Stylow v. Wisconsin Odd Fellows Mutual Life Insurance

TayloR, J. Notwithstanding the very able argument of the learned counsel for the appellant, we are of the opinion that the company had waived the right to declare the policy forfeited for the nonpayment of assessments Nos. 17 and 18, which were unpaid and past due at the time of his death. The assured had every reason to believe that the company -would accept the payment of these assessments as it had accepted the payment of all others within [229] a reasonable time after they became due, without making any question as to his state of health. And it is equally plain that, had payment been tendered the day before the death of the insured, such payment would have been accepted. The forfeiture, if any, arose upon the nonpayment on or before the day fixed for payment, and it is clear from the evidence that the company did not consider it forfeited on that day, and it cannot afterwards declare it forfeited because of the happening of an event which has nothing to do with the payment of the sum due. That the company did not consider the policy forfeited on account of the nonpayment of assessment No. 17, is very clear from the fact that they made assessment No. 19 against the deceased after No. 17 was past due'. "We think the case is ruled by the decisions of this court in Erdmann v. Mut. Ins. Co. 44 Wis. 376; Woodruff v. Depere, 60 Wis. 128; and Alexander v. Continental Ins. Co. 67 Wis. 422,— and cases cited in the opinions in those cases. Upon the evidence, we think the present case a much stronger one in favor of the plaintiff than either of the cases above cited. It is urged by the learned counsel that the fact that the company appended to the receipts given for the assessments paid after the time for payment had passed the conditional clause above quoted, changes the rule as laid down in the cases cited. We do not think this appendage to the receipts given can alter the case. When no fraud has been practiced by the insured in concealing his state of health at the time the payments are made, and the company receives such payments out of time, when it might refuse payment and declare the insurance forfeited, it cannot accept the money and keep it and still insist upon a forfeiture. Every time the company makes an assessment against the assured after he has failed to pay a previous assessment within the time prescribed by the rules, it waives the forfeiture of the [230] policy for such failure to pay and admits him to be a member of the company notwithstanding such failure. We are of the opinion that after the constant course of conduct of the company with the assured, as shown by the evidence in this case, the only way the company could insist upon a forfeiture for nonpayment within the time fixed by the by-laws would be by giving the assured personal notice that thereafter punctual payment would be required. It cannot with any plausibility be argued that in this case the company did not consider the deceased a member of the company up to the very time of his death, as the evidence shows that the assured was in his usual health up to the minute of his death. We think that good faith on the part of the company, as well as the law, requires that it should pay the respondent the amount of the insurance. By the Court.— The judgment of the circuit court is affirmed.