Hartford Life Annuity Insurance Company v. Unsell

STATEMENT BY MR. JUSTICE HARLAN.

This action was brought upon five certificates of membership, in the nature of policies of life insurance, issued by the plaintiff in error to E. J. Unsell, the deceased husband of the defendant in error, who was the plaintiff below, numbered 24,981 to 24,985, inclusive, dated September 27, 1881, and each for the sum of $1,000; also, upon a similar certificate, numbered 52,143, for the sum of $5,000, dated July 10, 1882. The charge of the court at the first trial will be found in 32 Feb. Rep. 443.

The petition alleged that the assured died December 31, 1885, having performed all the conditions of the policies on his part to be kept and performed. The answer denied that the assured died December 31, 1885, and alleged that his death occurred on January 31, 1886. It also alleged that none of the certificates were in force at the latter date, by reason of the fact that the dues payable by the assured on the 1st day of January, 1886, were not paid at any time prior to his death; consequently, the certificates of insurance ceased to be of any force or effect.

To the answer setting up this defense the plaintiff replied: 'She admits that her husband, Elias J. Unsell, died January 31, 1886, and not December 31, 1885, as, through clerical error, was averred in the petition. Further replying, she denies that the said Elias J. Unsell failed to pay the monthly dues for the month of January, 1886, as averred in the answer, but avers the same were paid. And for further reply this plaintiff says that, for several months before his death, the said Elias J. Unsell was in such agony and pain of body as to seriously affect his mind, and render him unfit for attention to any business; that, in consequence thereof, said Unsell lost his memory and the knowledge of all his business affairs, but was fully conscious that he was about to die; that in December, 1885, and while he was so under disability, and possessed of a consciousness of his approaching death, he informed plaintiff and his friends that he had paid up all that was due by him to the defendant; that plaintiff supposed and yet believes such to be the fact, that, during the whole of the month of December, 1885, said Elias J. Unsell was at home, confined to his bed, that he never received any notice or had any knowledge that anything was due on any of said certificates, nor had this plaintiff, or any of his friends, such knowledge until on or about January 26, 1886, when a notice was received through the mail from defendant that dues from January 1, 1886, were in arrears; that she at once, for said Elias J. Unsell, forwarded to defendant the sum of $5, to pay dues for the months of January and February, 1886, which sum was duly received by defendant, and was kept by it, and not returned until after defendant had learned of the death of said Elias J. Unsell.

'And for further reply, plaintiff says that defendant is and ought of right to be estopped from now setting up the alleged failure to pay said dues in advance as any defense, for she avers that, during the whole time said Unsell has been the owner of certificates in the defendant company, said defendant has, without objection, received from him the monthly dues long after the date on which by the terms of the contract they were payable, and had thereby led said Unsell to believe that the payment in advance was not essential, and had waived the payment thereof in advance.'

The material conditions of insurance under the several certificates were as follows:

'Of payments. The person to whom this certificate is issued agrees to pay to said company three dollars per annum, for expenses, on the first day of the month after date of issue, and at every anniversary thereafter, so long as this certificate shall remain in force; or by monthly or other pro rata installments of the same, in advance, for periods of less than one year.

'Conditions of acceptance. The holder of this certificate further agrees and accepts the same upon the express condition that if either the monthly dues, assessments, or the payment of the ten dollars towards the safety fund, as hereinbefore required, are not paid to said company on the day due, then this certificate shall be null and void and of no effect; and no person shall be entitled to damages, or the recovery of any moneys paid for pro tection while the certificate was in force, eiher from said company, or the trustee of the safety fund.' It appeared in evidence that the company mailed at Hartford, January 21, 1886, a postal card as follows: 'Hartford Life and Annuity insurance Company. Reinstatement account. Elias J. Unsell, 308 North Commercial Street, St. Louis, Missouri. Certificates numbers 24,981 to 24,986, and 52,143. Payments are in arrears for assessments _____, dues from January to May, $5. Memorandum: This should be returned when remittance is made; also accompanying health certificate signed by the member. Reinstatement cannot be made without proper warrant that the member is alive, and in good health.' This card had on it the following blank form of health certificate: 'I hereby warrant and declare that, since the date of such certificate, I have sustained no personal injury, nor been afflicted with any disease of a serious nature. That my habits are temperate now, and am in a sound condition and good health, and I hereby apply to be reinstated in consideration thereof. Dated _____ this ___ day of _____ 188_.'

The plaintiff testified that she received the above postal card on the 28th of January, 1886, and on that day addressed and mailed to the defendant's secretary at Hartford a letter as follows: 'Inclosed please find $5, dues on my husband's policy 24,981 to 24,985, and 52,143, from January 1st, 1886.' This letter was received by the defendant February 1, 1886.

On the 3d day of February, 1886, the plaintiff received from the defendant this postal card: 'Hartford Life and Annuity Insurance Company. Reinstatement account. Elias J. Unsell, 308 North Commercial Street, St. Louis, Missouri. Certificate 24,981. Payments in arrears, nothing. Assessment No. ___, installment on deposit _____, dues from January 1 to March 1, 1886, $7.50. Total payable at this date, $7.50. Assessment No. 30, for $45, will be due and payable March 1, 1886, if reinstatement is made. Memorandum: This should be returned when remittance is made, also accompanying health certificate signed by member. Reinstatement cannot be made without proof that the person is living, and in good health.' This notice was mailed February 8, 1886, and had upon it a blank health certificate like the one on the previous postal card.

Under date of February 8, 1886, the plaintiff wrote to the company as follows: 'My husband, Elias J. Unsell, insured in your company under policy 24,981 to 52,143, died on Sunday, January 31. Please send me blank proofs of loss, that I may have the same properly executed.' The defendant, before receiving this letter, wrote to the plaintiff, under date of February 9th, as follows: 'We have just received information from our St. Louis agent that the decease of your husband, Mr. E. J. Unsell, has taken place, and it being impossible, in consequence, that the membership issued by this company upon his life be reinstated by the furnishing of health certificate, for which we asked on February 1st inst., such health certificate being asked for because of the lapse of membership on January 1st last, we have to return you herewith $5.00, the same being the tender of your arrears made to us under date of January 28th, and which was unacceptable, as notified to you, until our conditions have been complied with.'

Evidence was introduced to show the course of business between the assured and the company during the whole period covered by the certificates, in respect to the payment of dues after the date fixed in the contracts of insurance.

The defendant asked the court to instruct the jury as follows:

'The court charges the jury that if they believe, from the evidence, that it was not because of a supposition that prompt payment of dues, payable January, 1886, would not be required, that such payment was not made, but because of the sickness or mental disability of the assured, then they will find for the defendant.

'The court charges the jury that the defendant was not required, by the terms of the certificates sued upon, to give the assured notice of the time when his dues were payable. He was bound to know when such dues were payable, and make his payments according to the terms and requirements of the certificates.

'The court charges the jury that they cannot find, from mere isolated instances of indulgence to the assured, that the defendant pursued such a course of business with him as led him to believe that the defendant would not insist upon payment of dues, stipulated for and required in the policies or certificates of membership.

'The course of business, in regard to time of payment, must have been general and uniform, and such as would enable the jury to say that it was the settled practice in this regard, adopted by the defendant as to the assured.'

The court refused to so charge the jury, and the defendant 'duly excepted.'

The jury, having been charged by the court, returned a verdict in favor of the plaintiff for the amount sued for, and judgment was entered against the company for $10,851.66. A motion for new trial was overruled.

Chester H Krum, for plaintiff in error.

[Argument of Counsel from pages 444-446 intentionally omitted]

''Geo. D. Reynolds'', for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.