James v. Colonial Mutual Life Assn.

BARNARD, P. J.

The defendant is a mutual benefit and life association, organized and operating under the provisions of sections 452a to 453, inclusive, of the Civil Code. On May 26, 1931, the defendant issued two certificates of membership and insurance to one Viter Chappel in the face amount of $1500 each, naming this plaintiff as beneficiary. Each certificate or policy called for the payment of $5 as and for the first semiannual dues with semiannual dues of $2.50 payable each six months thereafter, and further provided for an assessment of $1 on each member upon notice of the death of another policyholder in the association. Chappel paid all dues and assessments on these certificates until an assessment of $2 was levied on June 15, 1932, of which he had notice. This assessment was not paid by July 15, 1932, at which time the certificates became lapsed and forfeited according to their terms. On July 19, 1932, Chappel paid the $2 and submitted to the association a written application for reinstatement for these certificates, and the association accepted the payment and reinstated and renewed the certificates. Chappel died on September 29, 1932, and due and timely proof of death was made but- the defendant refused to pay the amount of the certificates although it tendered to the plaintiff the amount which had been paid in for dues and assessments.

In this action which followed, the court found that the assessment levied on June 15, 1932, was not paid on or before July 15, 1932, that the same was paid on July 19, 1932, that the payment was accompanied by an application for reinstatement, that these were received and accepted by the defendant on July 19, 1932, and then found “that on the 19th day of July, 1932, at which time the said certificates of membership and insurance were reissued and reinstated by defendant, the said Viter Chappel was more than fifty-five years of age”. As a conclusion of law, the court found that these certificates became lapsed and forfeited on July 15, 1932, and “that the attempted renewal or reinstatement thereof was

[750]

illegal and void as a contravention of Section 452e of the Civil Code of the State of California, for the reason that the said Viter Chappel was then over the age of fifty-five years, and more than fifty-five years of age”. Judgment was entered that the plaintiff take nothing except a return of the dues and assessments paid as proffered in the answer. From this judgment the plaintiff has appealed.