44 Colo. 373 | Colo. | 1908
delivered the opinion of the court:
Action by the guardian of the minor children of William H. McDonald, deceased, beneficiaries under a policy of insurance issued upon his life by the Grand Lodge of the Ancient Order of United Workmen. The special affirmative defense of the answer is that an assessment by the company upon the insured for the month of February, 1904, was not paid on or before the last day of that month, which the by-laws of the order required, and by reason of such nonpayment, he became, under its rules and regulations, suspended from the order, and all his rights under the policy were forfeited and lost, and he was never in his lifetime thereafter reinstated, and could not be after his death. There was a judgment for plaintiff, and defendant appeals.
1. It is first urged that the court erroneously overruled defendant’s challenge for cause to the juror Dietz. While answering generally that' he could sit as an impartial juror and decide according to the law and the evidence and was not affected by bias or prejudice,' Dietz’s examination clearly disclosed that he had a bias in favor of the children of the insured, the beneficiaries under this policy, and admitted that he might try to favor them. He was an old friend of McDonald’s, and said there was an impression in his mind that he would not do anything that would hurt McDonald’s children, and while he would not consciously favor them, he might unconsciously do so, and it was probable that he would; and that plaintiff and defendant would not enter upon the trial of the case evenly balanced. We think the court should have excused this juror from the panel, as his examination, taken in its entirety, shows bias for plaintiff, and that, as to him, defendant would
2. Defendant complains that the court wrongfully refused some of the instructions tendered by it and of its own motion gave other instructions which were erroneous. We shall not specifically pass on the errors assigned to these rulings further than to indicate in the discussion of the next assignment our views upon certain questions of law that were raised.
3. The judgment cannot he upheld - under the evidence. Under the rule in this jurisdiction, in an action of this kind, when the insurance policy is delivered and becomes operative, all that is necessary primarily to allege in the complaint is the contract of insurance, the happening of the contingency whereby the insurer became liable to pay by reason of the contract, and the amount of the indemnity to which he is entitled.—National Insurance Company v. Sprague, 40 Colo. 344; Penn Mutual Life Insurance Company v. Ornauer, 39 Colo. 498, 90 Pac. 846.
If the defendant relies on noncompliance by plaintiff with some necessary or essential condition upon which its liability depends, it must specially plead the same, and the burden is on it to prove it. Defendant affirmatively pleaded nonpayment in this casé, and thereby assumed the burden of proof. This burden, we think, was successfully discharged, and the case ought not to have been submitted to the jury. As we do not wish to prejudge the rights of the parties in case of another trial, our observations upon this branch of the case are limited to the record now before us. This contract of insurance provided, among other things, that the insured should comply
The uncontradicted evidence is that McDonald, the insured, died not later than the 13th day of
Mugfur was then the financier of the lodge. Its members, it appears, were mostly working men, and to accommodate them Mugfur permitted payments of monthly assessments to be made to his wife at their home, and authorized her to sign receipts for such payments in his name. The evidence is clear that no one but Mugfur and his wife had any authority to receive payment of assessments. Both of them swore positively that neither McDonald nor anyone for him paid, or offered to pay, McDonald’s February assessment during that month. The day after McDonald’s death, one of his children tendered to Mug-fur the February assessment, but was informed at the time by him that it was too late and that he could not receipt for the same. Being further importuned to accept this money and tender it to the subordinate lodge to see if it would not be accepted by the order, Mugfur took the money from the insured’s daughter and told her that, while he could not receipt for the same or accept it as the financier, he would present the matter to the lodge to see if any relief could be given. Subsequently he presented his request to the lodge and was informed t]jat under the rules and regulations the money could not be accepted, and was ordered to return the money. Mugfur tendered the money back to the insured’s daughter, and she refused to accept it. The only testimony that might be claimed as tending to contradict this testimony was the statement of Mugfur himself on cross-examination that some of the members of the order, but not
We think this evidence shows that McDonald’s assessment for the month of February was not paid during that month, and that payment of the same was not tendered until after his death. This, under the plain and unambiguous language of the rules and regulations of the order, operated as a suspension, and thereby the insured forfeited all right to partici-o pate in the beneficiary fund.
There was other uncontradicted evidence before the court that McDonald’s suspension was formally entered upon the minutes of the lodge, and before his death notice thereof given to him by the financier, with the request that if he had concluded to withdraw, to notify the financier, so that the local lodge would not be obliged to remit to the grand lodge his per capita tax; to which no answer was received. McDonald was not reinstated. The tender of his assessment by his daughter after his death, does not operate to restore him to the privileges of the order.
The authorities seem to be in accord as to the law governing such a.state of facts as this record discloses.
The judgment must be reversed and the cause remanded. Reversed and remanded.
Mr. Justice GaSbert and Mr. Justice Bailey concur.