Opinion
No. 3420.
Decided June 25, 1943.
In assumpsit by the beneficiary of life insurance certificates of a fraternal benefit society, whose bylaws provided for suspension after a thirty day period after non-payment of an assessment, recovery was barred because after suspension the member had not availed himself of the privilege of reinstatement exercisable within "ninety days following his last paid month" or the further privilege of being reinstated upon "a new medical examination" within six months after ceasing to be a member. Acceptance on two occasions of dues over three months in arrears did not constitute a waiver of the obligations of the member incident to his obtaining reinstatement within six months by passing a new medical examination, there being no evidence that in other cases such requirement was waived or that the association had knowledge of the member's serious illness.
ASSUMPSIT, to recover the face value of two life insurance certificates issued in June and October, 1936, to Roland Beliveau, and made payable to the plaintiff as beneficiary. The member was taken sick November 17, 1938 and died December 6, 1938. November 21, 1938 his brother paid the local treasurer $33.90 to cover six months premiums due from March to August, 1938, and November 30, paid $16.95 to cover three months premiums due from September to November, 1938. The defendant is a fraternal benefit society as defined in R. L., c. 333, and its policies provide that the certificate, the charter, and the constitution and laws of the association constitute the agreement between the society and its members, in accordance with R. L., c. 333, s. 20.
Defendant's pertinent by-laws relating to the case are that "assessments shall be due and payable in advance the first of each month," with a thirty day period of grace to pay same before suspension or loss of rights of membership take effect. Failure to pay within the period causes suspension ipso facto and loss of all rights to the benefits of the association. There is a saving clause however to the effect that "a member suspended for the non-payment of his assessments . . . may be reinstated upon payment of arrears and upon whatever evidence of good health required by the High Court during a period of ninety days following his last paid month. After ninety days of non-payment the member shall ipso facto cease to be a member of the Association and his certificate shall become null and void, except as otherwise provided herein. Said member cannot be reinstated in the exercise of his rights without passing a new medical examination to the satisfaction of the Physician General and paying all dues . . . etc., provided however, that such reinstatement shall be effected within the period of six months after he has ceased to be a member."
The case is transferred without ruling by Johnston, J., on an agreed statement of facts.
Sullivan Dolan and Nathan Peikes, of Massachusetts (Mr. Dolan orally), for the plaintiff.
Ernest R. D'Amours (by brief and orally), for the defendant.
The record of payments covering the whole period of membership of the decedent shows that twice the premiums stood paid in advance, seven times paid currently, eight times one month, four times two months, and twice three months in arrears. All of this was prior to May 6, 1938, when he paid one month's assessment, which still left him three months in arrears. From June, 1938 on, the treasurer's record has the entry "lapsed" opposite each month, until we find the payments made November 21 and 30, 1938. It is to be noted that these payments were not received by the High Court treasurer until December 5, 1938, the day before the member died, and the local agent had no apparent authority to waive. Upon being advised of his death, December 14, 1938, the treasurer returned a check for these two last payments, with direction that it be given to the party who had paid the money. Tender was made, on two different occasions, but was refused.
The plaintiff claims that the defendant, by accepting payments of dues three months in arrears on two different occasions has waived the provisions of its by-laws referring to suspension and lapsing, and is now estopped to deny the waiver.
The claim fails. Acceptance of arrears may waive the provisions of payment during a period established by a course of dealing which may induce a reasonable belief on the part of the assured that the condition has been waived in fact, Daley v. Insurance Co., 81 N.H. 502, 503, and cases cited. But this does not constitute a waiver of the condition of forfeiture for a longer period of arrears than that previously granted "and could induce no reasonable belief that the forfeiture was thereby postponed beyond the extension." Ib., p. 503. It is clear that acceptance of payment of arrears on two occasions a few days after the ninety day period of grace allowed by the by-laws could not fairly induce the assured into believing that the period of grace would be extended six months beyond that period. "A waiver by either words or conduct does not extend beyond their fair meaning," Laconia v. Belknap County, 86 N.H. 565, 567 and "a waiver up to a certain mark waives nothing beyond it," Daley v. Insurance Co., supra, p. 504. "The doctrine of waiver as asserted against Insurance Companies, is only another name for the doctrine of estoppel." Appleton v. Insurance Co., 59 N.H. 541, 545; Daley v. Insurance Co., supra; Duval v. Company, 82 N.H. 543, 547 and cases cited; Doolan v. Insurance Co., 85 N.H. 531, 534.
It must be observed that according to the defendant's by-laws a member who fails to pay his premiums when due is "suspended" for "ninety days following his last paid month." He can be reinstated during that period by paying his dues and submitting whatever evidence of good health the High Court may require. But "after ninety days of nonpayment the member shall ipso facto cease to be a member of the Association and his certificate shall become null and void." He may be reinstated only by "passing a new medical examination to the satisfaction of the Physician General and paying all dues, assessments, fines, etc., with which he is chargeable," and this "within the period of six months after he has ceased to be a member." The case does not state whether a certificate of good health was required and furnished on the two occasions when the member paid arrears of three months. It is immaterial as far as the present consideration of the case need go. There is nothing in the case to warrant a finding that the society ever waived the new physical examination necessary for reinstatement during the six months period after the member ceased to be a member. He was lapsed in June, 1938, for non-payment of premiums due March, April and May, 1938, and was continued entered as "lapsed" for the four succeeding months. It is to be assumed this was for the purpose of keeping his name on the books as one entitled to reinstatement upon compliance with the requirements of the by-laws, and that November was the last month during which he could avail himself of the provisions relating to reinstatement. He failed in that he did not submit to an examination. It was conceded apparently that he could not have done so since he was sick with pulmonary tuberculosis. His physical condition, on November 21 when six months dues were paid and on November 30 when the other three months dues were paid was such that it precluded compliance with the requirements of a new medical examination to the satisfaction of the physician general. (Daley v. Insurance Co., supra, p. 503.) In the absence of evidence of waiver of such a requirement in any case, and moreover in the absence of knowledge on the part of the society that the member was seriously ill, it cannot be said that the requirement was waived and that the society is now estopped to deny the waiver. Doolan v. Insurance Co., supra.
Judgment for the defendant.
All concurred.