White v. Brotherhood Locomotive Firemen & Enginemen

Siebeciceb, J. Tbis action for recovering tbe amounts of assessments plaintiff and her assignor paid on tbe benefit certificate of Thomas J. White, deceased, is one to recover tbe sums paid to tbe defendant under tbe mistaken belief that White was living when tbe assessments were levied, demanded, and paid. It is established that White died in 1901, and that tbe right to levy assessments against him as member of tbe Brotherhood ceased at that time. Under these circumstances it was held in White v. Brotherhood of 326 Locomotive Firemen, 165 Wis. 418, 162 N. W. 441, that tbe party paying such assessments after White’s death was entitled to reimbursement. We are persuaded that this decision should be adhered to as a proper determination of this question. It follows from this that the plaintiff is entitled to maintain this action in its present form and that the estates of Thoifias J. White and Ellen White, the beneficiary named in the certificate, are not interested in this claim. It was found and determined in the White Case, and the trial court in this case reiterates the finding, that the officers of the Brotherhood had as full knowledge of the facts of White’s disappearance as had the plaintiff and her mother, who paid these assessments. The trial court determined in this case, as was held in the former case, “that the officers of the lodge advised plaintiffs to continue payment of the dues and assessments upon the certificate, which was done. Both parties considered the contract valid up to the time action was commenced, and the defendant, therefore, should not be permitted to repudiate it under the 'established facts in the case.” It is now argued that the right to recover on the contract does not prevent the statutes of limitation from running against payments of assessments from the date they were made. The logic of this contention would prevent recovery of assessments or premiums paid under our statutes on any life insurance contracts when the insured disappears, without tidings of his whereabouts, if they were made more than six years before the commencement of action and after the death of the insured. A period of seven years after last tidings is required to raise a legal presumption of death in such cases. It is readily conceivable that the insured may actually have died at the time of his disappearance but that the fact of death did not become lmown for more than six years thereafter. It is reasonably to be expected that the insurer and the beneficiary, under the facts and circumstances surrounding the disappearance of an insured person, might 327 desire to keep tbe policy alive beyond tbe seven-year period upon wbicb a presumption of death may be claimed. We discover no valid reasons why tbe insurance- contract cannot, by agreement with tbe insurer, be continued in force as a subsisting and valid one beyond tbe seven-year period. This ' conclusion, we think, was properly adopted and sustained in tbe White Case, supra. Since tbe contract of insurance can be so treated by tbe parties, no cause of action can accrue for recovery of premiums and assessments paid thereon after death of tbe person insured until tbe contract is terminated by either party. Applying these considerations in tbe instant case, it follows that tbe defendant and tbe plaintiff and her sister by mutual arrangement treated tbe certificate as valid up to tbe time tbe plaintiff declared it due and demanded payment of tbe proceeds thereof and repayment of tbe assessments and defendant’s rejection of tbe demand on November 19, 1914; and that no action for recovery on tbe .policy and of tbe assessments paid after tbe death of Thomas J. White in 1901 accrued until such demand was rejected by tbe defendant. Under these circumstances plaintiff’s cause of action is not barred by tbe statutes of limitation. Tbe trial court allowed interest to plaintiff from tbe date of tbe payment of tbe several assessments for wbicb recovery, is awarded in this action. This we consider to be erroneous. Interest should be allowed on tbe sum of tbe assessments paid only from November 19, 1914. Tbe amount of interest allowed by the court is $92.52. Tbe proper amount is. $36.32. Tbe judgment should be modified, therefore, by deducting tbe sum of- $56.20, leaving tbe sum of $245.YY as tbe correct amount of recovery. As so modified tbe .judgment stands affirmed. By the Gourt. — It is so ordered, tbe appellant to recover eosts in this court.