Hyatt v. Legal Protective Ass'n

BROADDUS, J. This a suit on an insurance certificate issued by defendant to Arthur W. Hyatt, plaintiff’s husband. The defense was a forfeiture for failure of the insured to pay his per capita tax when due and his assessments within thirty days after notice thereof. An installment of per capita tax and assessment became due December 1, 1902. These were unpaid [613] on December 14 when tbe insured died as the result of an injury received the day previous. The defendant demurred to the petition which was overruled; exception was taken to the ruling of the court and answer filed. The filing of the answer waived the demurrer. When plaintiff offered her evidence defendant again made the objection that the petition did not state a cause of action, an objection which is good at all stages in a cause and even after judgment, but as applied to the petition in this case is merely formal. After stating her cause of action the plaintiff failed to state what amount became due her under her policy and failed to pray judgment for any sum. There were blanks left in the petition for the purpose but they were not filled, notwithstanding the objections made both by demnrrer and to the admission of evidence. Why this was not done after notice had been called specifically to the defects is not explained. However, it can be gathered from the pleading that the amount sued for was $100, which fact is sufficient to support the judgment for that amount. Objection was also made to the admission of the certificate of insurance on the ground that it, was not the one described in the petition as the basis of the suit. The difference being that the one offered was dated April 21 and the one described in the petition was dated April 8, 1902. This discrepancy was accounted for by reason of the fact that the application of the deceased for membership in defendant’s order was dated April 8. But as the application was made a part of the policy we do not think the difference was so material as to .warrant the court in refusing to admit the paper offered. The only question arising on the merits of the controversy was the alleged forfeiture. .The policy pro^ vides that assessment shall become due and payable on the first days of September, December, March and June [614] of each year. One of the conditions of the policy is as follows: “Any member failing to pay his per capita tax when due and his assessments within thirty days of notice thereof forfeits all claim on the association,” etc. Plaintiff contends that to work a forfeiture there must be not only a failure to pay the per capita tax when due, but also a failure to pay assessments within thirty days after notice of the assessment. That is, a failure to pay a per capita tax when due will not work a forfeiture unless there is also a failure to pay the assessment within thirty days after notice. That the two must concur. It is a part of said condition that, “the mailing of notice of assessments and the per capita tax addressed to the last given post office address of the member shall be considered a legal notification. ’ ’ Thus, we see that plaintiff’s construction is borne out and that a notice of both must be given and no' forfeiture can be had until thirty days after such notice. It follows, therefore, that there was no forfeiture under the terms of the policy. It was proved at the trial that after failure ti> pay his assessment and per capita tax the insured announced to the collector of the lodge that' he was not going to be reinstated and that he would drop his insurance in defendant company. It is claimed that he intentionally stopped payments with a view of severing his relations with the order. However that may have been, he had a legal status as a member of the lodge which had not expired before his death and which is the test that fixed the liability of defendant. . It is further claimed that as the policy does not name plaintiff she was not the beneficiary; but the application does so name her as such, which is sufficient as it was made a part of said policy. Affirmed. All concur.