Sovereign Camp, W. O. W. v. Rhyne

• Decision Date: 14 January 1935
• Docket Number: 31523
• Citation: 158 So. 472,171 Miss. 687
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. RHYNE et al

158 So. 472

171 Miss. 687

SOVEREIGN CAMP, W. O. W., v. RHYNE et al

No. 31523

Supreme Court of Mississippi

January 14, 1935

Division B

1 INSURANCE.

Where notice sent insured with policy stated that insured should see that dues were paid on or before first day of each month and secretary of insurer, by deposition in action on policy by beneficiaries, so interpreted notice, premium held payable on or before first day of succeeding months, regardless of stipulation in policy for payment on or before last day of immediate month.

2 INSURANCE.

Where monthly premium on life policy was payable on or before first day of succeeding month, insured, dying about midday of first day of month, held not to have been in default, although premium for preceding month had not been paid, since insured had throughout entire day to pay premium.

3 EVIDENCE.

Insurance societies doing business in state are presumed to have in all things proceeded in good faith.

4. CONTRACTS.

Party relying on time provision in contract as being of essence of contract must show that he has been definite and certain in his contract stipulations in respect to time relied on.

5. INSURANCE.

Insurer having before any loss accrued under policy accepted from agent and retained past-due premium without inquiry waived any forfeiture for late payment of such premium, although agent receiving premium was without power to waive forfeitures.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Holmes county HON. S. F. DAVIS, Judge.

Action by Marie Rhyne and others against the Sovereign Camp, W. O. W. Judgment for plaintiffs, and defendant appeals. Affirmed.

Affirmed.

Johnson & White, of Lexington, for appellant.

The insured, John W. Rhyne, died on the first day of March, 1933. The assessment or dues on his certificate of insurance for the month of February, 1933, had not been paid on or before the last day of the month as provided in the certificate itself, and as provided in section 63 (a) of the constitution and by-laws of the defendant association. Under this section of the constitution and by-laws, the certificate of insurance became void and the contract of insurance was terminated.

Section 5249, Code of 1930.

The proof in this case shows without any conflict that the assessment due for the month of February, 1933, was not paid on or before the last day of the month, and in fact was never paid.

Although the witness Reid, and Marie Rhyne testified that assessments had been collected after the last day of the month in which they were due, yet there is no testimony whatever in the record that the defendant or any general officer thereof ever had any notice or knowledge thereof, or ever acquiesced therein. On this point the proof on behalf of plaintiffs is absolutely silent. Failure to make proof of this was fatal to plaintiffs' case.

Odd Fellows Benefit Assn. v. Smith, 101 Miss. 332, 58 So. 100; Sovereign Camp, W. O. W., v. Hyde, 134 Miss. 705, 99 So. 256.

Should the court hold that a reasonable inference of waiver or estoppel might properly be drawn by the jury from the evidence introduced by plaintiffs, we still contend that the testimony of Yates denies all facts from which any such inference might be drawn, and taking his testimony as true, it was error to grant the plaintiffs a peremptory instruction.

It is the well established rule that everything must be considered as proved which the evidence in the case establishes directly or by reasonable inference against the party who obtains a peremptory instruction.

Keith v. Yazoo & Miss. Valley Railroad Co., 151 So. 916, 168 Miss. 519.

The whole effort on the part of appellees has been to set up waiver or estoppel, as against appellant, by reason of an alleged custom or course of conduct on the part of the local secretary, and the local lodge in violation of the provisions of the laws and constitution of the appellant, the very thing prohibited by section 5249, Code of 1930.

Modern Order of Praetorians v. Griffin, 151 Miss. 312, 118 So. 175.

The premiums due by Rhyne for the month of February were never paid to the appellant, and no general officer thereof ever did or said anything from which a waiver might have been inferred, as was done in the Stonewall case.

A. M. Pepper, of Lexington, for appellees.

This court has at all times protected the rights of policyholders and beneficiaries under circumstances and conditions similar to those shown by the record in this case.

The case of Murphy v. Independent Order of the Sons & Daughters of Jacob of America, 77 Miss. 830, has been one of the leading cases since its rendition, for in that opinion this court not only cited with approval the case of Supreme Lodge Knights of Pythias v. Withers, 177 U.S. 260, but incorporated the opinion of the court in that case as the opinion of this court on the question of forfeiture, assessments, subordinate lodges, agency, and construction of policies and by-laws of fraternal orders.

Morgan v. Independent Order, 90 Miss. 864, 44 So. 791; Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453.

It is true that where the insurer by custom and course of dealing with the insured in receiving, without objection, premiums or assessments past due, has led him to believe that he is entitled to a reasonable time for the payment of premiums or assessments after they mature, the insurer cannot claim a forfeiture for failure to pay premiums or assessments on the day they become due, and this is true whether the tender of past due premium is made before or after the death of the assured.

5 Cooley's Briefs on Insurance (2 Ed.), page 4383.

The ground on which this rule rests is that the insured has been misled by such custom or specific dealings with him, into delaying payment of his premium or assessment to a day later than that fixed therefor.

5 Cooley's Brief on Insurance, page 4389; Odd Fellows v. Smith, 101 Miss. 332, 58, So. 100; Modern Order of Praetorians v. Griffin, 151 Miss. 312, 118 So. 175.

Insurer may waive forfeiture of life insurance policy for nonpayment of premiums; provision therefor being for insurer's benefit.

Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619.

Argued orally by H. H. Johnson, for appellant, and by A. M. Pepper, for appellees.

OPINION

Griffith, J.

More than thirty-five years ago appellee's decedent took a policy or certificate of life insurance in appellant association, and throughout all these years, month by month, he paid all premiums and assessments down to and including the month of January, 1933. The insured died about midday on March 1, 1933. The premium or dues for the month of February, 1933, had not been paid at the time of the death of the insured, and the society denied liability on the policy.

To meet new conditions, especially in respect to changes in beneficiaries, there had been surrenders of existing policies and the issuance of new policies in lieu thereof. The last policy was issued on February 6, 1924. This policy stipulated that the monthly premiums should be paid "on or before the last day of each month," and the constitution and by-laws of the society provide that if an insured fail to make any such payment on or before the last day of the month he shall...