Aetna Life Ins. Co. of Hartford v. Wimberly , 102 Tex. 46 ( 1908 )

On the first day of October, 1904, the plaintiff in error issued to Garee A. Wimberly a life insurance policy in the sum of one thousand dollars, payable at his death to his wife, Lillie M. Wimberly. The policy provided that the premiums should be paid annually in advance on the first day of October at or before five o'clock, and the first premium was paid upon the issuance of the policy. The policy contained this provision: "Policies cease in accordance with their terms if the premiums are not paid on or before the day stipulated therein for such payment, except that a grace of thirty days is allowed for the payment of any premium after the first, provided that with the payment of such premium interest is also paid thereon for the days of grace taken." The first day of October, 1905, was Sunday and the premium which fell due on that day was never paid by the deceased, who died on November 1, of that year. The plaintiff in error contends that the thirty days of grace expired with the 31st day of October, while counsel for defendant in error contends that the thirty days of grace began at the expiration of the second day of October and embraced all of the first day of November.

If there had been no provision for days of grace in the policy the assured would have had the right to pay the premium on the second day of October, Monday. This proposition of law is not disputed by the plaintiff in error. It is claimed by counsel for the defendant in error that because the day of payment fell upon Sunday and the assured had the right to pay the premium on Monday, that made Monday the day of maturity just as if it had been named in the policy and that the thirty days of grace ran from that day. If the plaintiff in error's contention is correct it determines this case and it will be unnecessary for us to pursue the investigation of the other questions presented.

The first day of October in the year 1905 being Sunday, if the days of grace had not been allowed by the contract, the assured would have had the right to pay the premium on the following Monday, because the law does not require payment to be made on Sunday. It is contended by the defendant in error, and so held by the Honorable Court of Civil Appeals, that this constituted Monday the day for the payment of the premium, and that the thirty days which the contract allowed for the payment of that premium commenced to run at the close of Monday instead of at the close of Sunday, therefore, the first day of November was within the thirty days limit for the payment of the premium. We are of opinion that the fact that the law granted to the assured the right to pay on Monday did not have the effect to add a day to the thirty days allowed by the contract. The contract prescribes that the premium shall be due on October 1, but the policy would not be forfeited if paid within thirty days thereafter. The construction placed upon the contract by the Court of Civil Appeals would give to the assured thirty-one days from the first day of October instead of thirty as expressed in the contract. Wooley v. Clements, 11 Ala. (N.S.), 220. In the case cited suit was upon a note to which the law gave three days of grace. The note fell due on Sunday and was protested on Wednesday. It was contended as in this case that the days of grace began to run at midnight of Monday, and that the note was not protestable until Thursday, but the court held that the days of grace were not enlarged by the fact that the note matured on Sunday.

The rule for computation of time under a state of facts like those set out in this case is well settled to be that the day on which an act is to be performed is to be excluded in determining the time when some other thing is to be done thereafter and that the last day of the time given for the performance of the latter act is to be included in the computation. Hill v. Kerr, 78 Tex. 217 [78 Tex. 217]; Lubbock v. Cook, 49 Tex. 100.

Applying this rule to the facts of this case the thirty days grace allowed by the policy of insurance began to run at midnight of Sunday, October 1, and terminated at midnight of the 31st day of that month, which gave thirty full days from the day on which the payment was expressed to be made and fulfilled every provision of the contract between the parties. It follows that since Wimberly did not pay the premium at all and died after the expiration of the time allowed within which to make the payment, the policy was forfeited before his death and there was no right of recovery as against the insurance company.

It is unnecessary to discuss the other questions which are raised and it is hereby ordered that the judgments of the Court of Civil Appeals and District Court be reversed and that judgment be here rendered that the defendant in error take nothing by the suit and that the Insurance Company go hence without day and recover of the defendant in error all costs of this proceeding.

Reversed and rendered.