POSTAL BEN. INS. CO.
Appeal from Superior Court, Pima County; Evo De Concini, Judge.
Bilby & Shoenhair, of Tucson, for appellant.
Harry O. Juliani, of Tucson, for appellee.
Stanford, Chief Justice. La Prade and Morgan, JJ., concur.
Stanford, Chief Justice.
[64 Ariz. 26] On September 31, 1931, Harriet Johnson, a colored woman of Tucson, Arizona, had her life insured with the United Mutual Benefit Association, which had been organized under the provisions of Sections 608, 609 and 610 of the Revised Code of Arizona, 1928. The certificate of insurance was for $ 1,000 to be paid to her beneficiary at the time of her death, her beneficiary being her son, the appellee herein. The premium to be paid was $ 3.30 per month.
Harriet Johnson passed away at Tucson on July 29, 1943.
The said sections mentioned of our Code of 1928 were amended by Chapter 36, Laws of 1937, and later repealed and superseded by an act known as "The Benefit Insurance Corporation Law of 1943," as now set forth in Chapter 95, Session Laws 1943.
The complaint alleges that in 1938 the defendant assumed all assets and liabilities of the United Mutual Insurance Company and on September 17, 1938, issued an assumption rider covering the policy of the deceased, containing a certain paragraph reading as follows:
[64 Ariz. 27] "The retention of this Rider or payment by or in behalf of the insured of the October 1, 1938 stipulated premium or any other stipulated premium hereon shall constitute the acceptance hereof by the insured."
The insured, Harriet Johnson, did nothing about the rider but continued to make her monthly payments as above stated, but made the payments to this defendant. Upon the death of insured proof of loss was duly submitted demanding the payment of the $ 1,000 due under the certificate originally issued. The defendant in turn advised the beneficiary that the sum due was only $ 165.00. Suit to collect the full amount was commenced on November 18, 1943. Service was made by the sheriff of Maricopa County, the county in which the capitol of our state is located, on the Arizona Corporation Commission, on November 24, 1943. On December 3, 1943, the sheriff made his return of service as follows
"I hereby certify that I received the within Summons Nov. 24, 1943, and personally served the same on the within named Postal Benefit Insurance Company, a corporation, being the defendants named in said summons, by leaving with Amos A. Betts, in person, Chairman of the Arizona Corporation Commission, Phoenix, Arizona, at -- M. Nov. 24, 1943, in the County of Maricopa, two copies of said Summons, to which was attached a true copy of the complaint mentioned in said Summons."
The following two letters were transmitted in regard to this matter:
"Postal Benefit Insurance Company
Incorporated under the laws of Arizona and supervised by the Insurance Department of Arizona.
"Second Floor, First National Bank Bldg., Phoenix, Arizona.
"December 1, 1943
"Mr. Harry O. Juliani
"315 Valley Bank Building
"Re: Harriet Johnson, Deceased
"Your letter to the Company, together with letter from the Valley National Bank returning the check which we tendered in payment of the above Death claim, have come to the writer's attention.
"The position of the Company has been thoroughly explained to you in a letter from Mr. Hughes of the Company under date of Oct. 23. It appears that you apparently have not figured the benefits in accordance with all of the provisions of both the policy and the rider attached.
"The writer expects to be in Tucson within the next two weeks and will be glad to discuss this matter with you.
"Yours very truly,
"Arnold D. Krieger