139 Minn. 246 | Minn. | 1918
Action to recover upon an accident insurance policy in which plaintiff had judgment, and defendant appealed from an order denying its motion for an amendment of the findings of the trial court or a new trial.
Defendant is a mutual benefit accident insurance association organized under the laws of the state of Ohio, and, through local br subordinate councils, conducting its insurance business on the assessment plan in that and other states including South Dakota and Minnesota. The company possesses and exercises the power and authority usually granted by law to like associations. Its insurance contracts are formed through the local councils where applicants are received.,into membership in the association, subject to the laws, rules and regulations imposed by the grand council. Its revenues are derived wholly from dues and assessments levied upon the members and these are collected through the administrative officers of the local councils.
It appears without dispute that David M. Suits was received into the association and became a member of Local Council No. Ill, located at Huron, South Dakota, on May 28, 1900. The usual certificate of membership was issued to him, and defendant thereby became obligated, in the event the insured lost his life solely by accidental means, to pay the beneficiary therein named, plaintiff herein, who was his wife, the sum of $6,300. On March 28, 1915, the insured lost his life by accidental means, and thereby defendant became liable for the full amount of the policy, unless the membership of insured and all rights under the contract were, prior to the accident, terminated and forfeited by his failure to pay an assessment and certain dues which fell due about a month prior to his death. The dues and assessment so in default were due on February 24, preceding the death, and the failure to pay the same is not questioned, and defendant by its answer interposed the default in defense to the action. Plaintiff in reply alleged a waiver of the default by a practice and custom of defendant during the preceding years of accepting and re
The assignments of error present two questions, namely: (1) Whether the court erred in denying defendant’s motion for amended findings ; and (2) whether there was a waiver of the forfeiture resulting from the failure to pay the dues and assessments referred to at or prior to the due date thereof.
It is contended by defendant that this letter was mailed to and received by each member of the local council, including decedent, and that it effectually terminated the practice of overlooking defaults, and fully restored the operation of the laws requiring a punctual payment of dues and assessments. It may be conceded that if the letter reached decedent it terminated the objectionable practice and restored the effectiveness of the laws of the order, But the court found that the letter was not mailed
The cause was submitted to the court below upon an agreed statement of facts in which, among other things, it was stipulated that if the secretary of the local council were present and sworn as a witness in the cause, he would testify that he prepared the letter pursuant to the directions of the council, and on the fifteenth of July, 1914, according to his best belief, inclosed copies thereof in envelopes properly addressed to all members of the council, including decedent, mailing the same with the postage duly paid for the usual transmission and delivery by the postal authorities; that each envelope was indorsed on the face thereof with return directions, and that the one mailed tq decedent was never returned. That the witness would further testify that he had no .particular recollection of mailing the particular letter to decedent, but he believes that he did so because of his habit and custom of-mailing all letters and notices to each member of the council. It was also stipulated that decedent was a methodical man, and that plaintiff, his wife, would testify that it was his practice to call her attention to his correspondence; that her attention was at no time called to a letter of the character of the. one here in question, and that after the death of decedent the letter was not found among his papers, and plaintiff believes that no such letter was ever received by him.
The evidence, or what would have been'evidence had the witnesses been called and examined on the trial, leaves the question whether the letter was mailed to and received by decedent in some doubt. But after careful consideration of the matter we conclude that the findings of the court thereon should not be disturbed. The findings are not clearly against the evidence. Such has been the conclusion of other courts upon substantially similar evidence. Payn v. Mut. R. Assn. 2 How. Pr. (N. S.) 220; Molloy v. Supreme Council, 93 Iowa, 504, 61 N. W. 928; Jackson v. Northwestern Mut. R. Assn. 78 Wis. 463, 47 N. W. 733. The proposed testimony of the secretary of the local council tends strongly to sustain the claim that the letter was properly mailed to decedent, but is not conclusive. Hastings v. Brooklyn Life Ins. Co. 138 N. Y. 473, 34 N. E. 289; Supreme Lodge v. Johnson, 78 Ind. 110. The presumption that
It is contended by defendant that by these provisions of the laws of the order the failure to pay assessments when due operates automatically toa suspend the member in default, and that the only effect to be given the act of paying delinquent dues, and the act of the association in accepting them, is to restore the member to good standing, subject to the limitation that restoration to good standing shall not entitle a member or those claiming under his certificate to indeffmity for injuries received during the period of suspension. And upon this ground defendant seeks to dis
The right of voluntary restoration by the payment of delinquent dues is not given, and the provisions of the constitution upon which defendant relies, properly construed, can have application only to such members as have been restored to membership and to good standing in the manner expressly provided for and permitted by the laws of the order. So far as we are informed by the record there is but one method of such restoration, either provided for or recognized by the association, and that is by petition to and favorable action by the local council of which the petitioner is a member. A restoration to good standing effected in that manner is subject to the reservation of nonliability for injuries received by the insured during the period of suspension. But the record before us furnishes no suggestion that decedent had ever been suspended, or that he ever applied for restoration to good standing in the order. He was at no time treated by the association as under suspension, and his delinquent dues were accepted without intimation on its part that he was either in default or not in good standing. In, this situation of the case the contention of defendant cannot be sustained. It is probable that in a given case the payment of delinquent dues and the acceptance thereof by the association might be treated as an application for reinstatement in the order, notwithstanding the existence of an otherwise expressly prescribed method of restoration. But such effect cannot be given the payment and acceptance shown in this ease. It does not appear that the association ever permitted restoration to good standing other than in the manner expressly provided by its laws. In this respect the case comes within the rule applied in Leland v. Modern Samaritans, 111 Minn. 207, 126 N. W. 728; and Villmont v. Grand Grove U. A. O. D. 111 Minn. 201, 126 N. W. 730, where on similar facts it was held that the question whether the payment of delinquent dues and assessments was for the purpose of gaining restoration to good standing in the order, or for .the purpose of maintaining an existing good standing was one of'fact. In those cases it ap
The case differs from Ward v. Merchants L. & C. Co. infra, page 262, 166 N. W. 221. In that case there was a provision of the contract expressly limiting the effect to the acceptance of an overdue assessment. No such provision is found in the contract in this case.
It follows that the case is controlled by the rule laid down in Mueller v. Grand Grove U. A. O. D. supra. Defendant waived the default of decedent to pay the dues and assessments in question, and by the acceptance thereof estopped itself from invoking the forfeiture. The case of Gagne v. Massachusetts B. & Ins. Co. (N. H.) 101 Atl. 212, sustains our decision in the Ward case, but is not in point in this case.
Order affirmed.