Northey v. Bankers' Life Ass'n

Belcher, C. On July 29,1892, a certificate of membership in the defendant corporation was issued to Frank T. Northey, providing that in the event of his death, during his membership, his wife, Charlotte Northey, who was named in the certificate as beneficiary, should receive the sum of two thousand dollats, and the return of a portion of the guarantee fund, amounting to thirty-one dollars.

The certificate also provided that “ upon the failure of the above-named member to make any payment due from him to the association at its maturity, in January, April, July, or October, of each year, his guarantee deposit shall be forfeited, and his membership shall thereupon cease.”

Certain payments became due from Northey to the association in the months of July and October, 1892, and January, 1893, and were made at their respective dates of maturity in said months. Upon or about April 1, 1893, Northey received from the defendant a written notice that an assessment of three dollars and ten cents had been levied against him, and that the said sum must be paid during the month of April, 1893. Upon April 28th Northey was shot, and mortally wounded, and upon May 1st he died. The last day of April fell upon a holiday, Sunday, and this last assessment was never paid.

Subsequent to the death of Northey the plaintiff, who was the payee named in the certificate, furnished the defendant due notice and proof of his death, and otherwise performed all the conditions of the certificate required of her, but the defendant refused to pay to her the said sum of two thousand and thirty-one dollars, or any part thereof.

Thereafter the plaintiff commenced this action, and, [550]in an amended complaint, set forth, the facts as above, stated, and demanded judgment against the defendant for the sum of two thousand and thirty-one dollars, with interest and costs. The defendant demurred to the complaint upon the ground that it appeared therefrom that the assessment maturing and payable during the month of April, 1893, was not paid during said month, or at all, and that the nonpayment of the same at its maturity caused the membership of Northey in the association to cease before his death. The court sustained the demurrer and gave judgment for the defendant, from which the plaintiff appeals.

It will be observed that the only provision in the certificate as to the forfeiture of membership is that upon the failure of the assured “ to make any payment due from him to the association at its maturity in January, April, July, or October, of each year,” his membership shall cease. This in no way fixes the day or date of maturity. It might be the last or any other day of the month. And, as against the insurer, in the absence of anything more definite, it would be presumed to be the last day of the month, the general rule being that, “ where the language of a policy may be understood in more senses than one, it is to be construed most strongly against the insurer, because he frames it, and is supposed to make it as potent as possible in his own favor.” (Rankin v. Amazon Ins. Co., 89 Cal. 209; 23 Am. St. Rep. 460; Thompson v. Phenix Ins. Co., 136 U. S. 287; Civ. Code sec. 1654.)