Fawcett v. Security Ben. Ass'n, 6210

CourtSupreme Court of Utah
Writing for the CourtMcDONOUGH, Justice.
Citation104 P.2d 214,99 Utah 193
PartiesFAWCETT v. SECURITY BEN. ASS'N
Docket Number6210
Decision Date02 July 1940

104 P.2d 214

99 Utah 193

FAWCETT
v.
SECURITY BEN. ASS'N

No. 6210

Supreme Court of Utah

July 2, 1940


Appeal from District Court, Third District, Salt Lake County; P. C. Evans, Judge.

Action by William A. Fawcett against the Security Benefit Association, for death benefits based on a benefit certificate issued to Harriett P. Fawcett by the defendant, a fraternal benefit society. From a judgment for the plaintiff the defendant appeals.

Reversed and remanded with instructions.

A. C. Melville, of Salt Lake City, Harry L. Ladbury, of Topeka, Kan., and A. W. Fulton, of Chicago, Ill., for appellant.

Romney, Romney & Boyer, of Salt Lake City, for respondent.

McDONOUGH, Justice. MOFFAT, C. J., and WOLFE, LARSON, and PRATT, JJ., concur.

OPINION [104 P.2d 215]

[99 Utah 195] McDONOUGH, Justice.

This case involves the construction of a contract of insurance. Respondent William A. Fawcett brought an action in the district court for death benefits based on a benefit certificate issued to Harriett P. Fawcett by appellant, a fraternal benefit society. The case was tried upon an agreed statement of facts. Judgment was entered in favor of respondent, from which judgment this appeal is taken.

The stipulated facts show that on or about February 6, 1922, Harriett P. Fawcett made application for membership in a local council of the Security Benefit Association, hereinafter called appellant, and for a benefit certificate for $ 1,000 on a "Twenty-Pay Plan." The application was approved and a certificate duly issued; bearing date of February 14, 1922, and delivered to the applicant on February 18, 1922, at which time the latter paid the first monthly contribution on said certificate, plus local council dues. Thereafter, Harriett P. Fawcett paid the "monthly" assessments to and including September, 1928, the last payment being made on September 30th. On January 6, 1929, pursuant to a provision in the contract of insurance, insured [99 Utah 196] made application to appellant company for extended insurance on the basis of the assessments theretofore paid. On such basis according to the certificate she was entitled to extended insurance for a period of ten years and thirty days. Appellant, pursuant to the application, endorsed on the benefit certificate the following:

"The Security Benefit Association, upon the request of the said Harriett P. Fawcett, hereby waives the periodical contributions stipulated in this certificate of membership and continues Whole Life Protection for ten years and thirty days from October 1, 1928, this Certificate of membership expiring October 30, 1938." (Italics added.)

Harriett P. Fawcett died November 7, 1938.

The court concluded that the benefit certificate, dated February 14, 1922, was at the time of the death of Harriett P. Fawcett, in full force and effect for death benefits by virtue of the provision for extended insurance. This conclusion accepts the theory urged by respondent in asserting his claim for benefits namely: That the benefit certificate, delivered to the insured on February 18, 1922, and calling for the payment of "monthly" assessments, continued in force from month to month from the date of delivery; that the payments made on the policy, beginning on the date the certificate was delivered, were for the period from the 18th of one month to and including the 17th day of the next month; that therefore the final payment made on September 30, 1928, paid for insurance up to and including October 17, 1928; that the period of extended insurance of ten years and thirty days commenced on the date of the expiration of the other insurance and therefore did not expire until November 17, 1938--ten days after the death of insured.

Appellant's assignments of error assail the conclusion of the lower court that the extended insurance was in effect at the time of the death of Harriett P. Fawcett. The principal question to be resolved on this appeal, as posed by appellant in its brief, is "whether the payment made February 18, 1922, paid for insurance to March 18, 1922, or [99 Utah 197] whether it paid the assessment for the month of February 1922, requiring another payment to pay the assessment for the period commencing March 1, 1922, and whether subsequent payments were for the period commencing on the first day of each subsequent month or for the period commencing on the 18th day of the month."

The determination of the question depends upon the construction of the contract of insurance between appellant and deceased. The benefit certificate, "together with the Constitution and Laws of the Society and all amendments to each thereof, and the application for membership," constituted the agreement between the parties. Hence, all of the provisions therein must be read together to determine the meaning of the contract. Lawson v. Brotherhood of American Yeomen, 138 Kan. 248, 25 P.2d 344; Jovich v. National Croatian Soc., 53 Wyo. 504, 86 P.2d 729; Kimball v. New York Life Ins. Co., 96 Vt. 19, 116 A. 119; Dunn v. Detroit Federation of Musicians, [104 P.2d 216] 268 Mich. 698, 256 N.W. 581; Steen v. Modern Woodmen of America, 296 Ill. 104, 129 N.E. 546, 17 A.L.R. 406. See also Wertheimer v. Travelers' Protective Ass'n, 10 Cir., 64. F.2d 435.

The benefit certificate provides that in "consideration of the first monthly contribution of $ 2.35 paid before or at the time of the delivery of this Certificate, and thereafter $ 2.35 to be paid within each month to the Financier of the Local Council, for a completed period of twenty years from the date of the first payment thereon," the applicant will receive the protection therein set out.

In addition, the Constitution and Laws contain several provisions with respect to payment of dues and assessments. Section 96, reads, in part:

"Upon receipt of the Beneficiary Certificate, the Financier shall notify the candidate that he may be initiated by the Subordinate Council at any regular or special meeting occurring within 60 days after the date of issuance of such Certificate. At any time after election [99 Utah 198] to beneficiary membership and before the receipt of the Beneficiary Certificate the applicant may, if he so desires, be initiated as a social member and if thereafter a Beneficiary Certificate shall be issued pursuant to such application, such Beneficiary Certificate shall not become effective until manually delivered to the applicant while the applicant is in good health and the assessment and dues, for the month in which the Certificate is delivered, have been paid, and said Beneficiary Certificate signed by the applicant while in good health, nor unless delivered within sixty days after the date thereof." (Italics added.)

Other pertinent sections are as follows:

"Sec. 98. When Certificate in Force. The Beneficiary Certificate Shall become effective and be in force from and after the initiation of the member and the payment of one assessment and Subordinate Council dues to the Financier, the Certificate having been signed by the member and delivered to him while in good health."

"Sec. 103. Assessment and Dues to Be Paid Without Notice. Before delivering the Beneficiary Certificate, upon the initiation of a member, the Financier of the Council shall collect one assessment and the local dues from the member, for the month in which the Certificate is delivered, and thereafter, on or before the last day of each succeeding month, the member shall, without notice pay the sum of one assessment and the local dues to the Financier. The assessments and dues for the month in which the member dies shall be paid to the Financier before the amount due on Certificate is paid the beneficiary." (Italics added.)

"Sec. 108. To the assessment specified in the preceding sections shall be added the annual dues of the Subordinate Council, divided into twelve equal parts. The one-twelfth part thereof being due and payable monthly, and at the same time as the assessments."

"Sec. 112. Members Suspended by Their Own Act. The Financier of each Subordinate Council shall keep a book wherein all assessments and dues received from each member holding a valid Certificate shall be credited. Such entries shall be made showing the date when actually received by the Financier. All assessments for every month shall become due and payable on the first day of the month. The Certificate of each member who has not paid such assessment or assessments and dues on or before the last day of the month shall, by the fact of such non-payment, stand suspended without notice, * * *. Notice of all special or extra or additional or increased assessments shall be given by publication of the notice of levy, and date when due, in the official [99 Utah 199] paper of the Association, and any member failing to pay such special, extra, or increased or additional assessment or assessments in compliance with such notice on or before the last day of the month for which levied shall, by reason of such failure, stand suspended in the same manner as for failure to pay the regular monthly assessments and dues * * *." (Italics added.)

"Sec. 159. Financier to Make Monthly Reports. On or before the 5th day of each month the Financier shall make a full and complete report of all assessments paid for or by each member of the Subordinate Council for the preceding month * * * and shall forward, with remittance covering same to the National Secretary * * * in time to reach his office by due course of mail, not later than the 15th day of the month."

Respondent urges that the provisions of the Constitution and Laws, set out above, are inconsistent with...

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2 practice notes
  • Lentin v. Continental Assur. Co., No. 32047
    • United States
    • Supreme Court of Illinois
    • March 20, 1952
    ...of New York, 228 Iowa 119, 289 N.W. 901; Pace v. New York Life Ins. Co., 219 N.C. 451, 14 S.E.2d 411; Fawcett v. Security Benefit Ass'n, 99 Utah 193, 104 P.2d The other view adopted has been that where the contract expressly provides that it shall take effect only on the condition of paymen......
  • Wise v. American General Life Ins. Co., No. 05-2715.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 2006
    ...receipt and acceptance and plaintiff died before receipt, even though date of issuance predated his death); Fawcett v. Sec. Benefit Ass'n, 99 Utah 193, 104 P.2d 214, 219 (1940) (upholding backdated insurance contract even though insured obtained less than full month's insurance for first mo......
2 cases
  • Lentin v. Continental Assur. Co., No. 32047
    • United States
    • Supreme Court of Illinois
    • March 20, 1952
    ...of New York, 228 Iowa 119, 289 N.W. 901; Pace v. New York Life Ins. Co., 219 N.C. 451, 14 S.E.2d 411; Fawcett v. Security Benefit Ass'n, 99 Utah 193, 104 P.2d The other view adopted has been that where the contract expressly provides that it shall take effect only on the condition of paymen......
  • Wise v. American General Life Ins. Co., No. 05-2715.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 2006
    ...receipt and acceptance and plaintiff died before receipt, even though date of issuance predated his death); Fawcett v. Sec. Benefit Ass'n, 99 Utah 193, 104 P.2d 214, 219 (1940) (upholding backdated insurance contract even though insured obtained less than full month's insurance for first mo......

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