99 Wis. 307 | Wis. | 1898
This case turns on the meaning of the insurance contract. It must go without question that if the facts were such as to permit the application of the doctrine-of practical construction, or estoppel thereby, the defend
The contract in question, embraced in the certificate, the application therefor, and the by-laws and charter of the company, contains the following plain provisions: (1) An absolute, unconditional promise on the part of the assured to pay all assessments for which he may become liable,
Now, if we look only to the plain language of the provisions of the contract specially referred to, no reasonable controversy can exist but that the parties thereto intended that failure to pay an assessment within sixty days after the date •of notice thereof, given as required, should operate to terminate the membership of the defaulting party, but leave him legally liable, nevertheless, for the assessment, and for all •other assessments as well regularly made and noticed to him prior to such termination. That is all expressed in words too plain to require interpretation or construction.
It must not be overlooked that the assured did not agree to pay assessments from time to time to cover death losses as they occurred, so no reason is perceived -why he should be liable merely because of the occurrence of deaths before the lapse of his membership. - What he agreed to do was to pay assessments made during the existence of his membership, to replenish the policy fund. .The regular making of an assessment for that purpose, and the sending of the notice-thereof, fixed his liability. No other element whatever entered into it.
It appears from the record that a double assessment, so called, was duly made on the defendant on the 1st day of-June, 1896, due notice of which was given to him, dated on that day. He did not pay such assessment within sixty days
Many authorities are cited for our consideration, in support of views contrary to those above expressed, some by the plaintiff to the contention that defendant is liable for assessments made after the termination of his membership, and others by the defendant to the contention that the contract of insurance was unilateral in character, and that the termination of it by failure to pay extinguished all claims of the company to recover assessments. Such of the authorities as touch the question under discussion at all, coincide with the conclusion to which we have .arrived. A brief reference to a few of the most important' cases cited by counsel will clearly demonstrate that.
In Ellerhe v. Barney, 119 Mo. 632, there was a controversy as to whether the contract contained a promise to pay assessments. The majority of the court held to the affirmative on that point. If the decision in that regard was right, the promise was not to pay for the benefit of a policy fund, out of which to pay losses generally, but to pay an assessment of $1.60 on the death of each member, happening during the membership of the assured. The scheme of insurance.
In New Era L. Asso. v. Rossiter, 132 Pa. St. 314, the as-signee of the insurance company brought suit for unpaid assessments. The contract contained a promise to pay assessments for deaths happening during the life of his membership, payment of such assessment to be made within thirty days after mailing the notice thereof, showing a statement of the death for which it was made. The policy lapsed for failure to pay an assessment. The court held that, by unmistakable language in the contract, the assured was liable for all death losses which occurred before his membership terminated.
In McDonald v. Ross-Lewin, 29 Hun, 87, the contrast. contained a promise to pay assessments, according to a schedule of rates, on the death of each member, happening during the membership of the assured, and a provision that such membership should cease upon failure to pay an assessment within the time required by the contract. The court held that the failure to pay, ipso facto, determined the membership, but left the member liable, nevertheless, for death losses which happened before such termination, whether assessments were made before or after that time. The decision went no further than the plain words of the contract, as under it the death of a member fixed the liability to pay an assessment, and there was an absolute promise to pay upon the happening of each such occurrence, while the assured remained in the company.
Further consideration of authorities is deemed to be unnecessary. , We may safely venture to say that no case can be found, certainly none has been brought to our attention, which holds that a member of an insurance company can
By the Court.— The judgment of the county court is affirmed.