7 Colo. App. 275 | Colo. Ct. App. | 1896
Lead Opinion
delivered the opinion of the court.
Appellee brought suit against the appellant to recover $1,500, or 75 per cent of the sum of $2,000, on a policy or certificate of insurance executed upon the life of appellee, delivered the 8th day of February, 1881. By the terms of the contract, the amount was to be paid to insured after the expiration of twelve years from date in case the insured was still living, and upon his death, before that time.
The complaint alleges the payment of $15.00 on the day of the' date of the policy, compliance on the part of the
The company (appellant) was a mutual concern, in which, in case of the death of a member, calls or assessments were made upon the individual members to pay the policy of the deceased member.
The defense relied upon in answer was that the plaintiff failed to pay a call made and due June 21, 1892, and another on the 4th of August, 1892, and “ that thereafter, and by reason of the violations aforesaid, the said certificate of membership ceased and determined, and the .plaintiff was no longer treated or regarded as a member of this association, and said certificate of membership, and the insurance or endowment thereunder, from thence hitherto has not been, and is not now, in force, nor the plaintiff entitled to any of the benefits thereof.”
Trial was had to a jury, and, at the close of the evidence, plaintiff asked the court to instruct the jury to find for the plaintiff, which motion was granted, and a judgment for plaintiff for $1,500 entered, from which this appeal was prosecuted.
It appears that for about eleven years and a half the contract of insurance was in force and unquestioned. The insured had paid all demands, six months before it would expire, and the insured be entitled to all its benefits. It is claimed that the insured made such default in payment of assessments as to warrant the company in declaring it forfeited and in refusing to renew on account of the age of appellee. Condition Ho. 8, upon which the supposed forfeiture was based, is as follows : “If the assured shall, at any time, within forty days after receiving due notice, fail to pay, or cause to be paid, the assessments at the office of the association, and in accordance with the rules and regulations of said association, then, and in every such case, the association shall not be liable for the payment of any sum whatsoever,
The only witness sworn was one A. H. Northrop, who testified for the defendant, was employed by it, and had been for six or seven years. He identified the different papers. His knowledge was very limited and evidence very indefinite. He said: “I am testifying from the records of my office. It would be a matter of impossibility to testify from my own memory in a matter of dates and figures such as this, regarding dates, numbers or assessments I could not remember.” As the whole defense or forfeiture depended upon dates, numbers and assessments, it was important that the facts be established from better data than inference from the usual course of business and files in the office. It appears from the dates on files in the office and the testimony of the witness that three assessments of $1.00 each were made and' embraced in a notice dated May 13, 1892, in response to which appellee sent $2.00, leaving $1.00 unpaid. Witness testified that the $2.00 paid was not within the forty days, but he did not show when it was received; but it appears to have been accepted and retained, and that no notice was taken of the default at that time or that appellee’s attention was called to it. Subsequently another notice of assessments for $2.00 was sent to appellee, dated June 25, 1892, which was remitted; also the former dollar until then unpaid. Witness testified it was received one day too late. It should have been at the office August Jfth, but was not received until the 5th. Here is a discrepancy I fail to understand, which shows the want of knowledge on the part of the witness, or the unreliable character of his evidence. The letter containing the remittance from appellee was dated '•'•Durango, 15th Aug." The reply of the company put in evidence, is dated August 17th, in which it is said, “ Which we this day received." That reply contained the
In regard to the second case, witness testified the money came one day too late. Taking the date of the notice, June 25th, and the day of payment, August 5th, excluding one date and including the other, there was no default. The witness testified that the notice bearing date June 25th would be sent out from the 24th to the 26th. Thus the date of sending or mailing, and not the date upon the paper, becomes important. There is also a very marked discrepancy between the testimony of the witness to establish a default, the notiee put in evidence, and condition Ho. 3 of the contract, upon which the forfeiture is supposed to be based. In the notice sent is the following: “ By referring to the conditions of your certificate of membership, you will observe that the assessment made for the following deceased members, must le received within forty days from May 13th, 1892 (the date of the notice), or not later than June 81st,” regardless of the date of sending. This shows great igno
Forfeitures must be clearly established. They are defenses closely scrutinized and not favored by courts. As to the supposed forfeiture by failure to pay the $1.00, the claim seems technical 'and trivial. To have been available, it must have been asserted while the insured was delinquent. Having, during all that time, waived the default, and followed up by a subsequent assessment, it was too late, after-receiving the money,-to go back and declare forfeiture. Authorities in support of these positions are numerous. See Niblack on Mut. Ben. Soc., secs. 339 and 345; Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Mutual Life Ins. Co. v. Amerman, 119 Ill. 329; Viall v. Genesee Mut. Ins. Co., 19 Barb. (N. Y.) 440; Swertser v. Odd Fellows’ Assn., 117 Ind. 97 ; Nat. Mut. Ben. Assn. v. Jones, 84 Ky. 110; Life Ins. Co. v. American, 16 Ill. App. 528; Life Ins. Co. v. Pierce, 75 Ill. 426; Ins. Co. v. Hazlett, 105 Ind. 112.
It is next contended that appellant, being a mutual insurance concern, and having contracted in this language, “ Does assure the life of Martin Colmar in the amount of such sum as will equal 75 per cent of the amount collected of the assessment made for the payment thereto, but not to exceed two thousand dollars,” that in suing for the amount that he was insured, or for $1,500, he had mistaken his remedy; that it should have been a proceeding by mandamus to compel the company to make an assessment to pay the claim. 2d. That if the plaintiff is permitted to sue the association and recover a money judgment, he must allege and show the
Several authorities are cited in support of these positions, some of which, particularly those from the state of Iowa, sustain the contention; but those decisions were by a divided court. In others cited, the contracts were different; the amount to be realized was $1.00 to each member. Here there was no restriction as to the amount that could be assessed against each member shown or claimed. Presumably the amount to be assessed upon each member would be sufficient to make the aggregate amount required. Nor can we agree to the proposition that mandamus was the proper-remedy. The amount assured might possibly, under the peculiar wording of the contract, be reduced and limited by tbe amount of the assessment collected. If not sufficient, it should be matter of defense. Nor could the plaintiff reasonably be required to make proof, where the data was entirely within the control of the defendant, as to the number of members and the amount that could be collected by an assessment.
By the contract of insurance it was the duty of the officers to make an assessment when the payment was due. There is nothing in the contract compelling a party to resort to a proceeding by mandamus to make them perform such duty. The contract for pajunent having matured and the money being due, it was their only duty to provide funds, more or less, and pay the claim. The contract is absolute to pay within ninety days after proof of death or the lapse of the time named. As shown by the evidence, forty days was required to collect the assessment, giving fifty remaining days in which to pay. The power of the corporation to make the assessment could be exercised voluntarily. It did not depend upon a mandamus to set it in motion. The evidence
On a contract identical with the one under consideration and those of the same character, or nearly identical, the authorities are numerous in support of the views announced above. See Niblack on Mut. Ben. Soc., secs. 388, 392, 394 to 401; 2 May on Ins., sec. 563a ; Freeman v. Nat. Ben. Soc., 42 Hun (N. Y.), 252; Oriental Ins. Co. v. Clancey, 70 Md. 101. Bates v. Detroit Mut. Ben. Assn., 47 Mich. 646, where it is held: “ Mandamus does not lie to compel a mutual benefit insurance company to levy an assessment to pay the amount falling due upon the death of a member. The proper course is to bring suit upon the undertaking of the company.” See, also, Elkhart Assn. v. Houghton, 103 Ind. 286 ; Lodge v. Knights, 117 Ind. 489; Loeders v. Hartford Co., 4 McCrary, 149; Kan. Pro. Assn. v. White, 14 Pac. Rep. 275; Kan. Pro. Union v. Gardner, 21 Pac. Rep. 233; O'Brien v. Home Ben. Soc., 117 N. Y. 310.
Several authorities hold that the suit should have been brought for the maximum, $2,000, instead of $1,500, and putting the burden of reducing it and showing the proper amount upon the defendant, but in this oase the failure to sue for the full amount cannot prejudice appellant.
The judgment of the district court will be affirmed.
Affirmed.
Rehearing
ON REHEARING.
In the argument filed in support of the petition for a rehearing, counsel have urged one proposition in which they seem to have great confidence and on which they rety for a reversal of the court’s conclusions. We do not deem the matter of vital consequence, nor consider it available to the appellant on this hearing. The point urged respects the sufficiency of the complaint in its statement of a cause of action. Many cases are now cited as they were in the original brief, which sustain the contention that in an
This statement of the court’s position was probably not essential to the decision, but it was deemed best to express it, because, in our judgment, it is a complete answer to the argument filed on the petition.
For the reasons stated in the original opinion, and on the basis of the authorities therein cited, the judgment will be affirmed and the opinion will be adhered to.
Affirmed.