Reed v. Bankers Union of the World

121 Mo. App. 419 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts). — Plaintiff maintained on the trial, that defendant received and kept the May and June assessments on the policy. Defendant introduced evidence tending to show that these assessments were temporarily retained for the purpose of giving Mrs. Reed credit for them and reinstating her and the policy, on condition that she would sign and return a certificate of good health in proper form, and that as soon as it was ascertained that Mrs. Reed was dead, it returned the amount of the assessments to plaintiff. The learned trial judge found that defendant did not return the assessments, and as there is some substantial, evidence in support of this finding, we are bound by it in disposing of the case on this appeal. On the assumption that defendant’s supreme secretary received and retained the May and June assessments, and that it has not at any time returned or offered to return them, or either of them, to plaintiff, the question which arises for decision, is whether or no defendant, by its conduct, waived a compliance, by Mrs. Reed, with the requirements of section B, division 5, of the by-laws, that is, waived its right to- suspend her as a member of the order and to forfeit the policy. “A waiver is indeed the intentional abandonment or relinquishment of a known right,” quoting from West v. Platt, 127 Mass. 372; Fulkerson v. Lynn, 64 Mo. App. l. c. 653; Fraser v. Aetna Life Ins. Co., 90 N. W. l. c. 481; United Firemen’s Ins. Co. v. Thomas, 82 Fed. l. c. 408; Knarston v. Ins. Co., 124 Cal. 74.

Bishop says, “Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterward.” [Bishop on Contracts, sec. 792.]

In First National Bank of Los Angeles v. Maxwell, 123 Cal. 360, quoting from Ross v. Swan, 7 Lea 467, it is said: “To malte out a case of abandonment or waiver of a legal right there must be a clear, unequivocal and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part.”

In Titus v. Ins. Co., 81 N. Y. *419, it is said: “When there has'been a breach of a condition contained in an insurance policy, the insurance company may or may not take advantage of such breach and claim a forfeiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result.”

In Andrus v. Insurance Assn., 168 Mo. 151, 67 S. W. 582, where the facts were very similar to those in the case at bar, the court, speaking through Marshall, J., at pages 165-6, said: “It (the insurance company) did not refuse to take it (the premium). It did not mark the policy lapsed or forfeited. It never objected to keeping the money and never offered to return it until more than a month after she was dead. Then it Avas too late to take such a position. The conditional receipt in use by the company is a snare in itself. It acknoAvledged receipt of the money. It keeps the money. But it says the policy is not reinstated by the acceptance of the money and shall continue to be null and void until the health certificate is filed, and until the president and medical director determine to reinstate the policy. The company must take one horn of the dilemma or the other. It cannot retain the benefits and deny the existence of the contract. If it does, not wish the receipt of the premium to have the effect in laAV of reinstating the policy or of preventing a forfeiture, it must refuse to receive the money until the health certificate is filed and until the president and medical director act.”

The defendant not only received and kept the May assessment, for the non-payment of which when due, it might have claimed a forfeiture, but it also received and kept'the June assessment, notwithstanding it had not received a health certificate signed by Mrs. Reéd. This conduct is inconsistent with an intention on the part of defendant to insist upon a forfeiture, but is consistent with an intention to waive it, and we think the trial court did not err in finding* there was a waiver. In this view of the case, defendant’s refused instructions, whether good or bad, are of no importance in deciding the case. But it is contended by defendant that the supreme secretary was without power to waive a forfeiture of the policy. As shown by the by-laws of defendant, the supreme secretary was its general agent to receive premiums from subordinate lodges and also from individual members, who1 were not members of a subordinate lodge, and to reinstate policies which might become forfeited for the failure of the holder to pay his assessments on the first day of each month, and no by-law was read in evidence expressly prohibiting the supreme secretary from waiving a forfeiture for delay in the payment of monthly dues, nor any by-law from which a denial of the power to waive can be inferred. The whole matter of reinstating policies which might be forfeited on account of the failure of members to make timely payments of their assessments was entrusted solely to this officer, and it is a reasonable deduction, that to waive a forfeiture on account of delay in the payment of the monthly dues was within the scope of his general agency.

In Knarston v. Ins. Co., supra, it is said: “A general agent of a life insurance company may waive the conditions of a policy, and extend the time of payment of a premium unless specially restricted by limitations and instructions communicated to parties dealing with him. The waiver of conditions is within the apparent scope of his authority in the absence of notice to the contrary to the insured.”

On the facts as found by the learned trial judge, we think there is ample evidence to1 show a waiver of the forfeiture of the policy. The judgment is affirmed.

All concur.