84 Iowa 141 | Iowa | 1891
I. The petition was filed April 12, 1889, and alleges that the plaintiff is a member of the defendant association, under a policy sufficiently described; that he paid all dues and assessments on the policy, and has fully complied with the conditions thereof; that the defendant made an assessment on the plaintiff’s policy to pay a death loss, and notified the plaintiff thereof, the last day of payment being March 30, 1889; that on the twenty-third and again on the twenty-ninth day of March, within the time prescribed for paying the assessment, during the business, hours of each day, he went with the money to the defendant’s office to pay the assessment, but was unable to do so, for the reason that he found no one in the office. On the following third day of April he again went to the defendant’s office and offered to pay the assessment, and tendered the amount thereof to the defendant’s secretary, who was authorized to receive it, but it was refused; and thereupon the plaintiff was dropped from the roll of membership, and his policy declared forfeited by the defendant. It is alleged that these acts of the defendant are fraudulently done, in order to defeat the plaintiff in another action against the defendant, and that the defendant has refused to reinstate the plaintiff, though requested so to do.
On the fourth day of October, 1889, the plaintiff filed an amended petition alleging that he was and is in good health, and the defendant did not refuse to accept payment of the assessment for the reason that the plaintiff was in bad health or over age, but for the fraudulent reason before stated. The amendment contains the following further allegation: “That plaintiff is now ready and willing to pay said assess
The policy contains this condition: “A failure to pay said annual dues or said assessments within the time or times above specified shall work a forfeiture of all rights under, and a cancellation of, this certificate, including a forfeiture of all payments made to this association; and the same shall become void in law and equity, unless said holder shall be restored to membership, as provided for in the by-laws of this association, at the date of said forfeiture.”
This provision of the by-laws referred to in this provision is as follows: “Sec. 13. Membership forfeited by nonpayment of dues or assessments, within thirty days after notice, can be renewed within six months by paying arrearages and furnishing physician’s certificate that the person is an insurable party, according to the original application.” The power or authority of the secretary is expressed in the following section of the by-laws: “Sec. 18. The secretary shall keep a record of proceedings of the board of directors. He shall keep the books and accounts and seal of the company; conduct all correspondence; collect all moneys due the association; countersign all certificates,
The defendant’s demurrer to the petition was substantially upon the grounds that there was no tender; that it was not kept good; and that the facts alleged show no cause of action, and do not show that the forfeiture of the policy by reason of the nonpayment of the assessment was waived. The original demurrer was filed before the amendment to the petition.
II. The objection to the tender made by the demurrer, that-it was not kept good, is not well taken.
III. The petition alleges that, under the custom and course of business of the defendant, which had
V. Nor can it be doubted that a general practice and course of business which would lead the plaintiff to rely upon the acceptance of payment for assessments, after failure to pay in the time prescribed by the policy, will operate as a waiver of the forfeiture. Insurance companies cannot lead customers to rely upon their usages, course of business, and the declarations of their officers, which disarm vigilance, overcome watchfulness, and remove stimulus to promptness in payments provided by their policies, and then rigidly enforce the conditions of payment. They must give to the customers the indulgence which they thus promise. Forfeitures on account of omissions to pay sums provided by the policies will be regarded as waived by such usages, course of business and declarations of officers. Mayer v. Mutual Life Insurance Co., 38 Iowa, 304; Unnsell v. Hartford L. & A. Insurance Co. of Chicago, 32 Fed. Rep. 443; Pittsburgh Boat Yard Co. v. Western Assur. Co., 118 Pa. St. 415, 11 Atl. Rep. 801; Tripp v. Vermont Life Insurance Co., 55 Vt. 100; Marston v. Massachusetts Life Insurance Co., 59 N. H. 92; Colton St. Life Insurance Co. v. Lester, 62 Ga. 247; Alabama G. L. Insurance Co. v. Garmany, 74 Ga. 51; Thompson v. St. Louis M. L. Insurance Co., 52 Mo. 469; Western Horse, etc., Insurance Co. v. Scheidle, 18 Neb. 495; 25 N. W. Rep. 620.
VI. It must be remembered, too, that the petition alleges that the forfeiture was declared fraudulently,
VII. The motion to affirm, on the ground that the appeal was not perfected, and the clerk secured his' fee for a transcript, is overruled upon a showing that the facts alleged upon' which the motion is based are not sustained by the record" in the court below.
The decision of the district court is beveesed.