Miles v. Mut. Reserve Fund Life Ass'n

• Decision Date: 16 November 1900
• Citation: 108 Wis. 421,84 N.W. 159
• Parties: MILES v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: Wisconsin Supreme Court

108 Wis. 421

84 N.W. 159

MILES

v.MUTUAL RESERVE FUND LIFE ASS'N.

Supreme Court of Wisconsin.

Nov. 16, 1900.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by J. J. Miles against the Mutual Reserve Fund Life Association. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action to recover on an insurance certificate issued on the life of Louis Toepel in favor of his wife. The policy provided, among other things, that if any assessment made pursuant to the insurance contract should not be paid within the period stipulated, the policy should be void. The constitution of the association authorized the executive committee to reinstate any delinquent member within one year after his delinquency occurred, for good cause shown and upon satisfactory evidence of good health and payment of subsequent dues and assessments. The insurance contract further provided that, “On the first week day of the months of February, April, June, August, October and December of each year (or at such other dates as the board of directors may, from time to time, determine), an assessment shall be made upon the entire membership in force at the date of the last death of the audited death claims prior thereto, for such sums as the executive committee may deem sufficient to meet the existing claims by death, the same to be apportioned among the members according to the age of each member;” and that any member who should fail to pay any assessment according to the terms of the policy should forfeit his membership and all the rights under his certificate. March 16, 1898, the board of directors and the executive committee of the association resolved as follows: “Inasmuch as on this 16th day of March, 1898, there is not a sufficient amount in the death fund to pay death claim No. 10,517, under policy No. 119,612, amount $2,000, issued to James L. Lang of Rouseville, Pa., and other claims (through deceased members) now standing approved by the executive committee, a mortuary call is hereby ordered to be made upon the entire membership subject by contract to assessment and in force upon the books of the association as its rules provide, on the 9th day of March, 1898, being the date of the death of said James L. Lang, whose proofs of death are approved and are now on file in this office, and the mortuary call shall be for one-sixth of the maximum rates at the age of assessment, to apply to all policies upon the membership above named the executive committee may deem liable thereunder, and upon all other policies the amount or assessment shall be determined by the executive committee, and this shall be known as mortuary call No. 97.” The amount of the assessment apportioned to the certificate in suit was $2.87. Under the terms of the insurance contract, the time limited for the assured to pay his assessment expired on the 1st day of May, 1898. He failed to pay the assessment within such period, whereby such certificate became forfeited if the assessment was legally made, subject, however, to the right of the executive committee to reinstate the assured as a member of the association for good cause shown and on the further conditions above mentioned. May 13, 1898, and after Toepel, by reason of the facts stated, had ceased to be a member of the association, an assessment of $2.87 was made against him and notice thereof duly addressed to him. May 23, 1898, the assured, by a member of his family, applied to the association for reinstatement, sending with such application $2.87 and representing that the assured was in good health, had no idea of abandoning his insurance, and that the failure to pay the assessment within the time limited therefor occurred by reason of his being absent from his place of business and his agent in charge not understanding the notice of such assessment. The next day after the money was sent to the association Toepel died, and on the next day it sent to his address a receipt for $2.87 and a notice of reinstatement of his membership on condition, among other things, that he was then, and had been for the previous twelve months, in good health, and that otherwise the retention of the money and the sending of the receipt should not waive the forfeiture of the certificate. Six days after the mailing of the receipt to the assured, the association received from the attorney for Mrs. Toepel notice of the death of her husband, with a request for blanks to be used in making application for payment of the insurance. The association replied by sending such blanks, expressly reserving its right to insist upon a forfeiture of the policy, and offered to return the $2.87. Payment of the policy was refused because of the facts stated. Mrs. Toepel commenced this action, Mr. J. J. Miles acting as her attorney. Thereafter Miles purchased the cause of action for a small amount of money, taking an assignment thereof and becoming, without objection, substituted as plaintiff in place of Mrs. Toepel.

The facts detailed were disclosed by the evidence, and at the close thereof defendant's counsel moved the court for the direction of a verdict, first, because the assignment of the policy to plaintiff was absolutely void, and second, because the evidence failed to establish a cause of action against defendant. The motion was denied and due exception taken to the ruling. A verdict was then, on motion, directed in plaintiff's favor, and a proper exception was taken thereto. Judgment was entered accordingly.Tomkins & Merrill, for appellant.

J. J. Miles, for respondent.

MARSHALL, J. (after stating the facts).

The record does not disclose upon what ground the trial court decided that plaintiff was entitled to recover. Counsel for appellant have failed to be of any assistance in that regard, though they are here insisting that the judgment appealed from should be reversed on the merits. We find in counsel's brief, under the head of “Argument,” about one-half page of printed matter containing a mere statement that Toepel forfeited his membership by failing to pay call No. 97 for $2.87; that neither the receipt of the money on the false representation that Toepel was in good health, nor the making of the assessment subsequent to the forfeiture of the certificate, waived such forfeiture, with citations of a few authorities on each proposition.

It is not contended here, and we assume was not in the court below, but that Toepel in fact failed to pay call No. 97 within the time limited therefor by the insurance contract, or but that such failure was not waived by the mere giving of the conditional receipt for the money upon the representation made that Toepel was in good health. The insurance contract expressly provided that the membership created by it would terminate upon the failure of the assured to pay any assessment thereon, made according to its terms, within the time limited therefor by such contract. The evidence is undisputed that there was such a failure, assuming that call No. 97 was properly made, that the facts requisite by the terms of the contract to a reinstatement of the membership did not exist, that the money sent to pay the delinquent call was retained by the association on condition among others that the representations made to it as to Toepel's good health were true, that they were untrue, and that, upon the association being so informed, it promptly offered to return the money; leaving no room to claim that the forfeiture was waived from the mere fact of the giving of the conditional receipt. All of such propositions are so obviously correct that we must assume counsel have not suggested in their brief the points which were in the judicial mind in the court below in directing a verdict for plaintiff, and have failed to meet such points in this court. Probably the circuit judge held that call No. 97 was not made as provided in the insurance contract. Counsel for respondent urges that point in support of the judgment, and it seems to be the only one the trial court could have deemed of sufficient importance to require much consideration.

It is well settled, as suggested by respondent's counsel, that when a forfeiture of an insurance policy is claimed as a justification for not paying it at maturity, the existence of the precise condition which by the terms of the contract worked its termination must be clearly shown. If such condition be failure to pay an assessment upon the membership, it must be made to appear that such assessment was made by the persons and under the conditions and for the amount provided in the contract, and that notice thereof was brought home to the assured according to its terms. Bac. Ben. Soc. § 377; Underwood v. Legion of Honor, 66 Iowa, 134, 23 N. W. 300;Bates v. Association, 51 Mich. 587, 17 N. W. 67;Insurance Co. v. Birnbaum, 116 Pa. St. 565, 11 Atl. 378;Association v. Spies, 114 Ill. 463, 2 N. E. 482;Baker v. Insurance Co., 51 Mich. 243, 16 N. W. 391. Hence the burden of proof in this case was upon appellant to show affirmatively, not only that the assured failed to pay an assessment imposed upon his membership, but that it was imposed strictly according to the terms of the insurance contract. It is claimed that appellant failed in that regard, and that the proper foundation was not laid for proving such facts because they were not pleaded in the answer as a defense. Proper exceptions were saved to the ruling of the court allowing appellant to introduce proof to establish such facts. It was stated in the answer that an assessment was duly made and notice thereof was duly given to the assured, and that he failed to pay, etc. It is contended that such allegations were mere conclusions of law, not statements of facts. There is authority for that contention(Society v. Helburn, 85 Ky. 1, 2 S. W. 495), but such a strict rule of pleading is not universal. It does not prevail in this state. Section 2668, Rev. St., provides that in the construction of a...