Pitts v. Hartford Life & Annuity Ins. Co.

• Decision Date: 22 June 1895
• Citation: 34 A. 95,66 Conn. 376
• Court: Connecticut Supreme Court
• Parties: PITTS v. HARTFORD LIFE & ANNUITY INS. CO.

34 A. 95

66 Conn. 376

PITTS

v. HARTFORD LIFE & ANNUITY INS. CO.

Supreme Court of Errors of Connecticut.

June 22, 1895.

Case reserved from superior court Hartford county; Hall, Judge.

Action by Fitie L. Pitts against the Hartford Life & Annuity Insurance Company on a certificate of membership issued by defendant to plaintiff's husband, and in which plaintiff is named as beneficiary. Case reserved on facts found for the consideration and advice of the supreme court. Judgment advised for defendant.

William F. Henney and Arthur L. Shipman, for plaintiff.

Theodore M. Maltbie, for defendant.

ANDREWS, C. J. The plaintiff is the beneficiary named in a certificate of membership or policy issued by the defendant in its safety fund department, on the life of Thomas D. Pitts, her husband. Thomas D. Pitts died on the 18th day of May, 1891, and this suit was brought to recover the amount named in the said certificate of membership, which certificate provided: "That, upon the death of the member aforesaid while this certificate is in force, all the conditions hereof having been conformed to by said member, and upon receipt by the president or secretary of said company of satisfactory proofs of such death, an assessment shall be made upon the holders of all certificates in force in said department at the date of such death, according to the table of graduated assessment rates, given hereon, as determined by their respective ages and the number of such certificates in force at the date of such death, and the sum collected thereon (less ten cents per each member, assessed for cost of collection) shall be paid (provided, however, that in no case shall the payment upon this certificate in the event of such death exceed one thousand dollars) * * * to his wife, Fitie L. Pitts, if living, otherwise to his legal representatives, within ninety days after the receipt of such proofs, upon presentation and surrender of this certificate." It was admitted that the defendant issued to said Thomas D. Pitts such a certificate as the plaintiff claimed, and that the said Thomas D. died on the day named, from a cause not therein excepted, and that due proofs of his death had been furnished to the defendant. The defendant claimed that the said certificate had lapsed and become void, by the neglect and refusal of the said Thomas D. to perform the conditions and make the payments therein required to be performed and paid.

It is found by the superior court that the certificate was issued by the defendant, and accepted by the said Thomas D., on the 6th day of April, 1884, upon certain express conditions and agreements, among which are the following, viz.: "The application on the faith of which this certificate is issued is hereby referred to and made a part of this contract. * * * The person to whom this certificate is issued agrees to pay to said company three dollars per annum for expenses, on the first day of the month, after date of issue, and at every anniversary thereafter, so long as this certificate shall remain in force, or by monthly or other pro rata installments of the same in advance for periods of less than a year; and also agrees to pay to said company, upon each certificate that shall become a claim, an assessment in accordance with the table of graduated assessment rates, as printed hereon, within thirty days from day on which notice bears date; and further agrees to pay said company the sum of ten dollars towards said safety fund, within sixty days from the date of this certificate; * * * all such payments to be made direct to said company. * * * The holder of this certificate further agrees and accepts the same upon the express condition that if either the monthly dues, assessments, or the payment of the ten dollars towards the safety fund, as hereinbefore required, are not paid to said company on the day due, then this certificate shall be null and void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid for protection while the certificate was in force, either from said company or the trustees of the safety fund. * * * A printed or written notice, directed to the address of the member, as it appears at the time on the books of the company, and deposited in the post office at Hartford, or delivered by an agent of the company, shall be deemed a legal and sufficient notice for all purposes hereof. A transcript of the books of said company, certified by the secretary, showing such facts, shall be taken and accepted as conclusive evidence of the mailing of such notice, and of the facts aforesaid, as set forth in such transcript." The application contained, among other stipulations, this one: "And, if I or my representatives shall omit or neglect to make any payment as required by the conditions of such certificate, then the certificate to be issued hereon shall be null and void, and all money paid thereon shall be forfeited to said company." It is also found that on the 30th day of January, 1891, the defendant made an assessment in due form, as provided by the said certificate, against the holder of the same, and notice of said assessment in the usual form was mailed in the post office at Hartford, Conn., on that day, postpaid, directed to the proper post-office address of the said Thomas D. Pitts, at Pittsburg, Pa., which notice showed that there was due to the company by him, by virtue of such assessment and quarterly dues in advance, the sum of $6.43, which was due and payable at the office of the defendant, in Hartford, on or before March 5, 1891. Said notice, in due course of mail, would have been delivered to said Pitts on or before February 3, 1891. After his death, it was found among his papers. The assessment and dues named in said notice were never paid. Notices of quarterly assessments in the form above mentioned had been sent to the said Thomas D. Pitts for the seven years he had been a member of the defendant company, containing a statement of the amount assessed as his proportion of the mortality fund, and of monthly payments for expenses for three months in advance, in separate items; and he had during that time paid the amounts so stated in the notice without objection or dissent. Thomas D. Pitts, the certificate holder, was on the 21st day of February, 1891, assaulted and knocked down upon the street, and so severely injured as to become unconscious, and remained so for some time. For some considerable period prior to that day, he had been suffering from a tumor upon the brain, which impaired his mental condition, shown especially by loss of memory of passing events, loss of self-control, and extreme irritability. Upon recovering consciousness from the blow, his mental impairment was noticeably increased, especially the loss of memory, and thereafter he attended to no business, and was unable and unfit to do so.

Upon these facts, two questions are made by the plaintiff: First, whether it can be held that such notice of the amounts due was received by Mr. Pitts as to render the policy void by their nonpayment. In the argument this question is divided into two parts, which are: Was the notice in fact received by Mr. Pitts more than 30 days before his death, and, if so, was its effect avoided...