Fitzpatrick v. Mutual & Benevolent Life Insurance

Supreme Court of Louisiana

Fitzpatrick v. Mutual & Benevolent Life Insurance

25 La. Ann. 443

CourtSupreme Court of Louisiana

DecidedMay 15, 1873

DocketNo. 4087

StatusPublished

This text of 25 La. Ann. 443 (Fitzpatrick v. Mutual & Benevolent Life Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzpatrick v. Mutual & Benevolent Life Insurance, 25 La. Ann. 443 (La. 1873).

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Opinions

Taliaferro, J.

The plaintiff sues as the holder and beneficiary under a policy issued by the defendants upon the life of her father, P. II. Cummings, who died first of December, 1870.

The defense is, that the policy, and all the payments made on it, were forfeited by the non-payment by the deceased of several assessments due upon the death of members of the Association. There was judgment as of non-suit against the plaintiff, and she has appealed;

But one question is presented — that of forfeiture. The notices to members of the Association to pay assessments as they arise, are made to persons residing in New Orleans, by publication in a daily newspaper in the English, German and French languages for five consecutive days. Notices of several assessments due by the plaintiff’s father, it seems, were given in this manner; and it also appears that payment was not made within the time prescribed. But on the part of the •plaintiff, it is contended that the mode of giving notice had been waived and modified by the custom of making personal service of notices partly in writing and partly in .print, and by changing the mode and manner of publication ; that Mr. Cummings was not, in this .mode, notified of the calls made in the case in which the company .allege the forfeiture arose ; and it is shown that, in previous instances these written and printed instruments were served upon him. We incline to the opinion of the judge a quo, that these instruments, relied upon by the plaintiff, presented before payment, are, in reality, only copies of the newspaper notices included in a receipt prepared before[444]*444hand, but delivered only on payment of the assessment. Besides, it is shown that, within the time allotted for payment, a demand was-made on Cummings, and he refused to make payment, declaring that it was a swindling concern, and that he would have no more to do. with it.

Judgment affirmed.

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Taliaferro, J.

The plaintiff sues as the holder and beneficiary under a policy issued by the defendants upon the life of her father, P. II. Cummings, who died first of December, 1870.

The defense is, that the policy, and all the payments made on it, were forfeited by the non-payment by the deceased of several assessments due upon the death of members of the Association. There was judgment as of non-suit against the plaintiff, and she has appealed;

But one question is presented — that of forfeiture. The notices to members of the Association to pay assessments as they arise, are made to persons residing in New Orleans, by publication in a daily newspaper in the English, German and French languages for five consecutive days. Notices of several assessments due by the plaintiff’s father, it seems, were given in this manner; and it also appears that payment was not made within the time prescribed. But on the part of the •plaintiff, it is contended that the mode of giving notice had been waived and modified by the custom of making personal service of notices partly in writing and partly in .print, and by changing the mode and manner of publication ; that Mr. Cummings was not, in this .mode, notified of the calls made in the case in which the company .allege the forfeiture arose ; and it is shown that, in previous instances these written and printed instruments were served upon him. We incline to the opinion of the judge a quo, that these instruments, relied upon by the plaintiff, presented before payment, are, in reality, only copies of the newspaper notices included in a receipt prepared before[444]*444hand, but delivered only on payment of the assessment. Besides, it is shown that, within the time allotted for payment, a demand was-made on Cummings, and he refused to make payment, declaring that it was a swindling concern, and that he would have no more to do. with it.

Judgment affirmed.

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25 La. Ann. 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzpatrick-v-mutual-benevolent-life-insurance-la-1873.