Meagher v. Life Union

Hardin, P. J. 1. Under the allegations of the complaint, and admissions thereof by the defendant, it must be assumed that it is incorporated under and governed by chapter 175 of the Laws of 1883, and is “engaged in the business of life insurance upon the co-operative or assessment plan.” The defendant issued its policy or certificate of membership to Hanorah Kelly, and she thereby became a member of the defendant, and was insured in the sum of $1,000 for the benefit of her daughter, Mary Kelly, which sum the defendant agreed to pay, in case of the death of the assured, from its mortuary or benefit fund, or from any moneys that should be realized to said fund from the next premium or assessment due from all the members. It appears to have been admitted upon the trial that at the time of the death of Hanorah Kelly the mortuary fund amounted to upwards of $1,000. The production of the certificate of membership established prima facie Hanorah Kelly’s standing as a member of defendant’s association, and cast the burden of proof upon the defendant to show such facts and circumstances as should indicate that she had lost such standing at the time of her death. Demings v. Supreme Lodge, (Sup.) 14 N. Y. Supp. 834; Supreme, Lodge v. Johnson, 78 Ind. 111. The complaint contained an allegation that “said Hanorah Kelly became and was a member of the defendant in good standing, ” That allegation was admitted expressly by the answer of the defendant, and must therefore be taken as true for all purposes of the action. Code, § 522; Quinby v. Carhart, (N. Y. App.) 30 N. E. Rep. 973. 2. After the refusal by the company to pay or to furnish blanks, Mary Kelly had an undoubted right to assign any cause of action, which she had against the defendant; nothing in the policy prohibited such assignment. Cooke, Life Ins. § 72, p. 118; Lyon v. Rolfe, 76 Mich. 146, 42 N. W. Rep. 1094. [250] 3. Under the policy, presumptively it was the duty of the beneficiary to furnish “proofs of loss * ,* * within six months after death occurs,” and by a provision in the policy such “proofs must be completed upon the blank furnished by the union.” With a view of carrying forward that duty the beneficiary applied by a letter written on the 11th of March, and sent to the defendant for “blank proofs of loss on policy 5,021, H. Kelly.” That application Seems to have been received by the defendant, considered, acted upon, and a refusal made to furnish the blanks; and the position taken by the company in its refusal was that “the policy therefore became null and void, and ceased to be in force, on November 4,1890.” After the beneficiary «received such notice of such refusal, she was entitled to assume that the company would furnish no blanks to her upon which proofs could be made, and that proofs would be unavailing, and that the company absolutely refused to pay. In section 469, May, Ins., it is said: “A distinct denial of liability and refusal to pay, on the ground that there is no liability, is a waiver of the condition requiring proof of the loss. It is equivalent to a declaration that they will not pay though the proof be furnished; and to require the presentation of proof in such a ease, when it can be of no importance to either party, and the conduct of the party in favor of whom the stipulation is made has rendered it practically superfluous, is but an idle formality, the observance of which the law will not sustain. * * * And of course the waiver of the proof is a waiver of the condition that payment is not to be made till a limited time after the proof; so that, in such ease, suit may be brought at once upon the denial of1 liability, although the time within which, after proof of loss, the payment would hé demandable may not have expired. ” The author cites, for the doctrine just stated, Norwich & N. Y. Transp. Co. v. Western Mass. Ins. Co., 34 Conn. 561. See Citizens' Co. v. Boisvert, 11 Quebec, Law R. 337. The learned counsel for the respondent calls attention to the case of McConnell v. Association, 79 Iowa, 757, 43 N. W. Rep. 188. The language of the policy in that case diffiers somewhat from the language of the policy at bar. We think that case does not overrule the doctrine we have taken froth the writers on insurance. We think the language of the court in the case reported in Norwich & N. Y. Transp. Co. v. Western Mass. Ins. Co., 34 Conn. 561, is appropriate to the case before us, and pertinent to the question under consideration. In speaking of a clause in the policy in that case somewhat similar to the ope before us, Shipman, J., said: “This clause was for the protection or convenience of underwriters, and, when they waived the preliminary proofs, they also waived the benefit of this stipulation, and rendered it nugatory. It would be absurd to say that they still retained the right to have 60 days within which to pay the loss, when they had declared they would not pay at anytime nor under any circumstances.” This doctrine finds countenance in the following cases: Insurance Co. v. Catlett, 12 Wheat. 392; Allegre v. Insurance Co., 6 Har. & J. 408; Phillips v. Insurance Co., 14 Mo. 220; Insurance Co. v. Cary, 83 Ill. 453; Insurance Co. v. Maguire, 51 Ill. 342; Insurance Co. v. Gracey, 15 Colo. 70, 24 Pac. Rep. 577; Insurance Co. v. Harvey, 82 Va. 949. See, also, Cooper v. Association, (Sup.) 10 N. Y. Supp. 748. We think the evidence produced by the plaintiff warrants the conclusion that the defendant absolutely refused to furnish blanks upon which proofs of loss could be made, and that the defendant intended to convey to the beneficiary the idea that proofs of loss would be useless and unavailing, and to take the position that the company absolutely refused to recognize the policy issued by it to Hanorah Kelly, and to declare that the same was null and void, and that the beneficiary had no claim upon the defendant. Under such circumstances, we think the defendant was not entitled to delay the plaintiff in the assertion of her claim by suit upon her supposed cause of action against the defendant. We are therefore of the opinion that the nonsuit ought not [251] to be sustained upon the ground suggested at the circuit. We think a new trial should be granted. Judgment reversed, and a new trial ordered, with costs to abide the event.