The Sovereign Camp of Woodmen of World v. Madrigal

• Decision Date: 27 June 1932
• Docket Number: Civil 3191
• Citation: 12 P.2d 615,40 Ariz. 396
• Parties: THE SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, a Corporation, Appellant, v. REFUGINA M. MADRIGAL and JOSEFINA MORANO, by J. NEY MILES, Guardian Ad Litem, Appellees
• Court: Arizona Supreme Court

12 P.2d 615

40 Ariz. 396

THE SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, a Corporation, Appellant, v. REFUGINA M. MADRIGAL and JOSEFINA MORANO, by J. NEY MILES, Guardian Ad Litem, Appellees

Civil No. 3191

Supreme Court of Arizona

June 27, 1932

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment affirmed.

Mr Graham Foster, for Appellant.

Mr John P. Dougherty, for Appellees.

OPINION

LOCKWOOD, J.

Refugina M. Madrigal and Josefina Morano, hereinafter called plaintiffs, brought suit against the Sovereign Camp of the Woodmen of the World, a corporation, herein called defendant, to recover on an insurance certificate issued by defendant on the life of Angel Madrigal, the husband and father of the plaintiffs, respectively. Defendant admitted the issuance of the certificate, but alleged that it had become automatically forfeited for the nonpayment of the premium for the month of May, 1930, and it was upon this issue the case was submitted to the jury. A verdict was returned in favor of plaintiffs, and defendant has brought the case before us for review.

There are three assignments of error, but the sole question raised thereby is whether or not the evidence will sustain a finding on the part of the jury that the premium for the month of May, 1930, was paid during that month. Plaintiffs admit that, if such payment was not made, they cannot recover, and it is not disputed by defendant, at least so far as the issues presented by the pleadings and evidence are concerned, that, if such payment was made, the judgment must be sustained.

It is the general rule of law that, where an insurer pleads and relies upon the nonpayment of a premium or assessment as a ground for forfeiting the policy after it has once been placed in force, the burden of proving such nonpayment is upon it. Sovereign Camp, W.O.W., v. Cox, (Ind App.) 76 N.E. 888; Kidder v. Supreme Commandery U.O.G.C., 192 Mass. 326, 78 N.E. 469; Supreme Council C.K. & L.A. v. O'Neill. 108 Ill.App. 47; Thomas v. Northwester Mutual Life Ins. Co., 142 Cal. 79, 75 P. 665; Olympia Brewing Co. v. Pioneer Mut. Ins. Assn., 53 Wash. 16, 101 P. 371; Van Etten v. Grand Lodge, A.O.U.W., 72 N.J.L. 61, 60 A. 210; Gruwell v. National Council K.L.S., 126 Mo.App. 496, 104 S.W. 884; Ball v. Northwestern Mutual Acc. Assn., 56 Minn. 414, 57 N.W. 1063; Petherick v. General Assembly, 114 Mich. 420, 72 N.W. 262.

Plaintiff Refugina Madrigal testified that on May 22d she personally paid the insurance premium for the month of May, 1930, that month being the one on which defendant relies for nonpayment of premium. She offered a written receipt in support of her testimony, signed by H. P. Garza, at the time financial secretary of the local camp. This receipt has evidently been altered, both as to its date and as to the monthly installment it represents. If the payment was made by May 22d and was for the...