
    Agnes Ronald, App’lt, v. The Mutual Reserve Life Fund Association, Resp’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed July 18, 1890.)
    
    1. Insurance (lies) — Forfeiture—Reinstatement.
    After the certificate in suit had lapsed for over a month the premium was paid .and a receipt taken, which stated that it was given on condition that the member was living and of temperate habits, and in as good health as when originally received as a member, and that otherwise the payment, receipt and original certificate should be null and void. The deceased member was not of temperate habits and died the following day of fatty degeneration of the heart. Held, that the payment and receipt constituted a new contract; that the insured was bound by the terms and conditions of the receipt whether he or his agent read it or not, a'nd the facts not being as stated therein, the certificate was not reinstated, but remained null and void.
    3. Same — Waiver.
    A mere request for proofs of loss, which does not require extra expense and effort on the part of the beneficiary, will not amount to a waiver of such an existing forfeiture.
    
      Appeal from judgment entered upon a dismissal of the complaint at circuit at the close of the plaintiff’s case.
    Action to recover $5,000 upon a certificate of membership issued by the defendant upon the life of George Eonald and payable to the plaintiff as beneficiary.
   The following opinion was written by the trial judge:

Barrett, J.

By the failure to pay the dues, ten dollars, on or about August 21, 1884, the policy became null and void, and all previous payments made thereon were forfeited to the company. The contract of life insurance was then at an end. This was the situation when Mr. Hardenburg went to the office of the company on September 26, 1884, and paid the ten dollars so due on the 21st of the preceding August Mr. Hardenburg was bound to know that a reinstatement of the policy on September 26th depended upon the will of the company, and accordingly he should have examined the instrument given to him at the time of payment Such instrument could not, in the nature of things, have been understood to be an ordinary receipt of dues. It would naturally express the terms of waiver, or the conditions of reinstatement, or whatever else was essential to give renewed life to the old policy or to create a new contract. The receipting clerk had no authority in law to contract afresh for the company, except upon the terms and conditions to which he was limited by the instructions given to him pursuant to the constitution and bylaws, which constitution and by-laws were made part and parcel of the original contract of insurance. Accordingly the payment of the ten dollars, and the delivery, contemporaneously therewith, of the receipt, together constitute the fresh contract. The insured thereupon became bound by the terms and conditions embodied in the receipt, and he so became bound whether he or Mr. Hardenburg read it or not. He was as much bound by the terms of the receipt as he was by the terms of the original policy. How,, this is a conditional receipt. It specifies the fact that the time for the payment of the dues had expired; that such payment was tendered after the expiration of the contract period; and that the receipt was given and accepted upon certain conditions. These conditions read as follows: “ That the said member is now living, and of temperate habits, and is in as good health as when originally received as a member of the association under the certificate.” And it further provides that otherwise the payment and the receipt and the original certificate should be null and void. It is clear, upon the evidence, that the insured was not, on September 26, 1884, a man of temperate habits, nor in as good health as when originally received as a member of the association under the certificate. It would seem to follow, therefore, that the payment at that date of the August' dues was null and void, and that the original certificate received no fresh life. It remained just as it was at the time of payment; null and void.

It is also contended that there -was a -waiver resulting from the request for proofs of death, and from the instructions given in regard to them. In my judgment this request and these instructions did not amount to a waiver of an existing forfeiture. The plaintiff was not thereby misled to her prejudice. Her rights depended upon the facts existing at the death of her husband. The question of waiver might subsequently arise with respect to -conditions as to the proofs of death, but the insurer is not bound to abandon its claim of forfeiture if it would insist upon a compliance with the terms of the policy as to the proof of death. The case of Insurance Co. v. Stevenson, 8 Ins. Law J., 922, is in point. The principle which I have stated was there maintained by the court of appeals of Kentucky, and the learned editor of the journal adds a very copious and instructive note, citing all the cases upon the subject, and making the following clear and correct statement of the results: “ If the mere demand for formal jproof of loss, with a knowledge that the insured had violated a policy stipulation, were liable to operate as a waiver of such stipulation, it would follow that the insurer must surrender his right to demand such proof, if he would avail himself of the breach; or, at any rate, he could not safely demand proof without at the same time being careful to notify the insured of his proposed future line of defense.” There are cases which hold that there may possibly be an election between the claim of forfeiture because of acts antecedent to the death of the insured and the demand for proofs of death, but those are cases where, upon the facts, there was a clear election; cases where the plaintiff had been subjected to expensive and burdensome efforts to supply elaborate details in the proofs required by the company; cases where the facts otherwise indicated clear abandonment of any position inconsistent with the demand for such elaborate and expensive proofs. It is needless to say that nothing of the kind ■exists in the present case. The defendant asked for nothing more than the ordinary proofs required under ordinary circumstances, and just as soon as it was clear to the minds of those who were acting for the company that there was no just claim against it, owing to the facts existing at the time of death, that position was promptly asserted. For these reasons I feel constrained to dismiss the complaint; and I think it fair to say that it is one of those cases where a well regulated company, desiring to do justice to all those whom it represents, might fairly, and with a due sense of equity, make the defense it has here. It certainly was a very peculiar case, where, after a policy had lapsed for over a month, and the insured was within one day of his death, suffering from fatty degeneration of the heart, the dues have been tendered without full disclosure of the then existing facts. I do not suppose there is the slightest doubt that if the whole truth had been known to the officers of the company they would scarcely have felt justified in acceding to the request that the insurance be kept alive. I am satisfied, therefore, that in this case the application of the rules of law do not work any real hardship. Complaint dismissed.

Chas. B. Meyer, for app’lt; Alfred Taylor, for resp’t

Per Curiam.

It would be unprofitable to add to the reasons given by Mr. Justice Barrett on the trial of this action for dismissing the complaint. It is enough to say that those reasons, seem to us entirely satisfactory and convincing, and that we fully concur in the conclusion to which they led the learned judge.

Judgment affirmed on the opinion of the court below, with costs.

Yan Brunt, P. J., and Bartlett, J., concur.  