84 Pa. 43 | Pa. | 1877
delivered the opinion of the court,
The principal question upon the trial of this cause in the court below, as well as upon the argument here, was whether the company had waived a forfeiture under the third clause of the conditions of the policy. All of the assignments of error, from the fourth to the thirteenth, bear upon this question, and may be considered together.
The contention of the plaintiffs in error was that the learned-judge submitted the question of waiver to the jury upon insufficient evidence. His answers to the plaintiff’s fifth, sixth, seventh and eighth points, left the jury at liberty to pass upon the question of
The tenth assignment raises the broad question whether there was sufficient evidence in the case to entitle the jury to find a waiver of the forfeiture on the part of the company. The court below held that there was, and refused the defendants’ fourth point. We have already shown that there was no evidence that the company collected or received, in the sense of payment, the money upon the assessments made against Laury after his default. Were the assessment notices in themselves sufficient evidence of a waiver ? If not, the company were entitled to an affirmance of their fourth point, for there is nothing else in the case. In considering this question regard must be had to the resolution of the company passed in 1872, providing that “the secretary notify all those whose policies have lapsed from non-payment of assessments or dues, that they may be reinstated in the company by producing to the company a certificate of good health from any regularly graduated physician, obtained at their own expense, and the payment of all dues and assessments.” It appears by the testimony that the company acted under this resolution. The secretary says: “I sent the notices to members that they might be reminded of their previous membership and might reinstate themselves, if possible.” This evidence was
Under the view which we take of the case, the refusal, of the court below to permit the withdrawal of the plea of nil debet becomes immaterial. So also as to the evidence referred to in the second and third assignments. It was improperly received, as it did not contradict Mr. Baughman, and was irrelevant. A discussion of these questions would be fruitless.
Judgment reversed, and a venire facias de novo awarded.