Majority
p. 406MARY MARSHALL, Appellant, v. THE WOMEN’S MUTUAL INSURANCE AND ACCIDENT COMPANY OF AMERICA, Respondent. Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ. Decided December 1, 1890.
Headnote
Life Insurance.—Forfeiture, waiver of,The life of Charles Marshall, the plaintiff’s husband, was insured by defendant, but the policy was forfeited for non-payment of arrears, and plaintiff sought a renewal and reinstatement. At the time of her application Charles Marshall was lying sick in the hospital with the disease of which he subsequently died. Plaintiff concealed the fact of his illness from defendant.
Held, that such concealment avoided whatever was done towards reinstatement or renewal. Upon the whole case there was not sufficient evidence upon which the jury could have found that the defendant waived the forfeiture clause.
Appeal from judgment entered upon a dismissal of the complaint at the trial, and from an order denying plaintiff’s motion for a new trial on the minutes.
Charles A. Lovett, attorney, and Abel Crook of counsel, for appellant.
p. 407
John A. Kamping, for respondent.
This action was brought on a certificate of membership. The evidence is uncontradicted that, when the plaintiff took certain steps to have Charles Marshall, whose life had been insured, reinstated, the said Marshall was lying sick in the hospital with the disease from which he subsequently died. That fact was concealed .from the defendant. Such concealment avoided whatever was done towards a reinstatement. Upon the whole case there was not sufficient evidenc upon which the jury could have found that the defendant waived the forfeiture' clause.
The complaint was properly dismissed, and the judgment and order should be affirmed, with costs.
Sedgwick, Ch. J., and O’Gorman, J., concurred.