56 N.Y.S. 260 | N.Y. App. Div. | 1899
Lead Opinion
On the 22d day of January, 1895, the Metropolitan Life Insurance Company issued to the plaintiff its policy of insurance upon the life of Wilhelm Fischer, for the amount of $1,000, to be paid to the plaintiff upon the death of the insured.
The insured died on the 7th day of February, 1897. The proofs of loss, in the form required by the policy, were duly made out and delivered to the defendant on the 18th day of February, 1897, but the defendant refused to receive them, and thereupon this action was brought to recover the amount to which the plaintiff claimed to be entitled upon the policy. A copy of the policy, with all the conditions, was made a part of the complaint, and set out in full in that paper. The answer admitted that at the time mentioned in the complaint the defendant entered into a contract of insurance in writing with Wilhelm Fischer, of which a true copy was set out in the complaint. It contained a denial of certain other allegations of the comjfiaint, one of which was that Wilhelm Fischer performed all the terms and conditions of the contract of insurance to be done and performed by him. In addition to the denials, the defendant alleged, as a further and separate defense, the issuing of the policy of insurance, which was stated to have been issued and accepted upon the express condition that if any premium or installment of premium upon the policy should not have been paid on or before the date it became due, the policy should thereupon be and become void, and all premiums paid thereon should be forfeited to the company. It was further alleged that on the 22d day of April, 1896, there became due to the defendant as a quarter-annual premium on that policy the sum of six dollars and seventy-one cents, which was not paid. It further alleged that no premiums on that policy had been p.aid since the 22d of January, 1896, “ whereby by the terms and conditions of said policy the same became on the said 22d day of
Upon the trial, after the plaintiff had rested her case, the defendant proved that the last premium paid on the policy was paid on the 22d day of January, 1896. It further proved that on the 26tli of July, 1896, the policy was declared lapsed by the defendant. There was then offered in evidence by the defendant a notice and affidavit claimed to be such as is required by section 92 of the Insurance Law (Chap. 690, Laws of 1892). To this evidence the plaintiff objected upon the ground “ that there is no defense set up in the answer, as to sending any notice, such as the law required. It is incompetent, irrelevant and immaterial, and does not comply with the statute as to an affidavit that is permissible in such a case.” This objection was overruled and the evidence admitted, and the plaintiff thereupon excepted. The question presented arises upon this ruling of the court.
It is claimed by the plaintiff that the forfeiture of the policy constituted an affirmative defense in the nature of a confession and avoidance, and that to enable the defendant to take advantage of that defense all the facts necessary to constitute a forfeiture must be set up in the answer; that one of those facts was the service of a notice required by the statute, because, until that notice was served, the company had no right to declare the policy forfeited, and that as the service of this notice was not alleged in the answer, proof of it should not have been received.
There can be no doubt that the point was sufficiently raised by the objection taken on the part of the plaintiff when the affidavit was offered. As no application for leave to amend was made by the defendant, the plaintiff was entitled to a ruling upon the pleadings' as they stood, and if under those pleadings this evidence was not competent, the exception was well taken, and the plaintiff was entitled to stand upon it and to have her case judged by the sufficiency of the pleadings as they were presented to the court upon the trial.
Besides many other conditions, the policy contains a provision that if any premium or installment of premium shall not be paid on or before the date when it becomes due, the policy shall be and become
“ The notice shall also state that unless such premium, interest, installment or portion thereof, then due, shall be paid to the corporation, or to a duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value' or paid-up policy as in this chapter provided.
“ If the payment demanded by such notice shall be made within its time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment, and no such policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice.” (2 R. S. [9th ed.] 1174.)
As the policy in question was issued after this statute was passed, the conditions of the policy were controlled by the provisions of the statute, and there could be no forfeiture until the company had served the notice required by this statute and the insured had had his thirty days given by the statute to pay the arrears of the premiums. To that extent the express conditions- of the policy were
Before the defendant could raise any question in regard to the non-payment of the premium, it was necessary to show that it had complied with the statute by serving the notice, as this step was essential to put the insured in default or to raise any point based on his omission to pay the premium. It was admitted by the pleadings that the policy was issued as alleged' ip. the complaint. The plaintiff began the trial of the action, therefore, with a conclusive admission that there was at one time a valid contract of insurance between herself and the defendant; and the burden of showing that the contract was invalid was imposed upon the defendant. Under the'Code of Procedure, it has been settled for many years
The forfeiture of this policy was an affirmative defense. It could only be established by proof of the facts which warranted it. Those facts were two in number; one was that the premiums had not been paid; the other was that the notice required by the statute had been served more than thirty days before the policy had been declared forfeited. It was just as necessary to prove one of those facts as the other, because both of them together were required to constitute a forfeiture. No one would claim that it was not necessary to allege in this affirmative defense that there had been a failure to pay the premiums; but a failure to pay the premium is no more necessary to constitute the forfeiture than the service of the notice, and if it was necessary to allege one, it just as clearly was necessary to allege the other.
Under the rule laid down in the case last above cited, the affirmative defense must have been set up before the defendant could have any benefit from it. It was not sufficient to set it up in part, but it should have been fully set out in the answer, so that the plaintiff might know precisely what was claimed to constitute a forfeiture. All that she was notified of by this answer was that her husband had not paid the premium. Looking at the statute, she must have known, of course, that that was entirely insufficient to warrant the forfeiture of the policy, and she was entitled to stand upon that insufficiency in •the absence of any allegation that the notice had been served, which put upon him (lie duty of paying it within thirty days. Indeed, the allegation of notice was the much more important of the two, because that was the transaction which put Wilhelm Fischer in default, and of which, in the nature of things, this plaintiff could have had no knowledge nor any intimation of its existence unless it was set out in the answer. She came into court, therefore, for the
Under the statute as it then existed, therefore, it was not necessary for the plaintiff to prove the payment of the premiums, and proof that they were not paid would not establish the forfeiture of the policy, because, by the express provisions of the statute, the failure to pay the premium does not forfeit the policy. Therefore, if the defendant had disproved the fact of the payment of the premium, it would not yet have been in a situation to forfeit this policy, for the non-payment of the premium worked no such result. The only effect of the non-payment of the premium, under the condition of the law as it existed at the time of this trial, was that it served as a foundation for subsequent acts of the defendant from which a forfeiture might accrue. But proof of the doing of those acts did not in any way disprove or contradict any statement that the plaintiff had complied with the conditions of the policy. Therefore, even had it been necessary to offer to. prove such a compliance, it would not have opened the door for any further proof by the defendant than to contradict the fact of the payment, and that was not sufficient to warrant the forfeiture.
But the plaintiff was not called upon, as the law stood at the time the policy was issued, and at the time of the trial, to prove the fact of the payment of the premium at all. That the policy was issued as an existing contract between the parties was admitted by the pleadings, and the effect of the statute was that that contract which had taken effect between the parties remained a good and efficient contract until a notice had been served requiring the payment of the premiums. (Baxter v. Brooklyn Life Ins. Co., 44 Hun, 184, 186; S. C., 119 N. Y. 450, 455.) Therefore, even had the issuing of the policy been denied, all that the plaintiff would have been required
The fact that the plaintiff alleged a performance of the conditions did not make it necessary to prove any such performance, except so far as such proof might be essential to constitute a cause of action. If any such essential fact was admitted, the plaintiff was not called upon to prove it at all, nor could the defendant disprove it, having admitted it in his answer. A fact alleged in the complaint which was not essential to establish the cause of action, could not be disprdved under the general denial, had one been pleaded, because the only evidence which the defendant has the right to give under a general denial is such as controverts any fact necessary to be established by the plaintiff to authorize a recovery, but not one to. prove a defense founded upon new matter. (Weaver v. Barden, 49 N. Y. 286, 297; MeKyring v. Bull, 16 id. 297.) In no aspect of these pleadings, therefore, was this evidence admissible, and, therefore, the plaintiff’s exception was well taken.
But we think that the affidavit offered in evidence was not competent for another reason. The statute prescribes: “ The affidavit of any officer, clerk or agent of the corporation, or of any one authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given.” (2 R. S. [9th ed.] 1175.)
The only proof in the case that this affidavit was made by one of the persons mentioned in that statute, was contained in the affidavit itself. We think that that was not sufficient to warrant the admission of the affidavit in evidence. Except as otherwise authorized by statute, only common-law evidence can be given upon the trial of an action. It is undoubtedly true that the rules of evidence in that regard are subject to modification and control by the Legislature and that body may declare an affidavit or any other certificate or statement prima faeie evidence of any fact necessary to be proved. (Howard v. Moot, 64 N. Y. 262.) But for the statute the proof of the service of this notice could only be made by the testimony of a
Whenever the existence of a fact is necessary to be shown to make some other fact competent, common-law evidence of the first fact is required. The fact to make this affidavit competent was that the person making it was one authorized to mail the notice. Until that fact was proved the affidavit was not within the statute, and could not stand in the place of common-law evidence. Therefore, when the objection was taken that the affidavit was not sufficient it was well, taken, and the affidavit should have been excluded, and for that reason also the plaintiff’s objection was improperly overruled.
For" this error, the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the result of the action.
Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham, J., dissented.
Dissenting Opinion
(dissenting):
The only question presented on this appeal is as to the admissibility of the affidavit of one O. J. Goulden, under section 92 of chap
The plaintiff put the policy and the written application therefor, ■signed by the insured, in evidence. By the conditions upon which the policy was issued, and to which, by its terms, it was subject, it was provided that “ if any premium, or installment of premium, ■upon this policy shall not be paid on or before the date it becomes ■due; this policy shall thereupon be and become void, and all premiums paid thereon shall be forfeited to the company.” The defendant introduced evidence from which it appeared that the last premium paid on the policy was paid January 22, 1896; that in July, 1896, the policy was declared forfeited by the defendant, and that the insured died in the city of Brooklyn on the 7th day of February, 1897. The defendant then offered in evidence the affidavit ■of one G-oulden, who deposed that he was an employee of the Metropolitan Life Insurance Company (the defendant); that it was his duty to mail to policyholders notices calling their attention to
There is no question presented as to whether the evidence established the defense or justified a verdict for the defendant. If this affidavit was competent evidence for any purpose, then the objection was properly overruled.
As to the first objection taken by the plaintiff to the affidavit, we think it was "properly overruled. The policy upon its face required the payment of the premiums upon the days named, and was issued in consideration of the payment thereof; and the condition upon which the j3olicy was issued, and which was made a part of the policy, was -that the failure to pay any premium on or before the day it became due should render the policy void. . It was seen that to entitle the plaintiff to recover it was necessary to allege and prove that the insured had complied with the conditions of the policy on his part. Assuming this obligation, the plaintiff alleged in her complaint that the assured duly performed all the terms and conditions of said contract of insurance on his part to be done and performed-This was an express allegation of performance. This allegation the defendant denied and set up the provisions of the policy by which it became void upon the failure of the insured to pay any premium required to be paid, and alleged that by reason of the failure of the assured to pay such premium the policy did become void. The
By the terms of the policy the performance of this condition, viz.,, the payment of the premiums was a condition precedent to any liability of the defendant upon the death of the assured ; and the plaintiff having alleged the performance, and such allegations having been denied by the answer, the plaintiff on the trial must establish performance. (Code Civ. Proc. § 533; La Chicotte v. Richmond R. & El. Co., 15 App. Div. 384.)
In the case of Bogardus v. New York Life Ins. Co. (101 N. Y. 334) it was held that in that action upon a life insurance policy, where it was provided that “ ‘ if the premiums as above stipulated ’ shall not be paid, ‘ then and in every such case this company shall not be liable for the payment of the sum aforesaid, or any part-thereof, and this policy shall cease and determine,’ ” the plaintiff was bound to allege and prove the payment of the premium to sustain a cause of action. Ruger, Ch. J., in delivering the opinion of the court, says“ The contract, as pleaded, provides for the regular' payment by the assured of the annual premiums, and such payments are made the condition of any claim thereunder, and the nonpayment of such premiums causes the policy to become null and void and forfeits to the company all payments made thereon. These conditions were lawful; the parties were competent to enter into them, and unless performance or its equivalent is alleged, the plaintiff has failed to state a good cause of action, and must abide by the case as shown by her complaint.” (See, also, Mathews v. The Howard Insurance Co., 11 N. Y. 11.) It does not appeal'' from the record what evidence the plaintiff submitted to prove this-allegation of the complaint, but the plaintiff, being bound to allege- and prove the performance of the conditions upon which any obli
By section 92 of the Insurance Law (Chap. 690, Laws of 1892) the Legislature has provided that “No life insurance corporation doing business in this State shall declare forfeited, or lapsed, any policy hereafter issued or renewed, and not issued upon the payment of monthly or weekly premiums, or unless the same is a term insurance contract for one year or less, nor shall any such policy be forfeited or lapsed by reason of non-payment when due of any premium, interest or installment or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest, installment or portion thereof due on such policy, the place where it should be paid, and the person to whom the same is payable, shall be duly addressed .and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last-known post-office address, postage paid by the ■corporation, or by an officer thereof, or person appointed by it to ■collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable.” The effect of this provision was to postpone the forfeiture of a policy by reason of the non-payment of a premium therein provided to be paid until the notice required by the statute shall have been mailed to the assured, ■or the assignee of a policy, if notice of the assignment has been given to the corporation. The statute itself does not forfeit the policy, nor does the sending of the notice create the forfeiture. It .simply prohibits the corporation from declaring the policy forfeited until such notice shall have been sent. It was a fact to be proved which would be essential to the establishment by the insurance company of the fact that the premium required to be paid upon a day ■fixed in the policy had become payable so as to effect a forfeiture of the policy, and thus to answer the proof furnished by the plaintiff •to establish her allegation in the complaint that she has complied with the terms and conditions of the policy. The sending of the notice of itself was not a defense to an action upon the policy. It
The other objection to this affidavit seems to me to be equally untenable. The evidence is not a part of the record, the plaintiff presenting upon this appeal a bill of exceptions to present the exception to the admission of this affidavit. It does not appear but that there was evidence that the person making this affidavit was an employee, officer, clerk or agent of the defendant, authorized to mail such notice. As there is no case presenting the evidence, we cannot assume, for the purpose of reversing this judgment, that this fact was not proved by competent evidence; and this is emphasized by the objection to the affidavit, as it did not call the attention of the court to this specific point, the objection that the affidavit is not admissible because it is not proved that the affiant was an officer or employee of the company not having been taken. And as it does not appear from the record that there was no evidence of the fact necessary to make such an objection, if taken, of force, we certainly would not be justified in reversing the judgment because this bill of exceptions does not show that there was no evidence of such fact.
The notice complied with the section of the statute before referred to. It stated the amount of the premium due on the policy, the day when due, the person to whom and the place where the premium
As this is the only question presented by the record, it follows that the judgment should be affirmed, with costs.
Judgment and order reversed, new trial granted, costs to appellant to abide event.
Concurrence Opinion
I concur in the conclusion arrived at by Mr. Justice Rumsey, and, in the main, with his reasoning. The case should be treated as though the law were incorporated in the policy and its provisions interwoven with the terms and conditions of the contract. The courts take judicial notice of public statutes. It is not necessary to plead them, for it cannot be necessary to plead what it is not necessary to prove. Consequently, the plaintiff’s position is the same as though the statute thus embodied in the contract were pleaded in her complaint. When she alleged performance of the terms and conditions of the contract, she simply pleaded performance of what was essential to her right of action — that is, to those terms and conditions upon the performance of which the defendant’s liability rested.
As to the premium, the allegation of performance was, in effect, an allegation of payment at the time specified in the policy, upon the reminder to the assured contemplated by the statute. As to that reminder, the plaintiff was not bound to allege that it was not given. She was not required to allege and prove a negative — namely, that the defendant had not mailed the notice as required by the statute. The defendant clearly had the affirmative on this head. The statute declared that there should be no forfeiture until it did a certain thing. It was for the defendant .to plead and prove the doing of that thing. The affidavit should, therefore, have been rejected.
I also agree that there should have been independent common-law proof that Goulden was an officer, clerk or agent of the corporation, or authorized to mail the notice. But the plaintiff did not take this objection. Her objection was that the affidavit was incompetent, irrelevant and immaterial, and that it did not comply with the statute. These objections were untenable. If the plaintiff had pointed out the specific objection that the affidavit, even if competent and material, was not admissible until common-law proof was furnished of Gonlden’s authority, that objection could at once have been met with the requisite proof as to such authority. I place my concurrence in the reversal, therefore, upon the point that the mailing of the notice was not pleaded.
