Mutual Protection Life Insurance v. Laury , 1877 Pa. LEXIS 121 ( 1877 )

Mr. Justice Paxson

delivered the opinion of the court,

The principal question upon the trial of this cause in the court below, as well as upon the argument here, was whether the company had waived a forfeiture under the third clause of the conditions of the policy. All of the assignments of error, from the fourth to the thirteenth, bear upon this question, and may be considered together.

The contention of the plaintiffs in error was that the learned-judge submitted the question of waiver to the jury upon insufficient evidence. His answers to the plaintiff’s fifth, sixth, seventh and eighth points, left the jury at liberty to pass upon the question of fact, whether the company had collected from Laury assessments made after the alleged lapse of the policy. Upon this point there was not sufficient evidence to submit to the jury. A scintilla is not enough: Express Co. v. Wile, 14 P. F. Smith 204. The only evidence was that the notice of assessments intended for Laury was received by Adam Laubach, his brother-in-law, who, of his own motion, enclosed the amount, $5.20, to the company. The letter containing the money was received by the company, and under the impression that it came from Laury, the secretary addressed a letter to him under date of April 17th 1873, in which he said: “Your letter of the 14th inst., containing $5.20, is received. In examining your account I notice you have no credit for Gries, Moody, Eagundus and Cyphers. Will you please inform us how this is ? Possibly you have not received the notices, or you may not have credit because the payment has not been reported to the office by the agent. An early answer is respectfully requested.” This letter was written two days after Laury’s death. Immediately, upon learning the facts, the company sent the money to their agent at Allentown, who tendered it to the personal representatives of the deceased. The above facts furnish no evidence of the receipt of the money by the company in the sense of payment. It is true the letter containing the money was received. But the money was not accepted. It was held until inquiry could be made and then returned. Upon this state of facts it was error to submit to the jury the question whether the company had collected and received from Laury the money upon the assessments. There was no evidence to warrant a finding that it had been collected.

The tenth assignment raises the broad question whether there was sufficient evidence in the case to entitle the jury to find a waiver of the forfeiture on the part of the company. The court below held that there was, and refused the defendants’ fourth point. We have already shown that there was no evidence that the company collected or received, in the sense of payment, the money upon the assessments made against Laury after his default. Were the assessment notices in themselves sufficient evidence of a waiver ? If not, the company were entitled to an affirmance of their fourth point, for there is nothing else in the case. In considering this question regard must be had to the resolution of the company passed in 1872, providing that “the secretary notify all those whose policies have lapsed from non-payment of assessments or dues, that they may be reinstated in the company by producing to the company a certificate of good health from any regularly graduated physician, obtained at their own expense, and the payment of all dues and assessments.” It appears by the testimony that the company acted under this resolution. The secretary says: “I sent the notices to members that they might be reminded of their previous membership and might reinstate themselves, if possible.” This evidence was uncontradicted. This company appears, as its name implies, to have been organized upon the principle of mutual protection. A large amount of indulgence seems to have been extended to the members, and a liberal provision made by which defaulting members might be reinstated. It would be unjust to the company if this liberality should be turned against itself, and assessment notices which were intended for a different purpose should be held to be a waiver of a forfeiture in favor of a policy holder who never paid nor offered to pay his "dues. We fail to see sufficient evidence of a waiver to justify the submission of that question to the jury. The defendant’s fourth point ought to have been affirmed.

Under the view which we take of the case, the refusal, of the court below to permit the withdrawal of the plea of nil debet becomes immaterial. So also as to the evidence referred to in the second and third assignments. It was improperly received, as it did not contradict Mr. Baughman, and was irrelevant. A discussion of these questions would be fruitless.

Judgment reversed, and a venire facias de novo awarded.