Wayland v. Western Life Indemnity Company
| Citation | 148 S.W. 626,166 Mo.App. 221 |
| Parties | W. L. WAYLAND, Respondent, v. WESTERN LIFE INDEMNITY COMPANY, Appellant |
| Decision Date | 17 June 1912 |
| Court | Court of Appeals of Kansas |
Appeal from Chariton Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
CERTIFIED TO THE SUPREME COURT.
Judgment affirmed.
Thomas J. Graydon, W. M. Williams and E. F. Ware for appellant.
Good faith to his fellow members, who must be assessed to pay his policy if such payment is required, demanded that if he intended to retain his membership and to assert the invalidity or irregularity of the forfeiture of his membership, that he bring it, within a reasonable time, to the attention of the company. He could not sit idly by apparently acquiescing in the forfeiture of his membership while others were paying dues and large assessments, and, at the end of three years, have his beneficiaries placed in a better position than those of the members who had borne all of the burdens of the company. Glardon v. Supreme Lodge, 50 Mo.App. 58; Miller v. Grand Lodge, 72 Mo.App. 505; Purdy v. Life Assn., 101 Mo.App. 107; Lavin v. Grand Lodge, 112 Mo.App. 1; Bange v Supreme Lodge, 128 Mo.App. 475; McGeehan v. Insurance Co., 131 Mo.App. 420; Stewart v. Supreme Council, 36 Mo.App. 333; Lone v. Ins. Co., 74 P. 689; State ex rel. v. Grand Lodge, 78 Mo.App. 556.
It is no answer to the defense of abandonment to say that an abortive effort had been made to forfeit his rights before he determined to quit the company. Glardon v. Supreme Lodge, 50 Mo.App. 1; Bange v. Supreme Lodge, 128 Mo.App. 475; Lavin v. Grand Lodge, 112 Mo.App. 1. The insured put his refusal to pay the assessments on the ground of the financial condition of the company, as he understood it, and because his policy was issued by the association under its original name which it subsequently changed. He never at any time set up or claimed that the assessments were invalid or brought any such objection to the attention of the defendant, its officers, agents or his fellow members, although he lived for more than three years after the assessments were made. It is too late for the plaintiff to set up a different ground of objection to the assessments and one which the insured did not make for himself. Ins. Co. v. Burnham, 141 F. 842; Roth v. Ins. Co., 162 F. 284; Pfingston v. Grand Lodge, 83 N.E. (Ind.), 254.
Lamb & Lamb and Busby Bros. & Withers for respondent.
The act of making an assessment is a ministerial, and not a judicial one. Therefore no presumption can arise in favor of the regularity or legality of assessments, and it is an affirmative matter, both of pleading and evidence, necessary to establish a forfeiture for non-payment of an assessment; and the assessment should appear to have been made in the manner, mode and in conformity with the authority given, and for a proper purpose. 2 Joyce on Ins., sec. 1310; Stewart v. Grand Lodge, 46 S.W. 579; Murphy v. Fund Ass'n, 114 F. 404; Ins. Co. v. Hyde, 101 Tenn. 405; Benjamin v. Life Ass'n, 79 P. 517; Ins. Co. v. Geise, 49 Mo. 332; Miles v. Life Ass'n, 84 N.W. 159; Society v. Helburn, 85 Ky. 1; Burchard v. Travelers Ass'n, 139 Mo.App. 606. The question here is one of forfeiture and no liberal construction or intendment will be indulged in favor thereof. Bagley v. Grand Lodge, 131 Ill. 498; Sup. Council v. Haas, 116 Ill.App. 587; Hannum v. Waddill, 135 Mo. 160; McFarland v. Accident Ass'n, 124 Mo. 217; Seibert v. Chosen Friends, 23 Mo.App. 268; Grewell v. National Council, 104 S.W. 884; Ins. Co. v. Geise, 49 Mo. 329; Insurance Co. v. Comfort, 50 Miss. 662; Burchard v. Travelers Assn., 139 Mo.App. 606; Roseberry v. Benevolent Assn., 121 S.W. 785; 2 May on Ins. (4 Ed.), sec. 557; 2 Joyce on Ins., sec. 1310. The burden of proof was upon appellant to establish the alleged default by competent proof and to show that the assessment was regularly levied in accordance with its laws providing therefor. 3 Cooley's Ins. Briefs, 2348-2349; Assn. v. Schauss, 148 Ill. 304; Sup. Council v. Haas, 116 Ill.App. 587; Mulroy v. Knights of Honor, 28 Mo.App. 463; Burchard v. Travelers Assn., supra. The assessment was not valid because there were sufficient funds on hand belonging to the death fund to not only pay in full the maximum loss of $ 5000, but to pay in full both losses for which said assessments were levied. Craig v. Indemnity Co., 136 Mo.App. 10; Ins. Co. v. Woolen Factory, 1 Ohio Dec. 577, 10 West L. J. 466. Proof that there was sufficient money belonging to the death fund on hand to avoid the necessity of a levy though concealed by having been wrongfully placed in another fund is such matter in rebuttal. Bagley v. Grand Lodge, 131 Ill. 498; Sup. Council v. Haas, 116 Ill.App. 587; Hannum v. Waddill, 135 Mo. 160; Craig v. Indemnity Co., 136 Mo.App. 5. The assessments not being valid because not "needed" a forfeiture cannot be based upon a failure to pay them. 3 Cooley's Ins. Briefs, 2348-2349; Craig v. Indemnity Co., supra. The defendant having fraudulently dissipated the funds of the insured and forfeited his policy in an oppressive, arbitrary and fraudulent manner, it was not incumbent on the insured to tender further premiums or attempt to be reinstated, when he had every reason to believe such action would be futile. Pilcher v. Insurance Co., 33 La. Ann. 222; Insurance Co. v. Smith, 44 Ohio St 156; Grand Lodge v. Scott, 93 N.W. 190; 2 Joyce, Insurance, 1123; Shaw v. Ins. Co., 69 N.Y. 286; Ins. Co. v. Ben. Soc., 181 Pa. St. 448; Agnew v. A. O. U. W., 17 Mo.App. 254; Insurance Co. v. Gorman, 74 Ga. 57. See, especially, 3 Cooley's Briefs on the Law of Insurance, 2330-2348. There was no evidence of a voluntary abandonment of the policy by the insured in this case. Wanek v. Supreme Lodge, 84 Mo.App. 185; Packwood v. Ins. Co., 9 Mo.App. 469; Ins. Co. v. Wright, 126 F. 82; 3 Cooley's Briefs, 2398; Ins. Co. v. Berwald, 76 S.W. 492. Mere silence on the part of the insured will not establish the fact of abandonment or acquiescence in an unlawful forfeiture. Guetzkow v. Insurance Co., 105 Wis. 448; Purdy v. Life Assn., 101 Mo.App. 109; Smith v. Roach, 59 Mo.App. 117; Spurlock v. Sproule, 72 Mo. 509; Bostwick v. Fire Department, 49 Mich. 513; Lodge v. Hubbell, 2 Strob. L. (S. C.) 457; Thompson on Insurance, 931; 3 Cooley on Ins., 2398.
This is an action on a policy of life insurance issued by an insurance company organized under the laws of Illinois and authorized to do business in this state as an assessment company. The policy was issued to John H. Wayland of Salisbury, Missouri, June 24, 1889, who paid all dues and assessments until October 12, 1905, when he failed to pay two assessments (numbered 303 and 304) levied to pay two death losses of five thousand dollars each and thereupon defendant declared his policy forfeited. He made no effort to be reinstated, paid no further dues and assessments and on October 28, 1908, died at his home in Salisbury, leaving a widow and three children who were the beneficiaries named in the policy. Plaintiff is one of the beneficiaries and, on the refusal of defendant to acknowledge any liability under the policy, brought this suit, claiming the entire cause of action was vested in him by virtue of assignments to him by the other beneficiaries of their interests. When the policy was issued defendant was known as Knights Templers and Masons Life Indemnity Company but later its name was changed to Western Life Indemnity Company.
The following issues are presented by the pleadings and evidence: 1st. Were assessments 303 and 304 which the assured failed to pay legally levied and did the failure of the assured to pay them afford ground for the forfeiture of his rights under the policy? 2d. Did his failure to pay dues and assessments which accrued or were levied subsequently ipso facto work a forfeiture of the policy? 3d. Did the conduct of the assured disclosed by the evidence constitute an abandonment of the policy?
All of these issues were resolved by the circuit court, where the case was tried without the aid of a jury, in favor of plaintiff, who recovered judgment for $ 5331.65, the face of the policy, with accrued interest and the cause is before us on the appeal of defendant. The two assessments in question were levied October 2, 1905, each was made for the avowed purpose of paying a specified death loss of $ 5000, Mr. Wayland was duly notified of the assessments and, under date of October 4th, he wrote defendant the following letter:
To this letter defendant replied October 9th, as follows:
"Receipt is acknowledged of your favor under date October 4. The Western Life Indemnity Company is identically the same company as the Knights Templars and Masons Life Indemnity Company, merely a change of name having been made, as provided by the statute, and for reasons set forth in the notice calling policy holders together last May for the purpose of considering the change.
Your careful attention is invited to the circular letter sent to our policy holders, which refers to this change and many other features which have been recently published in this company's affairs. I beg to assure you that...
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