378 HOME MUTUAL LIFE ASS 'N v SMiAGERTY. [168 HOME MUTUAL LIFE ASSOCIATION V. SWAGERTY. , . Opinion delivered March 30, 1925- bisuRANCE—BENEFIT INSURANCE--FORFEITURE.—Where the holder of two benefit certificates failed to pay' or to offer to pay the • regular monthly assessments for two years. before her death, after her application for reinstatement of one ,of , the certificates was refused and her check covering both assessments was returned, she will be held to, have abandoned the certificatee, though no subsequent notice of assessments was given to her, .and no actual notice of forfeiture of the . other certificate. Appeal from Washington Circuit Court; W. A. Dick-son, Judge; reversed. Nein Bohlinger, for appellant.
AfiK.] I-TOME MUTUAL LIFE ASS . 'N v. SWAGERTt. 379 Walker ce Walker, for appellee: . McCurambH, C. J. Appellant is a mutual iniurance Company * , doing business on , What is termed the circle plan, whereby each member is 'placed in a group or circle, and When'a death occur's in a circule . an assessment is issued on all the remaining meMbers, and the beneficiary receives the amount raised by the last preceding assess-hient, after deducting the cost of Collection. The maxi: mum 'amount Of each policy is $1,000. • Ellen Swagerty, the mother of appellee, became a member of the association, and was the holder of two Certificates, one in Group No. 1 and the . other in GrouP No: '3, appellee 'being the beneficiary in . each certificate. One of the certificates' was issued on January , 30, •1915, and the other on:July 29, 1915: Assessments were paid as late as March '23, 1921, but, according to testimony addUced by appellant, the January assessinent was•net paid. 'On April 25, 1921, Mrs. Swagerty, the holder of the certificates,'sent in a check for three dollars to cover the assessments' for the month of April, but on April 30, 1921; appellant returned the check with a . notice to Mrs. Swagerty that the certificate in Group 3 had lapsed , On 'account of' failure to . pay the January assessment It was suggested to her that she should 'apply for reinstatement, and blanks for that purpose were sent to her, ivhich -Were 'filled out and signed and returned to the cempany, but she was later notified of the rejection of her application. -No payments were made thereafter of assessments on either of the certificates, and Mrs. Swagerty died . May 30, 1923. ' Appellee is the beneficiary in eacb of the certificates, anclinstituted this action praying for the recover y of the maximum amount of $1,000, on each certificate. There was a trial before a jury, and there was a:verdict' in appellee's favor 'for the sura of $613.25 to cover the amount which the testimony tended to show was the aggregate of the last preceding assessMent in each of the groups, less the cost of 'collection. The contention of appellant is that both policies lapsed by reason of nonpayment- of ' assessments. The
380 HOME MIJTUAL LIFE ASS'N v. SW AGEATy . [168 theory of appellee is that.the assured paid all of the assessments of which . she: reCeiyed actual notice and that there was no lapse of the policies by reason of failing to pay assessments of which no notice was sent out. , The're is really no . dispute in the testimony, and the . only cluestion. is . whether or not the certificates were forfeited by failure to.pay,the premium. :It is undisputed that the assured was notified of the lapse of one of the certificates, that she applied for rein:. statement , and was xejected, and thereafter paid no assessments nor offered to.pay any. Two years elapsed before the death.of the assured, and it is perfectly clear that.there was a forfeiture of this particular,certificate. .We.are , of,the opinion also that there was a forfeit-; re of the .other certificate by reason : of complete abandonment• of the' policy, notwithstanding the fact that there was no actual notice of a forfeiture. The check whickl was returned by appellant uncollected on April 30,.1921,,was sent to cover the assessments on both of the: certificates. ,The assured, knew that the check was returned, and:is bound to have known that there were other : succeeding: assessments.. The testimony .shows that:there werc.regular monthly assessments, and, even though notice was:provided for, the assured could not hold Q4 to a membership„indefinitely without contributing to the benefitjunds: There is no escape: from the conclusion .that the, 'assured- treated her, membership in both certificates as .having been lapsed, and that she corn-pletely,, abandoned.- both. certificates. . Appellant's only source of. reyenue was ,the collection of' assessments on the-death of its members,• and, as:before stated, a member could -not ignore the requirements and for a long lap se of time continuously ignore the obligation to contribute to the,fun4 of the-association by paying assessments. This- constituted.an -abandonment of the policy, and. th ere • can be no -recovery. The, iudgment is ;therefore reversed, and, as the ca:I ls e is fully develo ped, judg ment will be entered here ;I) Yavor -of. Appellant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.