ARK.] NATIONAL EQUITY tIFE . INS.. CO. PARKER. 1041 NATIONAL EQUIT ' Y LIEE INSURANCE ColuPANY v. PARKER. - 4-3400 Opinion delivered March 12, 1934. INSURANCE—NONPAYMENT OF PREMIUM — INSTRUCTION. L -Where .a policy was delivered on July 1, 1931, on an adVance *payXnent of a monthly . premium and insured died March 15, 1932; refusal of the court, as 'requested, to charge ' that the-policy lapsed at the end of the monthly period, towit on September: 1, 1931, if the only premium paid was the advance payment, held error. Appeal from Dallas Circuit Court ; *Patria Renry, Judge; reversed. S. F. Merton and M.4. Harrison, for appellant. Hie (6-Hicie and T. D. Wynne; for appellee. - SmItn, J. -Appellant issued a policy of insurance upori the life. of .Jos'eph W. Parker, payable upon his death to his wife, which contained this recital: "This Policy-is issued in consideration of- the application here-for;.a copy . of 'which is attached hereto and made a .part hereof, and of the'payraentin adVance of seventy-six ana 08/100 dollars, being the, premium for 'one. Year's- terrn - insurance from the date hereof and:the advance reserve required by law, and the further payment of a like amount on or before the 1st day..of 'July in every year
1042 NATIONAL -EQUITY LIFE INS. _PARKER. [188 _thereafter during the continuance of this policy." The policy was dated July 1, 1931. The insure.d ,died March - 15 i , 1932; :and this, suit 'was brought to enforce -payment of the policy, and from a judgment awarding that relief is this appeal. The insurance company' defended upon the ' ground that, upon the .written application of the insured, the terms of payment of the premium had been changed from an annual paynient. to monthly payments, and that' only one . monthly payment had been made. -There was indorsed upon -the back of the • policy the amount of premium to be paid if the payments were made annually, semi-annually, qfiarterly, or . monthly, the amount of the premium if paid monthly being $8.70 per month. A writing, which purported to be an application to change the plan of premium payments, to which the name, "Joseph W. Parker," was signed, was offered in evidence, but his Wife and brother-in-laW testified the-writing _ was not the signature of the insured. The agent ,who wrote' the application. and _delivered the policy testified . that the insured signed the application in his presence, afid•that the change of plan of payment was made-as requested, and the insured made an initial monthly payment of $8.70 ,upon the delivery of the policy. - Testimony on the part of • the insurance cora-pany was to the • effect also that 'no' other payment was ever made, although monthly notices were sent to the insured of the amount and date of his payment, as well as a notice to the effect that the insurance would be suspended unless payments were made, and another notice to the effect that• the. insurance had been canceled.-upon the books of the company. because the payments. had not been made. - . The coUrt charged the jury that the posSession of the policy . by the insured at the time Of his death raised the presumption • that the _policy had been properly delivered -to him after the performance of all conditions precedent necessary to put it in force, and that the burden was upon the defendant insurance company to show that . the annual premium had not been paid, and that a verdict
ARK.] NATIONAL EQUITY LIFE INS. CO . v. PARKER. 1043 should be returned for the plaintiff unless this burden was met by the defendant. The defendant requested—but the court refused to • give—an instruction numbered 4 reading as follows : "You are instructed that if you believe from the evidence in this case that the only premium paid by Joseph W. Parker was the monthly premium of $8.70 paid at or before the time of the delivery of the policy, then said policy lapsed at the end of 31 days . grace period on Sep-tember 1, 1931, and you should find for the defendant." This instruction so clearly and so correctly presents the controlling issue of fact that, we think it was error to refuse to give it. It is not contended that the instruction is incorrect, but it is asserted that the refusal to give it was not prejudicial error, for the reason that the court had given, at plaintiff 's request, an instruction numbered 3 which covers it. This instruction numbered 3 reads as follows : "The court instructs the jury that • the policy in suit was issued on an annual premium payment basis, and the burden of proof is upon the defendant company to show by the greater weight of the evidence introduced in this case, that subsequent to the issual of the policy the premium payiaent basis was changed by mutual agreement to a monthly payment basis." We think, however, the court should have given appellant's instruction numbered 4, although appellee's instruction numbered 3 had been given. Instruction numbered 3 declared the law to be that the policy had been issued upon an annual premium payment basis, and not upon a monthly premium payment basis, and that the burden was upon the defendant to show that the premium payment basis had been changed by mutual agreement to a monthly'payment basis. Rat there it stopped; and there appellant's instruction numbered 4 hegan, and the jury should have 'been told, as appellant's instruction numbered 4 declared the law to be, that a single monthly premium of only $8.70 would not suffice to keep the insurance in effect beyond September, 1, 1931, which date was some months prior to the date of the death of
the insured. -Wa -shington : „Fidelity NatiOnd Insicrance Co. v. Anderson, 187. Ark. 97. 4,• 63 S. W. -(2d) 535: - Appellant 's instruction: numbered -4 should have been given, and for this error the judgment will . 13e reversed, - and the- cause will be remanded for a . new trial. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.