Rockwell v. Mutual Life Insurance Co. of Wisconsin

20 Wis. 335 | Wis. | 1866

Downer, J.

Tbe only ground on wbicb tbe nonsuit granted in tbe court below can be sustained, is tbat tbe plaintiff failed to prove an unconditional renewal of tbe policy. October 6tb, 1862, tbe company received tbe note of tbe assured, and John S. Rockwell’s draft payable at tbe Summit Bank, on wbicb tbe Insurance Company received tbe money. Tbe money and note, if received unconditionally, it is admitted, would bave renewed tbe policy and continued it in force until after tbe death of Rockwell. It is contended tbat tbe plaintiffs proved tbat they were received only upon condition tbat Rockwell was tben in good bealtb. All the evidence of sucb condition is in tbe letter of tbe secretary of tbe company to Mr. Rockwell, in wbicb, after acknowledging the receipt of tbe note and draft to pay tbe annual premium on tbe policy, be says: “ As this is past due, it will accord witb our rules for you to send us a certificate of good bealtb, and in your case we will be satisfied witb your own. You did not instruct me where to send tbe renewal receipt, and so I bave not enclosed it.” The closing sentence, about sending tbe renewal receipt, must be regarded as equivalent to saying tbat it would bave been sent if tbe secretary bad known where to send it; and tbat, too, notwithstanding there was no proof tbat Mr. Rockwell was then.in good bealtb.

It may be said tbat such renewal receipt, if it bad tben been sent without tbe certificate of bealtb, would bave been a certificate renewing tbe policy only on tbe condition tbat Mr. Rockwell was tben in good bealtb. Tbe rule of tbe company, if rule there be, is not before us, and we are not informed of tbe terms of that rule; whether it is that no renewal at all shall be made unless the proof of good health is first made, or whether the renewal may be conditional, or whether it is discretionary with the secretary or officers of the corporation to insist upon the proof or not just as they may please. But the question is, whether it is certain from the evidence that Mr. Rockwell must have understood and did understand, if he exercised ordinary care, that the money and note were received conditionally. For if no such information was given him, the policy was renewed by the company’s receiving his money and the note. There is nothing in the evidence to the effect that they would be returned, or held subject to the order of Mr. Rockwell, if the certificate of good heath was not forthcoming. But there is an intimation that the renewal receipt would have been sent without such certificate, if the secretary had known where to send it. The presumption from the evidence is, that the company still retain both money and note, without even having offered to return them. It is not clear to our minds that Mr. Rockwell did or could have understood from the letter that his money was received only on condition of his furnishing the certificate of good health. The nonsuit was wrongly granted.

By the Court. — The judgment of the circuit court is reversed, and a venire denovo awarded.