Pister v. Keystone Mutual Benefit Ass'n , 3 Pa. Super. 50 ( 1896 )

Opinion by

Willard, J.,

By the terms of a contract of insurance entered into on the 26th day of August, 1893, the appellants undertook and agreed to insure the life of Samuel H. Pister in the sum of $500, and to pay that amount to his wife Letitia Pister within ninety days after due notice and proof of death of Samuel H. Pister. Pister agreed on his part to pay to the company the sum of $5.00, certain annual dues, “ together with mortality assessments according to the charter, by-laws of the association and the terms stipulated in the application upon which the insurance is based.”

The evidence in this case is uncontradicted, that two mortality assessments amounting to the sum of $1.00 became due and payable according to the terms of the contract and stipulations of the parties on April 2, 1894. The evidence is also uncontradicted that Samuel H. Pister received notice of this mortality assessment as provided in the contract and by-laws of the association. It further appeared that Mr. Pister was in the employ of the company as soliciting agent at a salary of $20.00 per month, payable at the end of the month; that he settled his account for the month of March, 1894, on the last day of the month, received his full pay and refused to apply any part of it in payment of the assessment due April 2. There is no evidence that he paid or offered to pay the assessment on or before April 2, while there is evidence that he was requested to pay it on that day, but refused.

The contention here is that he had earned enough on account of his monthly salary to more than equal the amount of the assessment and it should have been so applied in order to prevent a forfeiture of the policy, but the evidence unfortunately shows that Mr. Pister made no such application of his earnings. The evidence also shows that the agents of this company did all in their power to induce Mr. Pister to pay the assessment in time to avoid a forfeiture, which he refused to do. The learned trial judge instructed the jury in answer to the plaintiff’s second point “ remember, gentlemen of the jury, that on the second of April — this demand was made on that day — there was not $1.00 due to this insured man; ” in his general charge, however, he said to the jury “ when the plaintiff closed her case she showed that at the time this assessment was due there was due also to this insured man at least a dollar, and when he died much more than that.” The jury evidently adopted the language of the judge last quoted, while the language first quoted was correct and should not have been qualified. The salary was dependent upon service and was payable at the end of the month. How could it be said, therefore, that any part of it was due on the 2d of April. The assured could not have maintained an action for it, nor could he have used it as a legal offset to an action for the assessment.

By the terms of the contract the assured covenanted on his part to pay the mortuary assessments within thirty days after due notice thereof. He had due notice of two assessments falling due April 2, 1894, he did not pay, them, and died on the 12th of the same month.

We have said that the evidence of the notice of the assessments as prescribed by the terms of the contract was uncontradicted, and that the trial judge stated in his charge “ that there was not one dollar due to this insured man because he was paid all his wages for March.” The learned judge, however, conceived the idea that because Pister was an employee of the company some other notice than that specified in the contract was required, and that the relation of employer and employee might create an indebtedness from the former to the latter, and further charged the jury, “ This company and this man being in the position of master and servant, employer and employee, if there was no demand made upon him other than the ordinary notice and there were accounts between him and the company, and by the conditions of those accounts at the time this money became due the company was indebted to him in the amount of the assessment, then I charge you that that may be equitably set off against the assessments due, and hence that there was no default.” The language of the charge was contradictory and misleading and tbe case must be sent back to tbe court below ¿for another trial.

Tbe question of extension of time and waiver is not before us; there was not only no evidence of a waiver, but the judge carefully excluded tbe question from tbe consideration of tbe jury.

There is no evidence that tbe company ever paid or tendered to Mrs. Pister any part of her husband’s wages from tbe 1st to tbe 12th of April. There is evidence that she received a gratuity of 17.00 from Mr. Boyer, the general agent of the company, soon after her husband’s death. If the company actually appropriated a part of Mr. Pister’s wages for the mortuary assessments in question, it would be conclusive evidence that they did not intend to forfeit the policy, and if such a state of facts existed, the widow should have the right to prove the same.

The second, third and sixth assignments of error are sustained, the other assignments are overruled, the judgment reversed and a venire facias de novo awarded.