Philips v. Baltimore Mutual Aid Society , 1897 Pa. Super. LEXIS 328 ( 1897 )

Opinion by

Porter, J.,

In the policy of insurance sued on was the provision: “ Any member in arrears for more than three weeks’ dues, shall not be entitled to benefits, but such members can be reinstated by paying such arrears and passing an examination, though they will not be entitled to benefits should sickness, accident or death occur within five weeks from date of reinstatement.” The plaintiff, the mother of the insured, submitted testimony to prove the identity of the insured and the death on October 22, 1894. She offered in evidence the policy and a so-called receipt book showing payments of dues or premiums. The defendant offered no evidence, claiming that the entries in the receipt book showed that the insured was in default at the time of her death. The policy was dated December 20, 1889. The insured had been paying dues for nearly five years. The policy and receipt book were found in her trunk after her death. There was no evidence indicating with what regularitjr she paid her dues preceding April, 1894. The receipt book included only payments made from April 9,1894, to the time of the death of the insured, but recited “ old book paid up to date.” There was no testimony to explain the entries in the receipt book, which consisted merely of dates and initials. In the absence of such explanation they would seem to indicate that the insured had made payment of her dues not on the days contemplated by the policy, but at irregular periods, — most of them when she was more than three weeks in arrear. This however was not evidence of an intention to waive any rights under the policy or to vary any of its terms. It was a course permissible by the stipulation above quoted. The purpose of that clause was to give the insured an opportunity to avert, in part, the effect of failure to pay the premiums when due. It gave a right of reinstatement but attached the condition that she should not be entitled to benefits for five weeks subsequent to such reinstatement. By the receipt book it appears that on October 8, 1894, being then more than three weeks in arr'ears, she made a payment reinstating lierself. Sbe died October 22, 1894, within the five weeks following the reinstatement. The insured being thus in default bjr the terms of the policy the beneficiary was entitled to no benefit thereunder.

We are therefore of opinion that the learned trial judge erred in not directing a verdict for the defendant. The second assignment of error is sustained and the judgment is reversed.