Phelan v. Northwestern Mutual Life Insurance — 22 N.Y. St. Rep. 305

Majority

p. 305

Ellen Phelan, Admr’x, etc., App’lt, v. The Northwestern Mutual Life Insurance Co., Resp’t.^[1]

(Court of Appeals,

Filed March 26, 1889.)

Headnote

1. Insurance (life)—Conditions of policy — Proof of mailing .of-’ notice—Laws 1877, chap. 821.

In an action to recover the amount of a policy of insurance, the policy-had. lapsed from non-payment of the premium within the specified time The plaintiff invoked the statute regulating forfeitures of life insurance-policies, and sought to enforce it on the ground that the defendant had failed to give that notice which the statute exacts as a condition of forfeiture. The defendant relied upon a paper as constituting an equivalent to such notice. No proof was given of compliance with the statutory provision as to the mailing of the notice, but the defendant claims that the-regularity of its proceedings in that respect are to be inferred from the. fact that the notice was found among the papers of the deceased. Held, that the evidence is insufficient to sustain that deduction.

. 2. Same—Notice—What not compliance with statute.

The notice relied upon by the defendant is as follows: “The conditions-of your policy are that payment must be made on or before the day the premium is due, and members neglecting so to pay are carrying their own risk.” Meld, that the notice is insufficient, as it does not, in terms, conform to the statute.

' Appeal from a judgment of the supreme court, general • term, second department, affirming a judgment in favor of defendant, entered upon an order dismissing the complaint,, at the Kings county circuit.

R. J. Moses, Jr., for app’lt; David Willcox, for resp’t.

—The defendant is a life insurance company, organized under the laws of Wisconsin, but doing; business in the state of New York. On the 31st of March.,,

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1880, it issued a policy of insurance upon the life of George D. Phelan. The premiums were payable on or before the Slsfc day of March, June, September and December in each year, and the policy contains a provision that if the premiums are not paid at the times mentioned, the policy ¡shall cease and determine. The premium that became due December 31, 1882, was not paid. It was tendered to the ■company about two o’clock on the 15th of January, 1883, but was refused. The insured died on the night of that ■day. The plaintiff is his administratrix, and sues upon the promise contained in the policy to pay the sum ¡assured in sixty days after notice and proof of death of the insured. '

It is obvious upon the facts, so far stated, that no recovery-■could be had, for the condition upon which the defendant was to be liable had not been performed; but the plaintiff ■relies upon the statute of this state regulating the forfeiture ■of life insurance policies (Laws of 1877, chap. 321), and -claims to enforce the policy upon the ground that the defendant failed to do that which the statute exacts as a -condition of forfeiture. The statute (supra) declares that “no life insurance company doing business in this state shall have power to declare forfeited or lapsed any policy thereafter issued, by reason of non-payment of premium, .unless after it becomes due a notice stating thfe amount of such premium, the place where it should be paid, and the person to whom the same is payable, shall be duly addressed ¡and mailed to the person whose life is assured at his last known post-office address, postage paid by the company; -and further stating that unless the premium then due shall be paid to the company or its agent within thirty days after the mailing of sucli notice, “the policy, and all payments thereon, will become forfeited and void,” and the statute provides that in case such payment is made within the thirty days limited therefor, it shall be deemed a full compliance with the requirements of the policy in respect to the payment of premium, and declares that no ¡such policy shall in any case be forfeited until the expiration of thirty days after the mailing of such notice. There is no pretense that this notice was given, but on the contrary the argument of the defendant is to the effect that it ■did another thing which the- statute makes equivalent thereto. As to that the provision is “ that a notice stating when the premium will fall due, and that if not paid, the policy, and all payments thereon, will become forfeited .and void, served in the manner above stated,” at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the notice before provided for. That such notice had been

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given was a fact to be established by the defendant before its defense could be maintained, and whether it was so-established is the only question on this appeal.

The defendant relies upon a paper found after the death of the insured among his effects, and reading as follows:

Office of the ) Northwestern Mutual Life Insurance Co., i Milwaukee, Wis., November 1, 1882. }

George F. Phelan, 37 Barclay street.

The 4 qr. premium of $17.40 on your policy, No. 102,320' falls due at the office of the agent of this company in New York city, N. Y., before noon on the 31st day of December, ÍS82.

The conditions of your policy are that payment must be made on or before the day the premium is due, and members neglecting so to pay are carrying their own risk Agents have no right to waive forfeitures.

.Please present this notice at time of payment.

Yours respectfully,

J. W. SKINNER,

H. M. Munsell, Gen’l Agent, Secretary

Northwestern Mutual Life Ins. Co.,

160 Fulton street,

Office, corner Broadway, New York city.

Prompt payment is necessary to keep your policy in forces

No proof was given of compliance with the statutory provision in regard to the mailing of the notice, but the argument of the respondent is that the regularity of its proceedings in those respects is to be inferred from the fact that the notice was found among the papers of the deceased. The evidence was insufficient for that deduction. It appears that the residence of the deceased at the time the notice should have given, was 45 Warren street, New York, that the company had been apprised of that fact and had so entered it upon their books. Moreover, the agent of the•• defendant testified that “the post-office address of Phelan appeared upon the books to be as above-stated.” The notice produced was not so addressed. It was addressed to-him at 37 Barclay street.

It may be presumed that it reached that place in due-course after it was mailed. But when was it mailed? There-is no evidence as to that. The date is of no importance,, and is evidence of no statutory fact. Within the cases-cited by the respondent, it might, in a proper case, be presumed that its date represented the day it was prepared or written; but nothing more. Certainly, it cannot- be considered as just ground for inferring the wholly distinct and vital fact, that it was put in the mail on that day; nor that the envelope was .properly addressed. In the absence off other evidence the presumption is the address on the envelope corresponded to the address on the letter. Nor does the.

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"fact that the notice was in the possession of the assured on the 17th of January, 1883, afford any ground for inference "that he received it in due course of mail, nor that it was vserved upon him or received by him at any day earlier than January seventeenth.

We are also of opinion that the notice does not in its iterms conform to the statute. Many ignorant and unlearned ■people seek to avail themselves of the advantages proposed by these companies. The statute is designed for the protection of all classes, and the language it prescribes for notice is intelligible to all. To say that in a declared event, “ a policy will become forfeited and void,” conveys a meaning easily to be comprehended. To refer to the policy and its conditions, and say that “ members neglecting so to pay ” ■are carrying their own risk, is quite another thing; and while it may be comprehensible to those versed in the language of insurers and. accustomed to their phraseology, it is not the language of the statute, and does not embody the notice which the statute requires. The principle upon which -our decision in the recent case of Carter v. Brooklyn Life Ins. Co., 110 N. Y., 15 , vests, applies and requires that the .appeal should succeed.

The judgment of the court below should, therefore, be Teversed, and a new trial granted, with costs to abide the •event.

All concur, Ruger, Ch. J., in result, and Peckham and Gray, JJ., on first ground stated in opinion. ■