228   RIGHTS AND POWERS OF INSURER

MARTI v. MIDWEST LIFE INS. CO.

Supreme Court of Nebraska, 1922.
108 Nebr. 845, 189 N. W. 388, 29 A. L. R. 1507.

LETTON, J.

Defendant insurance company issued a policy of life insurance

to Albert F. Marti for $1,000 for the benefit of his wife, Eva J. Marti. The premium was paid for one year, beginning February 10, 1916, and the policy was delivered. The insured died on December 25, 1917, without having paid the premium due in January, 1917, so that the policy lapsed on February 10, 1917. It is alleged that the insured became totally disabled and incurably insane on or about March 1, 1916, and remained in that condition until his death. His wife was not aware of the existence of the policy and found it among his papers some time after his death. She then gave notice and proofs of death to the company, which refused to pay, mainly upon two grounds, first, that the policy lapsed on February 10, 1917, and, second, that the right to exercise certain options provided in the policy was a personal right and could only be exercised by the insured, or by some one for him during his lifetime. Other defenses set forth in the answer were, that the disability arose from a disease originating prior to the delivery of the policy, lack of proofs for more than two years after the death, and the falsity of answers made by the insured to questions in the application. The jury found for plaintiff and judgment was rendered accordingly.

The policy contained the usual provisions for forfeiture upon nonpayment of the premium, and also contained the following pro-vision: "Should the insured, no premium being in default, become totally and permanently disabled through bodily injury or disease originating after the delivery of this policy, so that there is no work, occupation or profession, either then or thereafter, that the insured can do or follow to earn or obtain any wages, compensation or profit, and proofs of such condition are furnished to the company at its home office to its entire satisfaction, the insured, after receiving notice from the company that it has approved the evidence submitted of such total and permanent disability, may select one-of the following options: First. Retain this policy as a fully paid-up policy for its face amount, but without the extra indemnity in case of accidental death. (The other options are of no import

hardship will be imposed upon the insurer if impossibility is held to excuse delay in payment. Yet even then the insurer would be deprived of a valuable means of compelling performance of the insured's promise to pay. * * *" Patter-son, E. W., Supervening Impossibility of Performing Conditions in Insurance Con-tracts (1922) 22 Col. L. Rev. 613, 615, 616. [Reprinted by permission.]