Opinion
March Term, 1901.
Watson B. Berry and V.P. Abbott, for the appellant.
George H. Bowers, for the respondent.
Three objections are urged by the defendant to the plaintiff's recovery: First, that the action was not begun in time. Second, that the plaintiff was not entitled to recover because he was not in receipt of any weekly salary. Third, that the certificate was not in life at the date of the accident.
The first objection is based upon a clause in the certificate providing that no suit shall be brought unless brought within one year from the date of the alleged accident. The accident occurred upon October 25, 1897. The action was brought upon January 7, 1899. This objection, therefore, must prevail unless there be in the certificate some provision modifying or controlling the clause stated. The provision for indemnity provides for twenty five dollars a week for fifty-two weeks. Another clause in the certificate provides that legal proceedings to enforce payment thereunder shall not be brought until the expiration of three months after receipt by the association of acceptable and satisfactory proofs of loss. Proofs of loss clearly cannot be furnished until the disability has ceased and until fifty-two weeks have passed, if it shall continue for that time. If the disability continue then for fifty-two weeks and the proofs are then submitted, the action cannot be brought within fifteen months from the happening of the accident. As this contingency is contemplated by the contract of insurance, the year limitation within which the action can be commenced must refer only to those cases in which the disability has ceased within sufficient time so that the proofs of loss may be furnished and a reasonable time remain after the three months have passed before the expiration of the year. If, however, the disability shall continue so long that the proofs of loss cannot be furnished and the three months expire before the expiration of the year, the law will still give to the plaintiff a reasonable time after the expiration of the three months from the furnishing of the proofs of loss within which to commence the action. The three months in the case at bar expired upon the nineteenth day of December, and upon the fifth of January the summons was issued and upon the seventh served. We think, under the circumstances of this case, that the delay in the commencement of the action was not unreasonable and that the plaintiff complied with the fair intendment of the contract.
The defendant's second objection is based upon the clause in the certificate which provides that "in no case shall the weekly indemnity exceed the weekly salary of the insured." There is another provision in the policy, however, which reads: "This certificate does not cover accidents or injuries to persons who have ceased to follow any regular occupation, except such persons as are insured as preferred." This plaintiff was insured in the preferred class as a retired farmer. That was stated to be his only occupation. It is true that he afterwards stated in his application that the weekly indemnity named did not exceed his salary. That was clearly an inadvertence, however, and in no way misled the defendant. The nature of the contract contemplates the insurance of those who do not receive a weekly salary. That provision in the contract which limits the recovery to the amount of the weekly salary must then be deemed to refer only to those persons insured who are receiving a weekly salary and does not limit the right of recovery of one who is insured without occupation in the preferred class.
The third objection urged by the defendant is the one upon which the learned trial justice seems to have based his order dismissing the plaintiff's complaint. The agent Coolidge had no office for the transaction of his business. The premiums had been theretofore paid to him as he was found upon the streets. We have no doubt of his power to agree with the plaintiff that the moneys for the payment of the premiums should be deposited at the bank for him and that he would get them at the bank. Upon the first of October, when the premium became due, the moneys were in fact upon deposit, subject to the order of the company, in strict accordance with the agreement. The plaintiff's performance then of his part of the agreement was the full equivalent of a legal tender of those moneys. It was in fact a legal tender by reason of the agreement that the moneys should be paid in that manner. This tender was not at that time rejected by the agent, McComber. It was not rejected until the letter of November eighth, declaring forfeited the certificate. Upon the twenty-fifth day of October, then, when this accident occurred, this certificate was in full force, the plaintiff having performed all of his covenants thereunder. A cause of action then arose in the plaintiff's favor for the weekly indemnity, and is still his, unless forfeited or released by some subsequent act.
The defendant claims such forfeiture in the withdrawal by plaintiff of his deposit in the bank upon December eighth. It is first urged that, if a tender, it should have been kept good. In the case of Te Bow v. Washington Life Ins. Co. ( 59 App. Div. 310), we have held that where a company wrongfully declared a policy forfeited, an action might be brought thereon without even a tender of the premium. This holding seemed to us to rest upon abundant authority cited in the opinion therein. The letter of November eighth to the plaintiff's sister constituted a wrongful declaration of forfeiture on defendant's behalf. If after a wrongful declaration of forfeiture a party is not bound to make a tender in order to maintain an action upon the policy, by parity of reasoning a tender lawfully made in due season, after rejection, need not be kept good, but the premium admitted to be due may be deducted in the judgment from the amount of the policy. ( Shaw v. Republic Life Ins. Co., 69 N.Y. 286, 294; Whitehead v. New York Life Ins. Co., 102 id. 143, 157.)
It is further urged in defendant's behalf that after notice of the claimed forfeiture by the company, the withdrawal of plaintiff's deposit from the bank on December eighth, and his long silence thereafter, constituted an acquiescence in the claimed forfeiture which bars the plaintiff's right of action. If, however, we are right in our conclusion that the plaintiff was not in default upon the twenty-fifth of October, when the accident happened, he had a cause of action which could only be released upon consideration. An intended acquiescence even on the part of the plaintiff in the defendant's claim of forfeiture would be ineffectual as without consideration. The law required from him no protest to secure his right of action then vested. With the right then to withdraw his deposit from the bank as a rejected tender, we are unable to find any act of the plaintiff which has in any way released or forfeited his right of action. The complaint was, we think, improperly dismissed.
All concurred, except PARKER, P.J., and CHASE, J., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide event.