91 Va. 161 | Va. | 1895
delivered the opinion of the court.
It appears from the record that George W. Easley on the 28th of May, 1885, received a certificate of membership in the Yalley Mutual Life Association of Yirginia, by which that corporation, in consideration of the payment of the sum of §24, at the date of the certificate, and the sum of $15, annually thereafter for three years, and after the expiration of three years the annual payment of $6 per year, together with such assessments as might be made against him on account of death of members from time to time occurring, known as mortality assessments, undertook to pay to Minnie O. Easley, the wife of George W. Easley, at the home office of the association at Staunton, the sum of $3,000, within 90 days after notice and the proofs required of the death of the said George W. Easley. This certificate of membership was issued and accepted upon certain conditions set out in the policy, among others, that “if any dues or mortality assessments on this
By the 7th clause of the policy it is provided “that no person except the president, or secretary of the association, is authorized to make, alter, or discharge the contracts, or to waive forfeitures, ’ ’ and this provision of the policy is in accordance with Article 20 of the by-laws.
Geo. W. Easley died in January, 1890, and his widow, the beneficiary under the policy, demanded of the Yalley Mutual Life Association the amount of insurance upon his life, which was refused; and thereupon suit was instituted in the Circuit Oourt of Augusta county. It appears that at the time of his death there remained unpaid, mortality assessment Mo. 72, for $7.11, which fell due on the 31st day of October, 1889, and notice of which was mailed to the plaintiff’s intestate at Pearisburg, Giles county, Ya., the pqstoffi.ce and usual place of abode of the deceased.
The defendant claims that, by virtue of the provisions in the charter, the by-laws, and the policy, all benefits which would otherwise have vested in the beneficiary were forfeited; while the plaintiff, on her part, claims that the forfeiture was waived by the defendant company, by its general course of dealing with its policy holders, and especially with the plaintiff’s intestate. The acts which are relied upon to prove a waiver, or to create an estoppel, which would debar the defendant from setting up the forfeiture are: that the defendant company at various times extended credit to the plaintiff’s intestate; that it had waived forfeitures which had thereto
The first point presented in this record is as to the ruling of the Circuit Court excluding a question put to Asher Ayers, one of the defendant’s witnesses, by counsel for plaintiff, upon cross-examination.
“Did you, upon the advice of Judge Staples, settle the Pritchard & Kingren cases with me upon which a deduction of $500 was made, and was not $1,250 deducted from Mrs. Warren’s policy on the life of her husband, and did not the company assess for the full amount ? ’ ’ This was properly ruled out. The by-laws of the company expressly provide “that no question shall be raised .as to the right to make, or necessity of, any mortality assessment made under any certificate of membership except in the lifetime of the member, and within 6 months from the time when same was made. ’ ’ See also Crossman v. Massachusetts Ass., 143 Mass. 435. It was also inadmissible because it does not appear when the transaction occurred to which the question alludes, and it might, therefore, have taken place before assessment 72 became due, or it might have had relation to some subsequent assessment. In any view of it, therefore, the question was 1 oo indefinite, vague, and uncertain to be admitted, and was therefore properly excluded.
I will now consider the only evidence which I have been able to discover in the record of the dealings between -the defendant and the plaintiff’s intestate having the remotest bearing upon the propositions sought to be maintained, or the
CiI have received notice of my February assessment on policy Mo. 9830. On looking over my papers I have no receipt for last assessment, nor is the check I drew for same charged to me at bank. Will it be all right to send in check for last assessment and let the other take chances to turn up; or had I better send amount of both assessments, and if the. other check comes to light let that then be returned ? I wish to be on the safe side. ’ ’
Yery truly,
Geo. W. Easley.”
To that letter the company replied, advising him to send check for both assessments, and in accordance therewith on the 27th of February, 1886, he again wrote to the company as follows:
“I enclose check for $9.48 to cover two double assessments. If the other check ever turns up it can go to my credit. It has never been sent to bank.5 ’
It appears, therefore, that on the books of the company Easley was in default for the first of the two assessments mentioned, while in point of fact he had mailed a check for the amount due. This, of course, was an accident or mistake for which he was in no wise responsible, and from the consequences of which the company was bound to hold him exonerated. I do not see that that at all tends to prove the indulgence upon which the plaintiff in this suit relies to overcome the forfeiture, or has any tendency to establish the existence of a credit system between the defendant and the plaintiff’s intestate, in respect to • the payments of assessments due the company.
The next instance of failure to pay promptly occurred with
“Mr. Geo. ~W. Easley,
Pearisburg, Giles.Go., Va.
Dear Sir:
Yon have failed to remit $15, the amount due for annual Ho. 1, on your policy Ho. 9,830. Please remit by return mañ as the payment is past due.
Yours truly,
Chables Geattan.”
To this Judge Easley replied by letter -dated 24th July, 1886, as follows:
“Mr. Charles Grattan, Esq.,
Dear Sir:
I have just returned after an extended trip, and have your postal of the 10 th inst. I had no idea of dropping my policy in the Valley Mutual, and if not too late, wish it reinstated. My health is fust-rate, and has been. I enclose check for $19.74, which will straighten me, I believe. I will try and not be guilty of such a piece of negligence again.” The only other instance of failure to pay assessments when due, occurred in June, 1889. It appears that Mr. Easley had been absent from home, and an annual, amounting to $6, falling due May 28 of that year, was not paid. On June 14, 1889, the secretary of the defendant company addressed to Geo. W. Easley the following notice:
“You have failed to remit $6, the amount due May 28th for annual Ho. ■—, on your policy Ho. 9,830, and by the terms of your policy the same is forfeited. If the amount due is paid by th e 25th inst., your policy will be reinstated. This privilege is not to- be taken as a precedent, or a right, but as a favor to you, on the understanding that your health
W. B. McOHEsnEY,
Sercetary.
I hereby certify that I am in good health and insurable condition. ’ ’
That certificate was signed by Gr. W. Easley, 21th of June, 1889. Accompanying the return of this certificate is a letter from Mr. Easley dated Pearisburg, Ya., 21th June, 1889, to ~W. B. McOhesney, secretary:
“Dear Sir:
I don’t know how I ever slipped up on my annual for 1889. Fortunately my health is excellent, and I hope I have not lost anything. I wish I could have my annual made payable at the same time I have to pay an assessment. Can’t you move it backward cr forward so as to make it hit ? 1 am perfectly willing to change it to 1st May. I enclose health certificate and check $13, to cover also assessment due 1st of July.
Yery truly,
Gr. "W. Easley.”
Mow these letters establish several propositions. They show that he knew the mortality assessments fell due on the first of every alternate month; that he knew his policy stood forfeited for his failure to pay his annual; and he knew that it was necessary for him to sign a health certificate in order to be reinstated. There is here no suggestion of waiver or estoppel, but it appears that he understood fully that his restoration to his relations with the company was a privilege granted as a favor to him, and granted only upon the understanding that his health was still unimpaired. Other assessments appear to have been paid promptly up to the one due
This being all the evidence upon this point, plaintiff asked the court for nine instructions, which I do not think it necessary to consider in detail. They all present the idea that the defendant company could, expressly or by implication, waive a forfeiture occurring by reason of nonpayment of annuals, or assessments, on or before the appointed day, or by its acts be estopped from setting up the forfeiture; that the provision of the charter, of the by-laws, and of the policy, declaring forfeiture of policies for the reasons therein respectively set 1 forth, were intended for the benefit of the company, and could be by its acts or by the acts of its officers effectually waived; and that courts will not allow corporations, any more than individuals, to take advantage of their own wrong by accepting the benefits of a particular line of conduct and then repudiating the obligation'which that conduct entails.
The defendant, on the other hand, asked the court to instruct the jury that, according to the true construction of the 7th clause of the charter, the failure to pay, or to tender pay-' ment, on or before the 31st day of October, 1889, of the assessment then due, caused a forfeiture under the terms of
Conceding, therefore, that it was error to have given the instruction asked for by the defendant, the plaintiff was not prejudiced thereby, and it is not a cause for reversal; the court being of opinion that the verdict of the jury upon the facts was plainly right. The judgment must therefore be affirmed. Moore v. City of Richmond, 85 Va. 558, and cases there cited.
Affibmed.