44 Wis. 376 | Wis. | 1878
In tbe view wbicb we bare taken of tbis case, it is unnecessary to decide whether tbe first and second errors assigned for a reversal of tbe judgment be well taken or not. Those errors relate to tbe exclusion of evidence, given or offered, as to tbe practical construction of tbe charter and constitution by members and officers of tbe defendant corporation, as bearing on tbe question when a member was in good standing so as to be entitled to tbe benefit of tbe insurance money. It is said to be tbe clear intent of tbe charter and constitution, that tbe insurance should be recovered only when a member, at tbe time of bis death, was in good standing, and bad fully paid all assessments; and it is insisted that in no other contingency can an obligation on tbe part of tbe defendant to pay possibly arise. Upon examination of tbe charter, we fail to discover any intent to create a contract liability and fix absolutely tbe conditions and circumstances when it will arise. In other words, we suppose the company is subject to tbe application of those legal principles applicable to other mutual life insurance companies. Doubtless the defendant might waive a forfeiture in a given case. Tbe charter gives tbe corporation power to adopt, for its government and tbe management of its affairs, a constitution and by-laws, and to make such rules and regulations as may be deemed necessary to carry into effect tbe object of tbe association, and then proceeds to declare that only members in good standing of any lodge of tbe order of Herman’s Sons in tbis state shall be members of tbe corporation. Sections 4, 5, cb. 189, P. & L. Laws of 1871. Tbe charter evidently contemplates that only
It is suggested by the learned counsel for the defendant, that an acceptance by the company of part of the premium on the fire insurance policy was held a waiver in the Joliffe case on the peculiar language of the policy, and that the decision does not, therefore, apply to the case before us. It is true, Mr. Justice LyoN alludes, in the opinion, to the peculiar terms of the contract; but the waiver is put distinctly and clearly on the ground that, as the company had accepted the cash premium after the default and notice of loss, this operated as a waiver of the suspension clause in the policy. The same principle is decided by the supreme court of the United States in Knickerbocker Life Ins. Co. v. Norton, supra. That was
We reach this conclusion the more readily in view of the elementary doctrine that forfeitures are not favored in the law, and because several provisions of the constitution and by-laws seem calculated, if not altogether to prevent, certainly to mitigate, a forfeiture resulting from nonpayment of dues. For instance, one section of the constitution declares that every member of the order shall be a member of the insurance company, so long as he shall pay his assessments promptly (sec. 8); another provides that a member suspended for nonpayment of dues may be admitted to his lodge upon paying either all assessments which were made during his suspension, or the initiation fee appertaining to his age (sec. 6); another provides that a brother who is indebted for six months’ dues, and does not pay within fourteen days, on the request of the secretary, shall be forthwith stricken from the list of members (sec. 1, art. 14); while the by-laws contain several provisions prescribing the terms and conditions upon which a member who is in arrears for his dues and fines, may be restored to his rights in the company. Now it would be doing violence to the spirit of these provisions, and the benevolent object of the order, not to lay hold of any act or circumstance which indicated an intention on the part of the defendant to waive the forfeiture.
It is claimed that as Erdmann died while in arrears, payment could not have the effect to revive the contract. But the doctrine of waiver goes upon the ground that the contract
By the Gov/rt. — The judgment of the county court is affirmed.