Phillips v. Fraternal Reserve Ass'n

171 Wis. 143 | Wis. | 1920

Rosenberry, J.

That clause under which the defendant claims the rights of the plaintiffs are forfeited is a self-executing forfeiture provision, and one, therefore,' to be sustained by the courts. Haycock v. Sovereign Camp W. O. W. 162 Wis. 116, 155 N. W. 923; Behling v. Northwestern Nat. L. Ins. Co. 117 Wis. 24, 93 N. W. 800.

The question is whether this positive provision of the contract was, under the' circumstances in this case, modified by conduct of the company which was inconsistent with its provisions. Ramsey v. Travelers’ P. Asso. 147 Wis. 405, 133 N. W. 634, and cases cited. In the Ramsey Case the rule is stated thus: .

“Where the conduct of an insurance company with reference to strict observance on the part of the assured of the agreement as to payment of dues, or payment in the particular manner stipulated, is such as, naturally to, and that it in fact does, cause the assured to believe that such performance will not be insisted upon, but that variances therefrom, within the limitations suggested by such conduct, will be regarded by the company as sufficient performance to preserve the integrity of the agreement, — it will be conclusively presumed that the minds of the parties met upon that basis, displacing, to that extent, the letter-of the contract; this upon the equitable doctrine of estoppel in pais.”

If by the conduct of the parties the contract in respect to forfeiture was in effect modified, or if, what in practical effect amounts to the same thing, the defendant was estopped by its conduct from asserting its rights under the forfeiture clause, then the rights of the beneficiaries under the certificate were never forfeited, and the insured was not delinquent, because the court found, and the finding is abundantly supported by the evidence, that it was the almost universal practice to accept such payments up to the date of the making of his report by the local secretary, which was from ten to fourteen days after the default occurred. Within that period — as a matter of fact within twenty-seven hours of the time of the default — the insured died.

The difficulty with the position of the plaintiffs is that, with the single exception of assessment 142, each default was relieved within the time and in the manner prescribed by the by-laws. How can it be said that reinstatement in the manner prescribed by the contract operates to modify the contract or to estop the defendant from asserting its rights under other clauses of the contract? The forfeiture clause being a self-executing provision, the contract must be given its full effect; that is, the member is suspended when the default occurs, and the policy is not in force until the member is reinstated in the manner prescribed by the by-laws. The insured died before reinstatement was attempted. . At the time of his death, by reason of his default, the policy was not in force and the defendant therefore not liable. The insured was an able lawyer and had liad a large experience in insurance matters, and must have understood and appreciated the legal consequences of his acts. If he did not, although the result is harsh, we cannot rewrite his contract so as to create a liability where none existed.

If the insured diad attempted to reinstate himself in the customary manner a different situation would exist. There is nothing to indicate that the defendant or the insured ever regarded the contract as in force during the periods between default and reinstatement. No action on the part of an officer of the local organization or of the defendant company was necessary under the terms of the policy to create a forfeiture. Hence it was immaterial whether the insured was' reported delinquent or not. If the default existed, the forfeiture occurred.

By the Court. — Judgment reversed, and case remanded with direction to dismiss the complaint.