National Mutual Benefit Ass'n v. Miller, 85 Ky. 88

National Mutual Benefit Ass'n v. Miller

85 Ky. 88 | Ky. Ct. App. | 1887

CHIEF JUSTICE PRYOR

delivered the opinion oe the court.

In August, 1878, Jesse D. Seaton being indebted to Miller, the appellee, in a considerable sum of money, became a member of the National Mutual Benefit Association, and named, as his beneficiary, Miller, to secure In'm in the indebtedness. After he became a member, assessments were- made on the deaths of Boes, McDonough and Richardson, of which the insured Seaton had notice, and no payment having been made, it is insisted that Seaton forfeited his membership, and that appellee had no claim upon the company. On the trial of the casé a special verdict or finding of facts was returned into court by the jury, and a judgment rendered for the beneficiary, Miller.

Before proceeding to consider the questions arising from the record, it is necessary to notice the objections made by counsel for the company as to one of the findings made by the jury upon an issue not raised by any pleading, and that arises alone from the offer *93to file an amended answer that was refused, and was made no part of the proceedings in the court below, by a bill of exceptions or otherwise. The object in offering the amended answer was to raise an issue as to the fraud and misrepresentations of the insured as to the condition of his health when the application to become a member was made. While the verdict of the jury in the special finding would indicate that the question was really considered, still, when counsel for the appellee maintained that no such pleading was filed, and none appearing in the record, we must assume that this defense was not made; or, if so, there was no pleading upon which any verdict, general or special, could have been based as to the alleged fraud and misrepresentation by the insured, and the question alone arises as to the forfeiture of the policy by the non-payment of dues.

By the sixth and seventh sections of the charter of appellant, it is provided “that any member failing to pay his assessment within thirty days from the date of notice shall forfeit his membership,” etc. The notice to the assured of the deaths of the members was dated and mailed on the thirtieth of October, 1882, and the letter received on the thirty-first of October, 1882, and the tender of the amount due by the assesssment was made by the beneficiary, Miller, on the first day of December, 1882. It is manifest that the time within which payment is to be made is not to be computed from the actual date of the notice, or from the day it was mailed to the member, but, when sent by mail, from the time at which the notice would, in the regular course of the mail, be received by the member. *94In this case the notice was actually received on the day after it was mailed, and if payment is to be made within thirty days from the reception of the notice, then, including the day on which the notice was received, which was the thirty-first of October, 1882, the money should have been paid on the thirtieth of November, 1882, when it was not offered to be paid until the first of December, 1882, and then the company declined to receive the money. The excuse made by the appellee for not paying the dues or assessments on the thirtieth of November, 1882, is: 1. That it was Thanksgiving Day. 2. That it was the custom of the company to receive the amounts after the lapse of thirty days, and to waive the forfeiture in such cases.

The statute in regard to holidays “makes all days appointed by the President of the United States, or by the Governor of this Commonwealth, as days of fasting or thanksgiving, holidays, on which all the public offices of this Commonwealth may be closed, and shall be treated and considered as Sunday or the Christian Sabbath, for all purposes regarding the presenting for payment or acceptance, and of protesting for and giving notice of the dishonor of bills of exchange, bank checks and promissory notes, placed by law upon the footing of bills of exchange.” If any of these days named “as holidays shall occur on Sunday, the next day thereafter shall be observed as holiday, but bills of exchange or other paper may be presented for payment or acceptance on the Saturday preceding such holiday, and proceeded on accordingly.”

We find nothing in the statute prohibiting business *95transactions on Thanksgiving Day, or treating that day as the Christian Sabbath, except as to commercial paper, and being a mere privilege extended the citizen that he may or not exercise, as his judgment dictates, he is required to perform his business engagements on that day, if, by the terms of his contract, such is his undertaking. The office of the insurance company was open on that day, and nothing to prevent the appellee from paying the assessments.

The custom of observing Thanksgiving Day is commendable and proper, but, as said by Justice Grier in the case of Richardson v. Goddard, 23 Howard, 43, “it is but a recommendation — it has not the force of law, nor was it so intended.” Although the statute makes it a holiday, all business transactions on that day, not otherwise illegal, are valid and binding on the parties, and except as to commercial paper, all payments of money or delivery of property to be made on a day that is afterwards designated by those in authority as Thanksgiving Day must be complied with, or the contract is violated.

It is urged, however, that it was the custom of the appellant to receive payments after the lapse of thirty days, and that payments had been made by the appellant on the policy in question when a forfeiture had already occurred but for this custom on the part of the company.

The. obstacle in the. way of appellee’s recovery by reason of this alleged custom, that has, to some extent, been established by the proof, is, that when the thirty days had elapsed, and when the money due was tendered by the appellee, the assured was .in bad health, *96and in a condition that would have prevented a renewal of the policy, or the waiver of the forfeiture, unless by the voluntary 'action of the company. When the money was tendered, the beneficiary declined to make a statement as to the condition of Sea-ton’s health, and the jury, by a special finding, has ■said that his health was then bad. Therefore, no claim ■existed on the part of either Miller or Seaton against this company by' reasbn of the custom in regard to receiving assessments. It can not be said that the company, by reason of its leniency to its members, is compelled to accept the money after the forfeiture, regardless of the member’s condition; if so, it would' be in effect deciding that no forfeiture could be made after becoming a member of the association. The company may waive the forfeiture — may waive the right to a medical certificate as to health — but when 'the member is in default there is nothing in such a custom as will prohibit an inquiry' by the company as to the health of the member who desires to take advantage of this custom, and to refuse the money when tendered, if the health of the applicant is so much impaired as to increase the risk. That it was greatly impaired is established by the verdict in this case, and, therefore, the company was under no obligation to take the money and reinstate Seaton as a member.

There is no excuse on the part of the appellee for a failure to comply with his contract. He had the'entire month of November in which to pay the calls upon him, and was notified that the amount was payable on the twenty-ninth of that month. The case of National Mutual Benefit Association v. Jones, 84 *97Ky., 110, presents facts entirely different from those appearing in this record. There the money was paid •and received by the company after the forfeiture; and not only so, other assessments were made and paid by the assured after that time; and under such •circumstances it was held that the forfeiture had been waived and the company estopped to 'deny that Jones was a member. In the present case the company refused to receive the money, and asserted its right to inquire as to the condition of the health of the assured before doing any act that would estop them from relying on the forfeiture. This it had the right to do, and no custom has been established that would authorize this court in saying that, after default in payment by the member, he could, nevertheless, claim the benefits of the insurance and continue a member, although his health was such as ’ that no company would undertake the risk of an insurance on his life.

With this view of the case, as presented by the special verdict, it is not necessary to consider the •other questions made. Tire judgment is therefore reversed, with directions to enter a judgment for the ■defendant.