842 GAUGH V. SOUTHERN LIFE INS. CO . [179
GAUGH V. SOUTHERN LIFE INSURANCE COMPANY. Opinion delivered June 24, 1929. 1. TRIAL—EFFECT OF PARTY'S TESTIMONY. —Where the testimony of a party to a Guit is not corroborated, such testimony cannot be regarded as undisputed. 2. INSURANCE—DELIVERY OF POLICY.—Where an ins'ura,nce policy contains a clause stating that the policy shall not become effective until delivered, no liability arises thereon until delivery. 3. INSURANCE — WIMN POLICY IN FORCE.—Where a policy of life insurance was delivered on March 28, though dated on February 17, and nine monthly payments were thereafter made, and insured died on January 16 following, the policY was in force at insured's death, and the beneficiary was entitled to recover. Appeal from Sebastian , Circuit Court, Fort Smith District ; J. Sam Wood, Judge ; reversed. W. H. Runblazier and Joseph R. Brown, for appellant. Holland & Holland, for appellee. HUMPHREYS, J. Appellant instituted suit against appellee in the circuit court of Sebastian County, Fort Smith District, to recover $500 as beneficiary in a policy of insurance issued by said appellee upon the life of Ben Gaugh, the husband of appellant. Appellee filed an answer to the complaint, denying liability under the policy, on the ground that same had lapsed for nonpayment of premiums. The cause was submitted upon the pleadings, testimony and instructions of . the court, which resulted in a verdict and judgment in favor of appellee, from which is this appeal. At the conclusion of the testimony appellant requested the court to instruct a verdict in her favor, which the court refused to do, over her objection and exception. The trial court erred in refusing to peremptorily instruct a verdict for her. According to the undisputed testimony, the policy was not delivered to the insured until March, 1927, although dated February 17, 1927. It contained a clause stating that it should not become effective
ARK.] GAUGH V. SOUTHERN LIFE INS. Co 843 until delivered. It also contained the two following clauses : "In the case of monthly premiums.—All premiums shall be due on the first' day of each calendar month, and must be received by the company on or before the last day of each month." "Payment of premium under this policy will be due on the first day of April, 1927, and on the first day of each and every month thereafter." The undisputed testimony showed that nine monthly premiums were paid by the insured to appellee. The receipts for these payments show on their face that the payments were made for the months of March to Novem-ber, 1927, inclusive. The March receipt, dated Febru-ary, 1927, has a notation on the margin "3-26." Appellant testified, without contradiction, that S. H. Gregory, the local agent of appellee, brought the policy in question to their home the latter part of February, 1927, -and requested payment of the first premium; that she told him her husband did not get his pay until March 26, and that Mr. .Gregory made a notation on the margin of the receipt, "3 -26;" that be kept the receipt and policy, saying that he would return on that day and deliver the policy and collect the first premium; that he did not return until the 28th day of March, at which time she paid Mr. Gregory $1.75 in settlement of the first premium; that he handed her the receipt on which he had made the notation "3-26," and at the same time delivered the policy to her for her husband. It is true that S. H. Gregory testified, by reference to the policy and receipts, tbat the policy took effect from its date, February 17, 1927, and that payment of the premium in March was for the month of March, and not for April. But this could not have been true unless the policy was delivered the last of Feb-ruary or the first of March. Gregory did not gainsay the testimony of appellant to the effect that he delivered the policy on March 28, 1927. Her testimony to this effect is corroborated by the notation, "3-26," on the margin of
844 GAUGH v. SOUTHERN LIFE INS. CO . [179 the receipt, dated , February 17, 1927. It is also corroborated by the clause quoted above with reference to the pay-. ment of the premium: This . clause necessarily. referred to the:payment Of the first . premium. It is true. , that the inSured paid the premium two; days 'before . the same.was due, but he had a right to pay it in -advancei., of this corroboration, of appellant's testimony, it may be said that her evidence aS to, the date of the delivery of the Policy was undisputed, even . ilibuih a iDA:rty to the suit. The rule is that the' undorrobOrated 'testiniony 'a a patty to a suit -cannot "be regarded dr freat'edras Undisputed testimony in the' case.- The law i§ that; 'Where' a policy . contain§ a Clanse- stating- that it shall 'not 'becoine effectiVe until delivered, - no liability atises :thereon-oil; thereunder until a 'deliV6ry thereoL'' Thi§ obi,2 tained such a proviSion, and, 'since the undisputed 'evidence showed that it was not 'delivered Until' March . 28, 1927, the paynient on that date neCessarily paid the pr'e-mium for the* following month H of Aptil. Kirk vi Sovereign Camp of Wobcimen . , 169 Mo. . AND; 449, 155* S. W. 39.' • The . court erred in submitting the issue-Of . 'Whether the insuted had paid the' prenlitina on the policy for- the month of December, 1927: As the undisputed teStiniony showed that the first preniium' paid' by 'him WaS for the month of April and that nine payments 'were made, it neci essarily coveted the month of December. The . insured died on January 16, 1928, during the life of the policY; 'as under its terms the insured had until the 30th day of January, 1928, to pay the JanuarY premium. • The court should have instructed a verdict'for appellant." On account of the failure to do so, the jUdg: ment is reversed, and a judgment is directed to be en: tered. here for appellant. -
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