121 F. 945 | 8th Cir. | 1903
Lead Opinion
This action was brought originally by Jacob Lambert against the Mutual Reserve Fund Life Association, a corporation organized under the laws of the state of New York. After the trial of the cause, and the rendition of a judgment therein in favor of the defendant, Jacob Lambert died, whereupon Thomas Eerrenbach, executor of his estate, was substituted as plaintiff in place of the deceased. The action was brought to recover premiums amounting to $2,665.65 which Jacob Lambert paid during his lifetime to the defendant company as assessments or premiums upon a policy of insurance upon his life, which appears to have been issued by the defendant company to the deceased on April 5, 1883. The premiums, as they were assessed and demanded, were regularly paid by the insured from that time forward until May 3, 1899, when an assessment or premium on the policy that was levied by the defendant company March 15, 1899, was tendered to the company’s agent at the city of St. Louis, Mo., where the deceased resided, but was declined by the agent unless the insured submitted to another medical examination before the company’s medical examiner, which examination he declined to undergo, and could not undergo, in fact, because he had become diseased, and was at the time over 70 years old; having taken out the policy in question at the age of 56. The defendant company declined to accept the premium, amounting to $77.50, that was tendered by the deceased on May 3, 1899, because, as the company asserted, it was overdue, and should have been paid not later than May I, 1899. The deceased, on the other hand, insisted that he had the
The case hinges on the question whether the premium that was tendered on May 3, 1899, was tendered in time to avoid a forfeiture, and the undisputed facts upon which the decision of that question depends are these: The policy of insurance which was issued to the insured, in its opening paragraph, contains the following clause:
“All mortuary assessments payable at tbe office of tbe association witbin thirty days from tbe date of each notice.”
The certificate further provides that:
“A notice addressed to a member at bis post-office address as appearing upon the books of tbe association, according to its usual course of business, shall be deemed a sufficient notice, and proof of mailing the same, according to the usual course of business of said association, shall be deemed sufficient proof of compliance herewith on the part of said association.”
A similar provision to the last is found in the constitution and bylaws of the company, which further provide that:
“An affidavit of or proof of addressing and mailing the same according to the usual course of business of said association, shall be taken and deemed as evidence, and shall be, constitute, and be deemed and held to be conclusive proof of due notice to said member and every person accepting or acquiring any interest thereunder.”
The notice of the assessment or premium in controversy, which was levied, as above stated, on March 15, 1899, contained a statement that it was payable “within thirty days from the date of this notice.” A notice of mortuary call No. 103, in the usual form, and containing the statement aforesaid, was by the defendant company deposited in the mail at the city of New York on March 31, 1899, postage prepaid. In due course of mail it reached the city, of St. Louis, Mo., where the deceased resided, on April 2, 1899; but, as that day fell on Sunday, it was not delivered to the deceased in due course of mail until the following Monday morning, April 3, 1899. The deceased handed this notice to an agent of his who had charge of his business affairs, with directions to pay the assessment. This agent on May 1, 1899, went to an office building in the city of St. Louis where the defendant had prior to that time, and up to March 22, 1899, maintained its office, with the money necessary to pay the assessment, but found that the defendant company had changed its location. On May 3d, learning to what place the defendant company had removed its office, he went to that place on May 3d, and tendered the full amount of the assessment, to wit, $77.50; but the company’s agent declined to accept the money, for the reasons stated heretofore, unless he would undergo another medical examination. Thereafter, as the plaintiff declined to undergo, and, on account of his physical condition, could not undergo, another medical examination, the company declared his policy, and all payments thereunder, forfeited.
The question presented is not novel, but has been decided by other courts. As early as the year 1887 it was held by the Court of Appeals for the state of Kentucky in National Mutual Benefit Ass’n v. Miller, 85 Ky. 88, 93, 2 S. W. 900, 901, that, where the charter of a mutual benefit society provided that “any member failing to pay his assessment within thirty days from the date of notice shall forfeit his membership, * * *” the time within which payment is to be made “is not to be computed from the actual date of the notice, or from the day it was mailed to the member, but, when sent by mail, from the time at which the notice would, in the regular course of mail, be received by the member.” In the case of United States Mutual Accident Ass’n of the City of New York v. Mueller, 151 Ill. 254, 37 N. E. 882, 885, the Supreme Court of that state held, in the year 1894, that, although the by-laws of the order contained the provision that “payments are to be made * * * within thirty days from the date of the notice thereof,” that meant from the date of the service of the notice, and not the date of the writing. And since this case was submitted our attention has been called to a very recent decision of the same court in the case of Cronin v. Supreme Council Royal League, 65 N. E. 323, wherein the same doctrine is reiterated, namely, that, where a by-law of a beneficial association provides that payment of assessments shall be made within 30 days of the date of the notice, a member is not in default until 30 days from the time notice is ¡received. This rule of construction was also adopted and approved by
“The ‘date of the notice,’ in cases of this hind, is not the date printed on the notice itself, but, when sent by mail, is the day of the date on which the notice is mailed, or is or should be received by the member in due and regular course of mail.”
That court also held, following the general rule applicable to the construction of insurance policies, that, in placing a construction on such a provision, that construction should be adopted which is most favorable to the insured, and will avoid a forfeiture. Likewise, the Supreme Court of Louisiana, in the year 1871, in the case of Wetmore v. Mutual Aid & Benevolent Life Ass’n, 23 La. Ann. 770, held that where a provision of a policy issued by a benevolent association required members of the association to pay a small assessment within 30 days after the death of a member, being notified thereof by publication in one daily newspaper published in the city of New Orleans in Knglish, German, and one in French, for five consecutive days, the 30-day period did not commence to run until the last day of the five publications. Mr. Bacon, in his work on Benefit Societies & Life Insurance (section 382) also states the doctrine thus:
“Where the laws of the society require that the assessment shall be paid within a certain number of days ‘from the date of the notice’ thereof, the date will be construed to mean the day it is delivered or received, and not the date written in the notice, or the day it is mailed; and, in computing the number of days, the day on which the notice is received will be excluded.”
The adjudications aforesaid are ample to sustain the plaintiff’s contention that the premium, in question was tendered in time to avoid a forfeiture, although not tendered until May 3, 1899; and we feel the more inclined to follow these adjudications, and adopt the construction of the phrase “thirty days from the date of each notice” which has been adopted for several years by so many courts of last resort, since it will obviate a forfeiture, which courts always strive to prevent. It is a well-settled rule that, where doubts arise as to the proper construction of clauses in insurance contracts, that view of them should be adopted which is most favorable to the insured. It is most reasonable that these decisions should be followed in the case in hand, since the insured had paid premiums for many years on the policy in question, and, by reason of his advanced age and bodily infirmities, could not obtain other insurance when the alleged forfeiture occurred. The conduct of the defendant company in attempting to rid itself of the risk in the manner and under the circumstances disclosed by this record cannot be viewed otherwise than with disfavor, and the construction which it seeks to have placed on its policy and its by-laws to accomplish that end is accordingly rejected as contrary to law and opposed to fair business dealings, especially as between an insurer and an insured.
It was not seriously urged on the argument by counsel for the defendant company that if the company wrongfully refused to receive the premium which was tendered to it on May 3, 1899, it was not liable to the plaintiff in some amount on account of such wrong
The judgment of the lower court is accordingly reversed, and the case is remanded to that court for a new trial.
Dissenting Opinion
(dissenting). The sole purpose of the judicial construction of a contract is to ascertain the intention with which the parties made it. These parties agreed that the mortuary assessments were payable “within thirty days from the date of each notice,” and the sole .question in this case is whether they intended, not by this stipulation alone, but by the entire contract, to agree that the assessment of April I, 1899, should be payable within 30 days from the date upon the printed notice of it, which was mailed to the assured under the agreement, or within 30 days from the time when, in the ordinary course of the mail, the assured would have received this printed notice. The court below was of the opinion that the parties to this contract intended to agree that the assessment should be payable within 30 days from the date upon the printed notice, and the following considerations lead me to concur in the view taken by that court:
1. All the stipulations and parts of a contract must be read and considered together, to ascertain the true intention of the parties to it. That intention cannot be perceived by looking at a single stipulation alone. All the terms of the agreement must be taken in their ordinary, plain, and popular sense. Their natural, obvious meaning must be preferred to any curious, hidden sense which nothing but the exigency of a hard case and the ingenuity of shrewd counsel would suggest. Imperial Fire Ins. Co. v. Coos Co., 151 U. S. 452, 463, 14 Sup. Ct. 379, 38 L. Ed. 231; Fred J. Kiesel & Co. v. Sun Ins. Office of London, 88 Fed. 243, 246, 31 C. C. A. 515, 518; McGlother v. Provident Mutual Accident Ass’n, 89 Fed. 685, 687, 32 C. C. A. 318, 322; Delaware Ins. Co. v. Greer (C. C. A.) 120 Fed. 916. The by-laws of the defendant were a part of the contract. They provide that “on the first week day of the months of February, April, June, August, October and December of each year” an assessment shall be made upon all the members of the insurance company, and that “a failure to pay the assessment within 30 days from the first week day of February, April, June, August, October and December shall forfeit his membership in this association with all rights thereunder and the certificate of membership shall be null and void.” The first week day of April, 1899, was April 1st, and under
The by-laws further provide that “a notice addressed to a member at his post-office address as appearing upon the books of the' association shall be deemed a sufficient notice,” and that “an affidavit of or proof of addressing and mailing the same according to the usual course of business of said association, shall be taken and deemed as evidence, and shall be, constitute, and be deemed and held to be conclusive proof of due notice.” The certificate or policy reads that “a notice addressed to a member at his post-office address as appearing upon the books of the association, according to its usual course of business, shall be deemed a sufficient notice,” and that “in consideration of the statements, representations * * * and of all mortuary assessments payable at the office of the association within thirty days from the date of each notice,” the association receives the assured as a member.
It is undeniable that the “notice addressed to the member,” prescribed in the by-laws and in the certificate, is the printed paper on which the information regarding the assessment is inscribed, and not the information which that notice contains. Wby should the word “notice,” in the clause “thirty days from the date of each notice,” have a different signification? The natural inference and presumption is that the parties used this word in the same sense the third time they put it into the contract that they had used it before. Why should the simple and obvious meaning of the term “date of each notice” in the contract be discarded, and the words “the time when in the ordinary course of the mail the member ought to receive the notice mailed to him,” or words of similar import, be substituted for it? The word “date” is a word customarily used to describe the designation of time inscribed upon a written or printed paper. The word “time” is a word customarily used to describe the hour or day of the receipt of information. The date of a letter or of a notice is not the time of its receipt, or of its probable receipt. Nor is the time of a letter, if such an expression could be properly used, or the time of a receipt of a letter or of a notice, the date of the letter or notice. The words “time” and “date” are not interchangeable. The expression “thirty days from the date of each notice” is plain and clear. Its signification is obvious. It does-not even suggest the meaning 30 days from the time when, in the ordinary course of the mail, the member ought to receive the notice, and it seems t-o me that such an ingenious and far-fetched interpretation ought not to be imported into it. It is confidently insisted, without fear of successful contradiction, that the plain, obvious meaning of the clause that the mortuary assessments shall be “payable within thirty days from the date of each noticé,” and the only meaning that Would occur to 99 out of 100 persons-who should either carefully or casually read this entire contract, would be that the assessments were payable within 30 days after the date upon the printed notice that was, by the terms of the by-laws and certificate, to be addressed to the mem-
Now, the real question in this case is, what did the parties to this
2. Where a contract is susceptible of two constructions — one which makes the different parts of it accordant, and another which makes them discordant — the former must be given, because it cannot be assumed that the parties intended to insert inconsistent provisions. Miller v. Hannibal & St. J. R. Co., 90 N. Y. 430, 433, 43 Am. Rep. 179; Barhydt v. Ellis, 45 N. Y. 107, 110; Burdon Sugar Refin. Co. v. Payne, 167 U. S. 127, 142, 17 Sup. Ct. 754, 42 L. Ed. 105. By the terms of the by-law which has been quoted, the assessment of April 1, 1899, was payable on or before 30 days from the first week day of that month, and that time expired on May 1, 1899. The notice of this assessment addressed to the member under the by-laws and the certificate was dated on April 1, 1899. The construction that the clause in the certificate, “thirty days from the date of each notice,” means ■30 days from the date on the printed notice, which was adopted by the court below, makes this clause consistent with the express provisions of the by-laws, because the first week day in April was April xst and the date of the notice was April 1, 1899. On the other hand, the interpretation given to it by the majority of this court brings this clause into unnecessary conflict with the by-laws, and makes the assessment payable at one time by the terms of the by-law, and at another by the terms of this clause of the certificate. Why should the obvious sense of the clause, which makes all the stipulations of the by-laws and certificate harmonious and certain, be discarded for the purpose of importing into the contract a curious and recondite meaning, which makes its stipulations contradictory and its meaning doubtful?
3. The meaning which the parties themselves adopted and understood to be the sense of their agreement is the actual contract of the parties, for this is the signification upon which the minds of the parties meet. In the interpretation of an agreement, a court ought not to depart from the signification which the parties themselves adopted and acted upon before any controversy arose. “If it leaves the parties to be governed by their understanding of their own language, .it, in effect, enforces the contract as actually made. That they should be so permitted to construe their own agreement accords with every principle of reason and justice.” St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121, 128; Housekeeper Pub. Co. v. Swift, 38 C. C. A. 187, 193, 97 Fed. 290, 296; Schofield v. Bank, 38 C. C. A. 179, 182, 97 Fed. 282, 286; Topliff v. Topliff, 122 U. S. 121, 131, 7 Sup. Ct.
The opinion of the majority rests upon the decisions of state courts in National Mutual Benefit Ass’n v. Miller, 85 Ky. 88, 93, 2 S. W. 900; U. S. Mutual Accident Ass’n v. Mueller, 151 Ill. 254, 37 N. E. 882; Cronin v. Supreme Council Royal League (Ill.) 65 N. E. 323; Bridges v. National Union, 73 Minn. 486, 496, 76 N. W. 270, 409, 77 N. W. 411; and Wetmore v. Mutual Aid & Benevolent Ass’n, 23 La. Ann. 770; and a statement based upon these decisions in Bacon on Benefit Societies & Life Insurance, § 382. But even if these authorities were in point in the case in hand, they would be
In view of the obvious meaning of the plain terms of the contract, the express stipulation of the by-law, which is inconsistent with any other construction, and the proved understanding of the parties themselves, there seems to me to be no escape from the conclusion that the court below gave the proper interpretation to this contract when it held that under it the assessment was payable on or before 30 days after the date upon the printed notice which was addressed to the member in accordance with the terftis of the by-laws and the certificate; and for this reason the judgment should, in my opinion, be affirmed.
There is another reason why it ought to be affirmed, even if the construction given to the clause of the contract under consideration by the majority is right. If the word “notice” in that clause means information, and not a paper notice, the assured received that information, according to the terms of his contract, on March 31, 1899. The 30 days thereafter expired on April 30, 1899, so that his tender of payment on May 3, 1899, was too late. The printed notice was mailed to the assured on March 31, 1899. The agreement of the parties was that a notice addressed to the assured at his post-office address should be deemed a sufficient notice, and that proof of addressing and mailing it should be conclusive proof of due notice. Under this agreement, the mailing is due notice or due information, and the notice is complete, or the information is given, when the paper notice is mailed. The parties had the right to agree that the mailing of the paper notice should be due notice or due information, and, as they did so agree, the mailing completed the notice. Ross v. Hawkeye Ins. Co., 83 Iowa, 586, 588, 589, 50 N. W. 47; Epstein v. Mut. Aid, etc., Ass’n, 28 La. Ann. 938; Survick v. Valley Mutual Life Ass’n (Va.) 23 S. E. 223; Reichenbach v. Ellerbe, 115 Mo. 588, 596, 22 S. W. 573; Hannum v. Waddill, 135 Mo. 153, 159, 36 S. W. 616; Forse v. Supreme Lodge Knights of Honor, 41 Mo. App. 106, 116; Borgraefe v. Knights of Honor, 22 Mo. App. 127, 141; Bacon on Benefit Societies and Life Insurance, § 381.