Neighbors of Woodcraft v. Hildebrandt

• Decision Date: 10 February 1936
• Docket Number: 13713.
• Citation: 98 Colo. 231,54 P.2d 889
• Parties: NEIGHBORS OF WOODCRAFT v. HILDEBRANDT.
• Court: Colorado Supreme Court

54 P.2d 889

98 Colo. 231

NEIGHBORS OF WOODCRAFT v. HILDEBRANDT.

No. 13713.

Supreme Court of Colorado

February 10, 1936

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Suit by Charles W. Hildebrandt against Neighbors of Woodcraft. Judgment for plaintiff, and defendant brings error.

Reversed.

Clarence L. Bartholic and Frank McDonough, Jr. both of Denver, for plaintiff in error.

Paul L Crocker and Barker & Webster, all of Denver, for defendant in error.

HOLLAND Justice.

Defendant in error was plaintiff in the trial court, where he brought suit to recover upon a fraternal benefit certificate, in which he was named the beneficiary, issued to his wife Katherine Hildebrandt. At the close of all the evidence both parties moved for a directed verdict, whereupon the court discharged the jury and found the issues joined in favor of defendant in error.

It appears from the pleadings and evidence that the certificate of insurance was issued to the insured March 3, 1920, in consideration of monthly payments then and thereafter to be made; that the insured died June 7, 1933. At the time of her death, the premiums for the months of May and June, 1933, were not paid. It is undisputed that for some years prior to insured's death, she had many times paid the monthly premiums or assessments after the due date thereof, and that same were accepted by the insurer without question. Defendant in error now contends that such mode of payment established a custom upon which insured was entitled to rely, and that the insurer is estopped to set up as a defense the nonpayment of the abovementioned assessments due and unpaid at the time of insured's death. The insurer argues that even though such a custom had been established, insured had voluntarily dropped her policy and abandoned all rights thereunder and that she knowingly and intentionally refused to pay the premiums after notice of delinquency, and that she applied for, and took insurance, in lieu thereof, with the Prudential Insurance Company. It further contends that the proof of these facts overcame the presumption of waiver as to time of premium payments, and that therefore the certificate upon which this action was instituted was not in force and effect at the date of death of insured.

Evidence on behalf of insurer, which is uncontradicted, is to the effect that its clerk, to whom insured paid her premiums or dues, frequently called the insured after the due date, urging her to pay the premiums, and she testified that on or about the 3d day of May and again about the 17th of May, she telephoned the insured; that being familiar with insured's voice, she knew to whom she was talking, and insured told her: 'Do not send in for me again. I want to drop the Neighbors of Woodcraft, I am even with you now. I have taken Prudential insurance.' The evidence further discloses that insured did take out other insurance at the time, and that she stated in her application to the Prudential Insurance Company, a copy of which is an exhibit in this case, that she had no insurance in any other company. The evidence further shows that the clerk mailed insured a delinquent notice as required by the constitution and by-laws of the insurer. No testimony was offered to rebut this evidence.

Under the presentation here, the insurer virtually admits that the custom and practice existing between the insured and insurer was sufficient to establish a presumption of waiver by the insurer as to prompt payment, but it contends that this presumption could not be indulged in insured's favor under the circumstances surrounding the payments which were delinquent at the time of her death. It further insists that the presumption which...