Parker v. Knights Templars And Masons Life Indemnity Company of Chicago, Illinois

• Decision Date: 05 November 1903
• Docket Number: 13,114
• Citation: 97 N.W. 281,70 Neb. 268
• Parties: CHARLES M. PARKER, ADMINISTRATOR OF THE ESTATE OF WILLIAM H. H. RADER, DECEASED, INTERVENER, ET AL. v. KNIGHTS TEMPLARS AND MASONS LIFE INDEMNITY COMPANY OF CHICAGO, ILLINOIS
• Court: Nebraska Supreme Court

97 N.W. 281

70 Neb. 268

CHARLES M. PARKER, ADMINISTRATOR OF THE ESTATE OF WILLIAM H. H. RADER, DECEASED, INTERVENER, ET AL. v. KNIGHTS TEMPLARS AND MASONS LIFE INDEMNITY COMPANY OF CHICAGO, ILLINOIS

No. 13,114

Supreme Court of Nebraska

November 5, 1903

ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Willard E. Stewart, Frank M. Tyrrell, George A. Adams and Samuel B Iams, for plaintiff in error.

Walter J. Lamb, Joseph Wurzburg and Thomas Jefferson Graydon contra.

ALBERT, C. GLANVILLE and BARNES, CC., concur.

OPINION

ALBERT, C.

This is an action on a life insurance policy issued by the defendant, a mutual company, on the life of Wm. H. H. Rader, in which the plaintiff, who at the time of its issuance was the wife of the assured, is named as the beneficiary. By a subsequent marriage, she took the name under which she prosecutes this action. The policy was issued in March, 1901, and the assured died June 15 of the same year. A copy of the policy is attached to the petition and the money consideration for its issuance, appearing on the face thereof, is $ 4.12, payable in advance, and a like sum on the first day of each month thereafter during the life of the policy. On the back of the policy, and as a part of the contract of insurance, is the following condition:

"5. If any payment is not received at the Chicago office of the insurer before twelve o'clock noon, central time, the day it is due, the risk, under this contract, shall be suspended from that time and such suspension of the risk shall continue until the receipt of the payment at the Chicago office of the insurer, during the business hours of any day within thirty (30) days after the day the said payment becomes due. If the payment in default is not received at the Chicago office of the insurer, during the business hour of any day within thirty (30) days after the day it becomes due, or if the insured dies at any time during such a suspension of the risk, this contract shall be ipso facto terminated, although the amount of the payment may have been forwarded to the insurer before the insured's death; and if such payment is received at said office after his death, it shall be returned to the person who paid it or the insured's legal representative. After the second payment, the insurer will mail notices of payments becoming due, to the post office address of the insured which has been furnished to the insurer by him. and it is agreed that such notice mailed at Chicago at least fifteen (15) days before the day any payment becomes due, shall be sufficient notice thereof, and the insured then accepts the risk of any miscarriage of the mails. Delivery and acceptance of this policy shall be sufficient notice of the first monthly payment after the delivery of the policy."

Referring to the foregoing condition, the plaintiff in her petition alleges as follows:

"Plaintiff alleges that the defendant, after the execution of said policy and during the lifetime of the insured therein, waived the above provision and the requirement that the money be paid at its office in Chicago by noon of the day it was due, in that it constituted and appointed the First National Bank of the city of Lincoln, Nebraska, its agent to collect the premiums on the several and many policies it issued and had outstanding to citizens of said city of Lincoln and vicinity, and duly authorized and empowered said bank to collect said premiums at times and places other than as provided in the said policies, and to so enable said bank to make said collections, sent notices to the said policyholders, including said Rader, requesting them and each of them to pay their said premiums to said bank, and for said purpose forwarded blank receipts to said bank to be filled out and delivered to said policyholders, including said Rader, as they made payment of said premiums from said policyholders, including said Rader, at times and places different from those mentioned in the said policies, to wit: at its place of business in the city of Lincoln, Nebraska, and at dates later in the month than the first day thereof, and the defendant, with full knowledge that said bank was taking and receiving said premiums from said policyholders, including said Rader, at dates later than the first day of the month, took and received said money as paid out of time, and credited the same to the said policyholders, including said Rader, and the defendant also authorized and empowered one J. E. R. Miller to take and receive said premiums from said policyholders, including said Rader, at times and places other than in said policy mentioned, and said Miller did at different and many times in the city of Lincoln, Nebraska, take, collect and receive from said policyholders, including said Rader, the premiums due from them and each of them to the defendant on said policies, and remit the same to the defendant at Chicago, Illinois, and said defendant knew that said Miller was so collecting, taking and receiving the same from said policyholders, including said Rader, as above stated, and remitting the same to the defendant at Chicago, Illinois, and knowing said facts and taking and receiving said remittances and crediting the same to the several policyholders as their several interests appeared, the defendant fully and completely waived the provisions of said policy requiring payment in advance at its office in Chicago, Illinois, before noon of the day it was due, central time.

"Plaintiff further alleges that said bank and said Miller and each of them was empowered to take and was accustomed to and did take from many of said policyholders, including said Rader, the dues severally due from them, after noon of the day it was due, and long after said time, but within the thirty days for which such policy was claimed to be suspended, and did remit the same to the defendant, and the defendant took and received said money from said bank and Miller and each of them, during said thirty days of suspension, and kept and held the same and made no objection thereto, thereby ratifying and confirming the acts and conduct of the bank and said Miller in so doing, and thereby gave out to said policyholders that such payments were valid and sufficient and acceptable to it; that said Rader paid and caused to be paid to said Miller and tendered and caused to be tendered to said bank, all dues from him on the policy in suit herein, prior to his death, and within said thirty days limit or claimed suspension. The said First National Bank being the place designated by the defendant for said policyholders, including said Rader, to make such payment."

Upon grounds not necessary to mention, the administrator of the assured intervened. The petition of intervention also refers to the condition on the back of the policy, and in respect thereto alleges:

"By one of the conditions of said policy, it was provided that an assessment of $ 4.12 should be paid monthly on the first day of each succeeding month at the home office of the defendant at Chicago, Illinois, but this intervener alleges that said condition of the policy, as to time and place of payment of assessments, was waived by the defendant, and that after the issuance of said policy, the defendant directed said insured to thereafter make payments of such assessments at Lincoln, Nebraska, to the First National Bank of said city and to which bank said insured did habitually make such payments with the knowledge and consent of said defendant and without objection thereto.

"Said defendant further waived said condition of said policy as to time and place of payment of the several maturing assessments therein provided for, by ratifying and adopting the acts of their local agent, J. E. R. Miller, at Lincoln, Nebraska, who, acting on behalf of the defendant, collected the payment which matured on the 1st day of June, 1901, from the insured, and remitted it to the defendant, where same was received and credit duly given the insured therefor, by the defendant, upon its books, and same retained by the defendant and is still so retained."

Neither the petition of the plaintiff nor that of the intervener contains any allegations, other than those hereinbefore set out, in regard to the payment of the monthly premiums required by the terms of the policy or any general allegation of performance of his part of the contract by the assured.

The answers to the plaintiff's petition and to the petition of intervention, so far as concerns the present inquiry, are substantially the same. Both open with a denial of "each and every allegation not herein expressly admitted," and admit the issuance of the policy as alleged in such petition. In respect to the condition on the back of the policy and the payment of the monthly premiums, both answers contain the following allegations:

"This defendant further avers that on, to wit, the 14th day of May A. D. 1901, at the hour of 5:30 P. M., the said defendant mailed in the general post office in the city of Chicago, and state of Illinois, a notice addressed to the said William H. H. Rader at the street and number theretofore furnished to said defendant by the said Rader in the city of Lincoln, and state of Nebraska, and thereby notified the said Rader that a payment of $ 4.12 on the said policy would become due and payable on said first day of June, A. D. 1901.

"The defendant further says that, notwithstanding said notification, said Rader did not on June 1, before 12 o'clock noon, central time, pay to this defendant the said sum of $ 4.12 which the said Rader became and was obliged to pay to the said defendant, as hereinbefore alleged, and thereby the risk under the said policy was suspended from the time last mentioned and so...