Fritzpatrick v. Knights of Columbus — 143 A.D. 540

Majority

p. 540

Matilda Fitzpatrick, Respondent, v. Knights of Columbus, Appellant.

Second Department,

March 28, 1911.

Headnote

Appeal — verdict, when conclusive •— insurance — forfeiture for nonpayment — construction of policy — payment of premium through local lodge.

Where a jury finds for a plaintiff upon a conflict of evidence under a charge to which there is no exception, the appellate court will not interfere unless it appear that there were errors in the conduct of the trial, or the verdict of the jury is so against the weight of evidence as to lead irresistibly to the conclusion that it was actuated by improper motives in reaching its verdict.

In construing the clause of a policy of life insurance governing the time within = which payment of premiums must be made in order to avoid a forfeiture, the construction most favorable to the insured and which avoids forfeiture will be adopted.

Where the by-laws of a benevolent insurance society provided that subordinate lodges might provide a loan fund for its members in order to avoid forfeitures, but that payments through the subordinate lodges must be made within forty

p. 541

days from the first day of the preceding month, an insured who adopted such manner of payment was not in default where his death occurred within the forty days, although he would have been in default under another rule which required members to pay to the local treasurer within thirty days.

Appeal by the defendant, the Knights of Columbus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 10th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17tli day of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.

James E. Carroll [ Joseph C. Pelletier with him on the brief], for the appellant.

Walter Farrington [George Card with him on the brief], for the respondent.

The plaintiff, as assignee of Isabella Fitzpatrick, the beneficiary named in a certain policy of insurance issued by the defendant upon the life of John E. Fitzpatrick, brings this action to recover the amount of said policy, and the jury has found in her favor, the court denying a motion for a new trial. The defendant interposed several defenses, each one of which has been passed upon by the jury, with a conflict of evidence, under a charge to which no exception survives. Under such circumstances this court is not in a position to interfere, unless it shall appear that there were errors in the conduct of the trial, or the verdict of the jury is so against the weight of evidence as to lead irresistibly to the conclusion that improper motives actuated, that body in reaching its conclusion. Hone of these conditions exist in this case. The insured, while at work as a florist, made an application for insurance, agreeing to be bound by the rules and regulations of the society, and agreeing that the board of directors might exclude from benefits persons engaged in employments which they should judge to be hazardous. At some time during the term of insurance the directors did pass a resolution declaring that the position of a railroad fireman was hazardous, and it appears that the usual notice of such resolution was conveyed to the insured. There is evidence in the case, however, that the

p. 542

fact of the insured’s employment as a fireman was communicated to the general officers of the defendant, and that in the possession of this knowledge the said general officers continued to make assessments against the insured upon his policy and to receive payments upon the same down to the time of his death, and the learned court submitted to the jury the question of whether the defendant had waived the forfeiture, the evidence on this question having been admitted without objection or exception. There was no objection urged to the charge of the court upon this point, and the verdict of the jury is conclusive.

There was a question of the proper construction of the policy of insurance as to the time within which the payments must be made to avoid "forfeiture, and we concur in the conclusion reached by the learned court that the construction most favorable to the insured, and which avoids forfeiture, is the proper construction. The by-laws of the order provided that subordinate lodges or councils might provide a loan fund for their members, the object being to avoid forfeitures, and that payments must be made to the general order within forty days from the first day of the preceding month, and there was evidence that the local council had such a fund and that the insured had been paying through this method. If there was a period of forty days within which the insured might retain the benefits of his policy, then he was not in default at the time of his death, which occurred on the fourth of August, the last preceding assessment having been made as of the first of July. On the other hand, if the rule requiring members to pay to the local treasurer within thirty days was the one which determined his rights, then he was in default at'the time of his death. We are clearly of the opinion that the order having provided for just such a case, and the local order having such a fund, and the insured having availed himself of this method of payment, he had a right to rely upon the payment being made by the local official, and that he was not in default at the time of his death.

The judgment and order appealed from should be affirmed, with costs.

Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred.

Judgment and order affirmed, with costs.