Hartford Life Ins. Co. v. Hyde

• Decision Date: 21 October 1898
• Parties: HARTFORD LIFE INS. CO. v. HYDE et al.
• Court: Tennessee Supreme Court

48 S.W. 968

101 Tenn. 396

HARTFORD LIFE INS. CO. v. HYDE et al.

Supreme Court of Tennessee.

October 21, 1898 ^[1]

Appeal from circuit court, Hamilton county; Floyd Estill, Judge.

Action by Charles R. Hyde and another, executors, against the Hartford Life Insurance Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

E Watkins, for appellant.

Brown & Spurlock, for appellees.

McALISTER J.

The object of this suit was to enforce the payment of a policy of insurance issued upon the life of F. S. Hyde. There was a verdict and judgment in favor of the plaintiff for the sum of $5,000, the face of the policy, and $200 interest. The company appealed, and has assigned errors.

On the trial below, the company resisted the payment of the policy upon the ground that the assured had failed to pay quarterly dues which were payable on the 5th of June, 1897, and had also failed to pay what was known as a "mortuary call," due on the same day, and that, in accordance with the express stipulations of the policy, it was thereby forfeited. The plaintiff, on the other hand, insisted that it had been the uniform custom of the company since the issuance of this policy in 1886, to give Hyde and its other policy holders notice, not only of this mortuary call, or assessment, but to include in the notice quarterly dues crediting total amount of the mortality call and quarterly dues with any dividends on account of interest accruing from the safety fund, as provided for in the policy, but that no notice was given the assured of mortality call and dues payable June 5, 1897. It is insisted on behalf of the company that on the 27th of April, 1897, in accordance with its uniform custom, it caused to be mailed to the assured due notice of the mortality call and quarterly dues payable June 5, 1897. It was denied by plaintiff that this notice was received by the assured, or was ever sent by the company. It was shown by the testimony of two brothers of the assured who were with him constantly, that he was expecting such a notice, but did not receive it. This fact was also proved by Scott Raulston, a clerk in the office of the assured. It appears, however, that while assured was sojourning in Colorado for his health a notice sent by the company reached Chattanooga on the 13th of June, which was forwarded to assured at Colorado Springs, and on his return to Chattanooga, about the 28th of June, 1897, a check for $17.25, covering mortality call and dues, was sent to the company. The company refused to accept this check, and returned it, claiming the policy had been forfeited. The assured, F. S. Hyde, died June 30, 1897. It was shown that Stephen Ball, secretary of the company, in a letter to counsel for plaintiff, admitted that the first notice sent to F. S. Hyde was directed to 521 West Fifth street Chattanooga, when in point of fact said Hyde never resided at said address. Ball, in a subsequent letter, explained that he was in error in stating that said original notice was directed to 521 West Fifth street, but that said notice was addressed to F. S. Hyde, Chattanooga, as shown by register and galley slip of the company. These controverted questions of fact were all passed upon by the jury, and by every intendment they must be held to have been resolved in favor of the plaintiff's contentions.

The second assignment of error is that the court erred in instructing the jury that under the terms of the policy, in so far as the mortality call of $13.50 is concerned, before defendant could successfully rely on the failure of assured to pay this sum of money the company must establish by proof that an assessment had been made by the officers or agents of the company in the manner and form authorized by the charter and by-laws of said company and the policy of insurance sued on. It is insisted on behalf of the company that the policy or contract sued on in this case fixes the plan of ascertaining the amount of the call, and neither the officers of the company nor its constitution and by-laws have anything whatever to do with the assessment, and that the proof shows that the call was properly made according to the contract, to become due June 5, 1897. In determining the correctness of this charge, we must look to the terms of the policy. The clause relating to this subject is: "In consideration of the representations, agreements, and warranties made in the application, and of the admission fee paid, and of three dollars per annum on each $1,000 of the maximum indemnity herein provided for, for expense dues, to be paid as hereafter conditioned, and of the further payment of all assessments proportioned to said maximum indemnity levied against the hereinnamed member, to form a mortuary fund for the payment of all indemnity matured by the death of members and to create a safety fund as hereinafter described, which assessments, to be levied upon all members holding similar certificates in force at the date of such deaths, shall be made according to the table of graduated assessment ratios, given hereon, and as further determined by their respective ages, and the aggregate maximum indemnity at the date of such deaths, with due allowance for discontinuance of membership," etc. We think this provision of the policy furnishes a complete refutation of the argument of counsel, and sustains the charge of the court. The mortuary call is not fixed at a determined figure in the policy, but is to be ascertained according to the table of...