
    REQUIREMENT UNDER A LIFE INSURANCE POLICY THAT PROOF OF DEATH BE MADE IN WRITING.
    Circuit Court of Hamilton County.
    Sarah C. Menear, by E. B. Rogers, Her Guardian, v. The Aetna Life Insurance Company of Hartford, Connecticut.
    Decided, October, 1909.
    
      Dife Insurance — Averment that all Conditions were Performed — Inconsistent with Averment of Waiver — Proof of Death — Notice of Defect is not Necessary, When — Requirement as to Identification of Deceased — -Pleading—Evidence.
    1. Averments in a petition in a suit on a life insurance policy, that the condition as to proof of death was definitely performed on a certain date and that every condition required by the policy was performed, are wholly inconsistent with a subsequent averment that the condition of the policy with reference to proof of death had been waived; and in the absence of any averment óf an excuse for non-performance, or any inference to be drawn from the petition that there was such an excuse, evidence could not be offered on the question of waiver.
    2. The requirement that a proof of death be made in writing is a reasonable requirement, as is also a requirement as to the identification of the deceased.
    3. Notice of a defect in a proof of death is not necessary, where repeated notices have been given by the company that no proof of death has been filed.
    
      Andrews, Harlan & Andrews, for plaintiff in error.
    
      Wm. K. Maxwell and Shotts & Millikin, contra.
    
      Giffen, P. J.; Swing, J., and Smith, J., concur.
   It is averred in the petition that proofs of death were furnished on March 8, 1906, and that the plaintiff performed every condition required to be performed by the policy, then it is averred that the defendant waived the furnishing of proofs of death. The whole question, therefore, hinges upon whether- the proofs of death were furnished on March 8, 1906, or whether they were waived.

The averment in the petition, that the conditions were performed, first definitely performed on March 8, 1906, and then the general averment that .all conditions precedent were performed, and the averment that this condition was waived, are wholly inconsistent.

The Supreme Court has decided, in a very late ease, The List & Son Co. v. Chase, 80 Ohio State, —:

“Waiver of the performance of conditions in a contract by the party in whose favor the conditions are to be performed, is not performance, but must be alleged as an excuse for non-performance, before proof of such waiver can be received; and in the absence of such an allegation it is error to charge the jury that certain facts appearing in evidence constitute such a waiver. ’ ’

There is no averment here, and there is no inference to be drawn from the petition, that there was an excuse for non-performance, because there is a positive averment that there was a performance.

It is, therefore, manifest that no evidence could be offered on the waiver, because the petition avers there was a performance of this condition, and any error that is complained of with reference to the waiver is of no consequence — the petition averring, or requiring rather, proof of performance of condition precedent — that proofs of death had been furnished.

Many other errors are urged in the petition in error, and some of them perhaps are well taken — especially that one which required the plaintiff to offer proof that she was living, before she could recover. But if from the pleadings and the undisputed facts the court can draw a legal conclusion in accordance with the verdict — the judgment of the court — it is immaterial what errors the court committed in its charge to the jury.

Counsel, however, insist that if not permitted to prove waiver, that there was actual performance of that condition, that the proofs of death were actuary made on March 8, 1906; therefore, the policy would have been payable on June 8, 1906.

But in form 2 of the proof of death, question 5 required the identification of the deceased to be the person mentioned in the policy.

Proof of death would be of little avail if it did not show the death of the particular party insured. This was not an unreasonable requirement.

Mr. Rogers, who signed this form of the proof of death, was mentioned in the application,' which was made a part of the policy, as- an intimate friend of the insured; he had paid the premium from time to time, and was therefore particularly qualified to answer this question; yet it was not answered, was not even filled out, the number of the policy given or otherwise.

However, it is claimed that Mr. Rogers did answer this question but by failure of the agent of the company, or of the notary employed by him, that it was not filled out as he had answered it.

Proofs of death were to be made in writing; that was not an unreasonable requirement. Proofs of death were made for the purpose of being forwarded to the home office of the company, and it was in compliance with a reasonable requirement on part of the company to furnish that in writing.

Besides, to hold that to be sufficient, would be to hold that the agent representing the company had waived this right, and we have already said the pleadings do not w'arrant proof of waiver of the condition.

The proofs of death were finally furnished in May, 1907, as required by the company. Mr. Rogers voluntarily did this, and thereby tacitly acknowledged that the proofs of death pretended xo be furnished on March 8, 1906, were not sufficient.

Within thirty days after proofs of death were furnished in May, 1907, the company tendered a check’for $2,000, which was refused solely upon the ground of not being sufficient, and upon no other ground. The Supreme Court has held that such a tender, although in the form of a check, is sufficient.

The whole difficulty arose from the fact that on April 20, Mr. Rogers informed the company "that the beneficiary. was incompetent to receive the money and it would be necessary to appoint a guardian.

Counsel in their brief admit that any defect in proofs of death could be taken advantage of by the company, but that they should have reasonable notice.

Well, of course, they were never notified as to the defect in the proofs of death attempted to be made out in March, 1906, but they were notified repeatedly that no proofs of death had been furnished, and still delay continued for fourteen months— until May, 1907.

If they have been deprived of the use of the money, it was . wholly on account of their neglect, and not that of the company, who constantly expressed a readiness and willingness to pay the face of the policy — two thousand dollars.

It is, therefore, the opinion of the court that upon the pleadings and undisputed facts, the verdict of the jury was right, and that the judgment of the court of common pleas should be affirmed.  