161 Iowa 61 | Iowa | 1913
Defendant is an association organized under and by virtue of the laws of this state for the purpose of indemnifying its members against loss by accident or sickness. That on or about the 21st day of May, 1909, the plaintiff became a member of the defendant association, and received a certificate of membership, and it is provided in said
The plaintiff, to avoid the effect of this plea, in an amendment to his petition and in reply to the answer, alleges:
That the defendant, through its agents and officers, had repeatedly received assessments and installments of assessments from the plaintiff and others from one to ten days and more after the same had become due under the terms of the certificate, and had never exercised its right to forfeiture, and had never suspended a member for failure to pay the dues on the 1st day of each month, but in each and every^instance the defendant company accepted dues after the 1st day of the month, and by said acts led this plaintiff to believe and assume that they would not forfeit the certificate for failure to make payment promptly on the 1st day of each and every month, and that the plaintiff herein relied upon said acts of the defendant. . . . Plaintiff further says that the agents*63 and officers of the company had told him prior to this accident and prior to the 1st day of May, 1911, that it was not necessary to pay said installments on the 1st of each month, as provided in the certificate, and that the plaintiff relied thereon. _ . That it was the general custom of the defendant to receive installments of assessments after the 1st day of each month; that the defendant had adopted this course of business, and in this particular instance plaintiff’s failure to make the payment promptly at the time fixed in the policy was due to the fact that he relied upon the custom or’ course of business adopted by the defendant in making and receiving installments, and believed that there would be no forfeiture of his policy for failure to pay promptly on the date fixed, but that the. defendant association would accept the same, as it had repeatedly done before, after the date fixed. . . . The plaintiff further says that on the 15th day of May, 1911, the defendant wrote the plaintiff, requesting him to forward the sum of $1 to. cover the installment due May 1, 1911, and that the plaintiff complied with that request, forwarding the amount on or about the 16th day of May, 1911. That the defendant accepted the sum so sent and receipted the plaintiff therefor, and the plaintiff says by reason of the facts aforesaid the defendant has waived the strict provisions of its certificate in relation to prompt payment and is now estopped to claim that the certificate was suspended or forfeited and estopped to claim that they are not liable thereunder in this suit.
Such are the issues under which this case was tried. At the conclusion of plaintiff’s testimony, the court, on motion of the defendant, directed a verdict for the defendant, which was duly returned and judgment entered thereon, and from this action of the court the case comes on appeal.
There is but one question in his case for determination - (1) Did the evidence of the plaintiff sustain his contention that the defendant, by uniform course of conduct touching the receipt of these monthly installments, lead the plaintiff, acting in good faith, to believe that it did not insist upon a strict performance, and thereby waived its right to now insist that a failure to pay the installments strictly on the date stated in the certificate suspended and forfeited all plaintiff’s
That a party may waive any provision of a contract made for his benefit is too long and well established to be now open to controversy. That an insurance association, such as this, can waive a provision of its contract of insurance, providing for a forfeiture or suspension of the policy for failure to make payments strictly at the time and on the terms provided in the policy, has also been held. See Mayer v. Mutual Life, 38 Iowa, 304; Loughridge v. L. & E. Ass’n, 84 Iowa, 141; Bailey v. Mutual Benefit Ass’n, 71 Iowa; 689; Moore v. Order Railway Conductors, 90 Iowa, 730; Davidson v. Tribe of Ben Hur, 135 Iowa, 88; Trotter v. Grand Lodge, 132 Iowa, 513; Insurance Co. v. Unsell, 144 U. S. 439 (12 Sup. Ct. 671, 36 L. Ed. 496); Leland v. Modern Samaritans, 111 Minn. 207 (126 N. W. 728). That this waiver may be shown by the acts and conduct of the officers of the association is well settled by many adjudicated cases. See Richwine v. Aid Ass’n, 76 Minn. 417 (79 N. W. 504) ; M. W. A. v. Colman, 68 Neb. 660 (94 N. W. 814, 96 N. W. 154); Trotter v. Grand Lodge, 132 Iowa, 513; Sweetser v. Mutual Aid Ass’n, 117 Ind. 97 (19 N. E. 722) ; Wallace v. Fraternal Circle, 121 Mich. 263 (80 N. W. 6). Where the acts and conduct of the insurer have been such as to indicate a purpose and intent not to insist upon a strict performance of the terms of the certificate touching the times of payment of installments, and where it appears that, without objection and without com
The provisions in the policy relied upon by the defendant to defeat recovery are as follows:
This insurance shall continue in force only so long as the calls or any installment thereof are paid, on or before noon, central standard time, of the first day of each month in advance, without notice, to this association, at its home office in Des Moines, Iowa, and if the same or any installment thereof be not paid before noon, central standard time, of the day it becomes due, all insurance hereunder will then cease to be in force.
The acceptance of any past due or delinquent call or any installment thereof is optional with the association, and shall not in any case be a waiver of the forfeiture of this policy, but shall be construed and have the same -effect as if a new application, in the same terms as the last preceding one, were then made and a new policy subject to the warranties and agreements of such new application, issued at twelve o’clock noon, central standard time, on the day of such acceptance.
A strict compliance- with these conditions and all conditions and provisions of the articles of incorporation and bylaws of this association, and of this contract, is a condition precedent to the issuance thereof and during the continuance of this contract. No waiver shall be claimed by reason of the acts of any person unless specially authorized in writing over the signature of the president or secretary of this association.
Conceding that by the terms of the contract of insurance
The question here is whether a prudent man had a right to believe that, so far as the company was concerned, it was immaterial to it whether he paid on the day upon which the installments became due, or later, providing he paid it within a reasonable time. The question is, Was there such a course of conduct in the business dealings between the plaintiff and the defendant, in respect to this certificate, and the time of payment, as justified the plaintiff in the belief that the company was willing to take the payments at a date later, and would not forfeit the contract for a failure to pay on the date fixed; or, in other words, had the plaintiff a right to believe from the course of conduct between the parties that the plaintiff would not claim a forfeiture of the contract or right under the contract because of a failure to> pay strictly and upon the terms of the contract? There was evidence introduced on the part of the plaintiff tending to show that on several occasions he had been permitted by the company to pay his installments on a date later than that fixed by the contract; that the same was accepted by the company without question or objection. It appears further from the evidence of the plaintiff that this particular assessment, in question, was not paid on the 1st day of May. It appears that
Great Western Accident Association, H. B. Iiawiey, President. Des Moines, Iowa, 5/15/11. Mr. Wm. Bricker, Albia, Iowa — Dear Sir: Upon referring to your record of membership' we find that you have not been given credit for this month’s installment. Not knowing the cause of this delay, we are writing you so that if you have paid your assessment to a collector, we can be informed so that record can be duly made, or if you have allowed your certificate to become lapsed through a misunderstanding of date on which payment was due, or for some other cause, correction can be promptly made. We dislike to lose even one good member by suspension and sincerely trust that you will give this matter your prompt attention by answering the above suppositions. Tours very truly, [Signed] E. L. Bridges, Auditor.
From which it appears that the company itself did not consider that the certificate and the 'plaintiff’s rights under the certificate were then forfeited. In appears that subsequently, and on or about the 16th day of May, the plaintiff remitted to the company, and the company receipted to him for the payment thus due. It is true that the company did not then know of the plaintiff’s claim in this suit, but we do not deem this material in this case; for, if the policy were alive by reason of the fact that the plaintiff had waived the conditions of forfeiture (which it had a right to insist upon), the fact that the plaintiff received an injury, for which the company would be liable in the event he had paid strictly and on the terms of the contract, would not justify a forfeiture of the contract thereafter. That is, if the defendant insisted upon and received after the 1st of May that installment then due, and receipted to-the plaintiff therefor, as it appears in this case it did, this would at least indicate that tp.e company considered the policy in force at the time of the request and payment.
In the case of Hartford Life Insurance Company v.
The plaintiff claims the company was acting, was conducting itself, in its dealings with the assured so that he, acting as a prudent, reasonable man, had the right to believe, and did believe, that payment on the very day specified would not be insisted upon. Although there be no spoken word, no written word, declaring a waiver, yet it may be that the company, by its conduct, its course of dealing, justly and fairly led the other to believe that it did not care about a strict compliance; that while the contract reads-, ‘Payment must be made’ on specified dates, yet the company did not insist on such payment when her husband was alive, and accepted the dues from him after the time specified and permitted the policy to continue in force. That it did so, until he had a right as a reasonable man to believe, and' did in fact believe, that that was to be the rule. I do not think any-particular number of instances, one or more, can be said as a matter of law to make or not to make a waiver. It is a question for the jury as reasonable men to consider from the evidence what the company intended and what its conduct would lead a reasonable man to believe in reference to it. Now the question comes up in respect to this controversy, Was there such a continuance of business? Was the whole course of business from the commencement to the close such that from this and that, and from all the receipts and all the transactions, he had a right to believe, and did believe, that the question of health even would not be considered, and that it would be willing to take his money either after the date fixed in the policy as well as before ? If so, that makes a waiver. If the company by its conduct led him as a reasonable and prudent man to believe that he could make payment a few days after, as well as before, it cannot turn around now, as a loss has occurred, and say, ‘You did not make the payment in time.’ I cannot say to you as a matter of law that one receipt after the time specified would make a waiver, or that fifty would. It is not in numbers. It is a question for you to determine from all the evidence introduced, the whole course of business, whether a prudent man had a right to believe that it was immaterial whether he paid on the day or a few days after. It must have been such a course of conduct as would lead a reasonably prudent*69 man to believe that the company would not insist upon strict performance.
And Judge Harlan in this opinion says: “Any agreement, declaration, or course of action on the part of the insurance company which leads the party insured to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due confirmation on his part, will and ought to estop the company from insisting upon the forfeiture, although such forfeiture might otherwise be claimed under the express letter of the contract.” And in this case the further language is approved: “Courts do not favor forfeitures, but they cannot avoid enforcing them when the party by whose default they are incurred cannot show some good and stable grounds in the conduct of the other party on which to base a reasonable excuse for his default.” In summing up, Judge Harlan said: 1 ‘ The charge was in entire consonance with the settled doctrines of this court. The only grounds for serious doubt in respect to this case is whether the evidence was sufficient, in any view, to sustain the theory that the defendant had by its course of business with the assured led him to' believe, and that he, in good faith believed, that the company waived, as to him, a strict performance of the conditions as to payment of dues.” It appears that in this Hartford ease the defendant did not ask for peremptory instructions to the jury, but conceded that the same might go to the jury, and asked that instructions be given to the jury on the theory that it was a case for the jury. See, also, the case of Mutual Reserve Fund v. Beatty, 93 Fed. 757 (35 C. C. A. 573).
It is contended, however, by appellee that under the terms of the policy the receipt of payment after the time fixed in the certificate for payment did not waive any of the provisions of the policy, for the policy itself so declared; that the statement on the back of the receipt issued was sufficient to notify the certificate holder that the defendant did not by
All other questions raised in this case we think are fully determined in the cases of Trotter v. Grand Lodge, 132 Iowa, 513, and Davidson v. Tribe of Ben Hur, 135 Iowa, 88.
We are satisfied from the record in this ease that there is a question for the jury, and that the court erred in sustaining defendant’s motion for a directed verdict and in entering judgment against the plaintiff for costs, and the case is therefor Beversed.