if it was not paid, second, whether Winindger’s neglect and failure to pay it before his mortal illness was caused by the defendant, or its agent, Mr. Griffith, inducing him to believe that he might neglect to do so to the extent that he actually did neglect it, without losing the benefit of his policy. The court accordingly gives the following instructions: 1st. If the jury believe, from the evidence, that Winindger did not pay the October quarterly instalment of the premium, then they must find for the defendant; unless, 2nd. They believe, from the evidence, that Winindger’s neglect to pay it was induced by the conduct of the defendant or Mr. Griffith; and if they believe that his failure to pay was so induced, they must find for the plaintiff. 3rd. The court also instructs the jury that a tender of a past-due premium for -or by the insured during his mortal illness, does not of itself save a policy otherwise forfeited.”

The jury then retired to their room, and after a deliberation of about twenty minutes brought in the following verdict: “We the jury .find for the plaintiffs, and assess their damages at $2,000, with interest thereupon at six per cent, from April 13th, 1878.”

Mr. Walke entered a motion to set aside the verdict as contrary to the law and the evidence, and both counsel agreed to submit the motion to the court without argument. The court accordingly took the motion under advisement

On a later day In the term the verdict was set aside, and a new trial ordered. The case was afterwards compromised.