Ramsey v. Travelers' Protective Ass'n of America , 147 Wis. 405 ( 1911 )

Maeshaul, J.

The first question presented on the appeal is this: Is the positive provision of an insurance contract to the effect that failure to make prompt payment to the assurer at the precise time specified therein shall operate as an ex-tinguishment of the risk till reinstatement in the manner provided therein, subject to constructive waiver by conduct of the company, inconsistent with nonexistence of the contract ? That is ruled in the affirmative by the following adjudications of this court: Bannister v. Patty’s Ex’rs, 35 Wis. 215; Alexander v. Continental Ins. Co. 67 Wis. 422, 30 N. W. 727; Jackson v. Northwestern Mut. R. Asso. 78 Wis. 463, 472, 47 N. W. 733; Reisz v. Supreme Council A. L. of H. 103 Wis. 427, 79 N. W. 430; Knoebel v. North Am. Acc. Ins. Co. 135 Wis. 424, 115 N. W. 1094; Seidel v. Equitable L. A. Soc. 138 Wis. 66, 119 N. W. 818.

The general rule evolved from the general trend of authorities in this state and elsewhere is this: Where the conduct of an insurance company with reference to strict observance on the part of the assured of the agreement as to payment of dues, or payment in the particular manner stipulated, is such as, naturally to, and that it in fact does, cause the assured to believe that such performance will -not he insisted upon, hut that variances therefrom, within the limitations suggested by such conduct, will be regarded by the company as sufficient performance to preserve the integrity of the agreement, — it will he conclusively presumed that the minds of the parties met upon that basis, displacing, to that extent, the letter of the contract; this upon the equitable doctrine of estoppel in pais. The facts of this case are well within that principle, as illustrated in the cases cited.

It is suggested that the contract indicates, clearly, that it was framed to meet the stated rule in favor of appellant, in that it manifestly contemplates that, while such rule may operate to save the contract from the time the overdue payment shall have been in fact made, the forfeiture is left operative in the interim; in that it provides, in case of a default in seasonably making payment being lifted “within thirty days,” the assured “may be reinstated and receive a new card of membership, but he shall receive no insurance benefits of any kind under his benefit certificate that may have accrued between the date of such default and the date of his reinstatement,” etc. We observe that, strictly speaking, such language does not create an absolute right of reinstatement. It contemplates that the company may use its discretion as to whether to reinstate the delinquent or not, and that the mere circumstance of a Reinstatement will not have a retroactive effect. It suggests the doing of an act, to wit: a reinstatement, evidenced by, to all intents and purposes, an original certificate of membership, called a membership card; evidently something other than the ordinary receipt for a periodical payment. Ho such card was issued to respondent, but on the contrary, the formal receipt, as if no lapse of the insurance risk had occurred, was given, pretty conclusively showing, affirmatively, waiver of that clause of the contract. So instead of the particular clause operating to displace the es-toppel in pais, under the rule mentioned, it and the manifest waiver by sending the receipt, instead of the evidence of a favorable discretionary act of reinstatement, show that the intention of the company was to treat the contract as not having lapsed at all.

It is suggested that the plaintiff was not entitled to the benefit of the circumstance of waiver, to avoid the effect of the forfeiture clause, acting upon his conduct, because of his failure to plead such waiver. The infirmity of that is this: where there is no opportunity to plead an estoppel or waiver, there is no necessity therefor. Waiver was not a part of plaintiff’s cause of action, but forfeiture, if there were one, was a defense. It was so pleaded and not in such circumstances as to call for a second pleading on the part of plaintiff.

By the Court. — The judgment is affirmed.

Timlih, J., dissents.