Modern Woodmen of America v. Anderson

Mr. Presiding Justice Barker delivered the opinion of the Court. This is an appeal from a judgment rendered upon a certificate or policy of insurance on the life of appellee’s husband, held in the Modern Woodmen of American. The contention is that the holder of the certificate, S. T. Anderson, at the time of his death, had ceased to be a member of appellant, and that the certificate was void by reason of his failing to pay certain quarterly dues and a mortuary assessment made for the month of June, 1896. The point is made in appellant’s brief that no demand for the payment of the amount of the certificate was made by appellee or proofs of the death of her husband presented to the society before the commencement of the suit, but we shall not consider it for the reason that it was stipulated upon the trial that the defendant would raise no question except in regard to non-payment of dues and assessments. Concerning the contention that the certificate was rendered void by Anderson’s failing to pay the quarterly dues of January and April, 1896, it is sufficient to say that appellants, instead of electing to so consider it, made and collected from him mortuary assessments after his default therein, and by so doing recognized him as a member and the certificate as being in force. The important question involved is whether the nonpayment of the mortuary assessment for June was sufficient to defeat a recovery. While we are inclined to the view that proof of notice of the assessment was not properly made, and that the court should have sustained the objection to the affidavit offered, we prefer to decide the case upon the broader and more substantial ground that by levying an assessment upon Anderson after his delinquency was known to appellant it waived its right to claim a forfeiture. If the assessment for July had been paid there could be no question under the authorities that the society would be estopped from claiming that a failure to promptly pay the June assessment worked a forfeiture of the certificate of insurance. While the general requirement for the prompt payment of mortuary assessments is quite rigid it does not seein chat appellant insisted upon a strict compliance with it from appellee’s husband. There were several instances in the year 1895, where assessments were paid by him months after they were due and payable. The course of conduct of appellant toward him in that regard was such as to induce in his mind a belief that that part of the contract which provides for a forfeiture in the event of failure to comply promptly with that rigid requirement'would not be insisted upon. Where an insurance company, in its course of dealing with the insured, has led him to a reasonable belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as a defense in a suit upon the policy. Home Life Ins. Co. v. Pierce, 75 Ill. 426; Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Railway P. & F. C. Ass’n v. Tucker, 157 Ill. 194; United States Life Ins. Co. v. Ross, 159 Ill. 485; National Gross Loge v. Jung, 65 Ill. App. 313. In the face of the fact that Anderson was in default of payment of the June assessment, appellant levied assessments against him for the months of July and August; that would seem to indicate that the same course pf dealing that had been pursued toward Anderson would be continued. If appellant, after learning that Anderson was delinquent in payment of assessments which had been made against him, levied another assessment for a subsequent month, it thereby waived its right to declare the contract forfeited for such delinquency. The making of the subsequent assessment was a recognition of the continued existence of Anderson’s membership. Railway P. and F. C. Association v. Tucker, 157 Ill. 194; Railway P. and F. C. Association v. Swartz, 54 Ill. App. 445; Stylow v. Wis. Odd Fellows’ M. L. Ins. Co., 69 Wis. 224; Painter v. Industrial Life Ass’n, 131 Ind. 68. There was ample evidence that appellant’s officers had knowledge of Anderson’s delinquency on the June assessment when the assessments for July and August were made. Appellant produced a witness who testified that about a month before Anderson died he told him that he intended to allow his Modern Woodmen insurance to lapse. Appellee offered to show that for two months before his death Anderson was insane, but the court, upon the objection of appellant, would not allow her to do so. If, as a matter of fact, Anderson was insane at the time, the making of such remark could have no bearing; and if, upon appellant’s objection, appellee was denied the right to show such insanity, then appellant can claim no advantage from the remark. We are clearly of the opinion that the right to claim a forfeiture because of the non-payment of the June assessment was waived, and that the judgment should stand. Judgment affirmed.