Mills v. Home Benefit Life Ass'n

Garoutte, J. The facts of this case are fully stated in Murray v. Home Benefit Life Assn., 90 Cal. 402; 25 Am. St. Rep. 133. Upon that appeal, by the decision of the court, the cause was remanded for a new trial. The respondent has since married, a new trial has been had, and the case is again before us upon the merits. In this action a recovery is sought upon a policy or certificate of insurance, issued by appellant upon the life of respondent’s husband. Prior to his death he suffered default in the payment of two certain assessments, and such default is now relied upon to defeat the right of recovery. Respondent insists that the forfeiture incurred by reason of the aforesaid defaults was waived, owing to an extension of time being granted to make the payments, and this court’s disposition of the case is solely dependent upon the conclusion to be arrived at from an examination of this question of forfeiture and [234]waiver. The facts in the main are similar to the facts presented at the previous trial, and to a great extent the law of the case has been established by the prior decision of this court. The waiver of the forfeiture was based upon a letter written to the insured by the company, notifying him that a certain assessment would be due upon a named day in the future, and in effect requesting a remittance thereof on or before that time; and in this regard, upon the previous appeal, the court declared the law as follows: “ But the letter notifying the insured that an assesssment would be due and payable on October 1st, and in substance requesting payment, of itself constituted a waiver of the previous default, and must be construed as an unconditional offer to accept payment of that assessment on or before the date named. It was, in effect, an assertion that the certificate was still in force, and, notwithstanding previous defaults known to defendant, would remain in force until the date therein named for such payment. As already stated, this notice was sent after full knowledge by defendant of the nonpayment of the previous assessments; and if it was the intention to make the acceptance of the amount to become due on this assessment conditional upon the payment of such prior assessments, immediately upon the receipt of the other letter, it should have so stated. But not having done so, we think its legal effect was to waive the previous forfeiture, and continue the certificate in force until October 1st, and, this being so, the insured had the right, at any time after receiving it, and before October 1st, to make payment of all assessments accruing prior thereto, and necessary to be made in order to give the certificate continued existence.”