Guetzkow v. Michigan Mutual Life Insurance

81 N.W. 652, 105 Wis. 448, 1900 Wisc. LEXIS 124

• Court: Wisconsin Supreme Court
• Decided: February 2, 1900
• Status: Published

Opinion

Dodge, J.

The question presented is whether there was-any evidence to go to the jury to establish a forfeiture of the policy sued on. No such condition resulted from default in the payment of the extension note of $55, whether we hold the extension of that note on November 12 effective or not; for by the terms of the policy the only effect of such default was to suspend the 'right of recovery for any loss occurring pending the default. The insured had the-right to pay such extension note at any time after it was due, and before loss. ■ He tendered such payment on the 25th of November, and in fact made such payment on th& 13th day of January, and before his death.

But it is contended that the failure to pay the annual premium on December 14 terminated the policy. Doubtless-such failure would accomplish that result, unless it be excused. Prior to that time the company had insisted that the insurance was terminated, and could not be revived except by furnishing a health certificate, which confessedly the insured was unable to do. If the position of the company was right, the tender of the annual premium at its maturity on December 14 would have been utterly futile. The same reasons which led the company to refuse the payment of the $55 would also lead it to .refuse the premium, as in fact it did when tendered. The insured could no more furnish a health certificate on December 14 than on November 25. The rule of law is maintained with great unanimity that one party cannot predicate a forfeiture upon an omission by the other which his own conduct has helped to bring about; that the declaration that a policy of insurance is already forfeited will constitute a sufficient justification for the omission to tender subsequently accruing premiums or instalments, upon the ground that the assured is justified in believing that no tender would be accepted, and the formality is therefore unnecessary; that the law will not require the doing of a vain thing. 2 Joyce, Ins. § 1123; Shaw v. Republic L. Ins. Co. 69 N. Y. 286; Girard L. Ins. Co. v. Mut. L. Ins. Co. 86 Pa. St. 236; Nat. Mut. Ins. Co. v. Home Ben. Soc. 181 Pa. St. 448. We are satisfied that the defendant’s conduct justified the insured in believing that the annual premium would not be accepted on December 14 without a health certificate, and, within the rule of law above stated, he was therefore excused from making that tender, and is in precisely the same situation as if it had been made; from which results the conclusion that no forfeiture of the policy had taken place, but that it was in full force at the time of his death. No other defense being tendered, and there being being no conflict in the evidence, the court below was justified in directing the jury to render a verdict for the plaintiff.

The foregoing is the only error urged upon us by argument, although seventeen are assigned. As frequently stated, this court will not ordinarily examine assignments of error which the appellant does not deem worthy of argument either orally or in his brief.

By the Court.— Judgment affirmed.