Gambar halaman

of the elder female fixes upon yon unoffending youth; she summons him to her side, and the investigation commences. Her first demand is for "the man who wrote out that," and as it is evident that nothing short of the production of the original will and its collation on the spot, with the transcript, will satisfy her doubts, we leave poor Jackson in her clutches, reflecting that after all a berth in the civil service may have its drawbacks. Never did we visit this well-hidden office without finding there a more or less numerous gathering of legacy hunters, but how they get there remains a mystery Other public offices lie open and conspicuous to the passer-by, and are never invaded by the profane feet of the laity. This one, huddled away down a pair of back stairs in an obscure corner of an inner quadrangle, seeks privacy in vain.

The plaintiff in error being under arrest and about to be tried for the offense of having written and sent through the post-office a threatening letter for the purpose of extorting money, and the court having been informed by the district attorney in writing that there was a probability that the prisoner was then insane, and thereby incapacitated to act for herself, and ought not, for that reason, to be then put upon her trial, and praying that an inquisition into her mental condition be then and there ordered and had by the court in a summary manner, either by a jury or otherwise, as to the said court might seem meet, as provided by Rev. Stat., § 4700, the court did then and there order an investigation as prayed for in said application; whereupon a jury was impaneled and sworn ceeded, and at the close thereof the jury, under the for the purpose, and the investigation thereupon pro

charge of the court, found and rendered a verdict that the prisoner was then insane. Thereupon the trial of the offense was, on motion of the district attorney, in

definitely postponed, and the court thereupon ordered that the prisoner be confined in one of the hospitals for the insane, as provided by law, to wit, the Milwaukee Insane Asylum at Wauwatosa, there to be held in the custody and care of the superintendent, as the law directed; and to be received, confined, and treated by such superintendent as other insane persons are kept and treated therein; and upon her recovery from such

pre-insanity to notify the sheriff thereof, and thereupon

And now, at last, for Westminster. We pass the Horse Guards with its glittering troopers, the less obtrusive Admiralty, and the splendid mass of the new Treasury, and crossing the grand old Hall, with its usual throng of applewomen, witnesses, lawyers and policemen, enter the Court of Exchequer, where Kelly, last of the chief barons, sides, patriarchal and garrulous. You will notice that the learned gentleman who happens to be addressing the court at the present moment occupies a little pen all to himself, instead of being mixed with the general throng of his compeers. He is Mr. Webster, the present "tubman" of the court, and by right of his mysterious title occupies his "tub." Have the Judicature Acts swept away

even this old custom?

Our object being to see the list for to-morrow, which is not yet ready, we have half an hour to spare, and where can we spend it better than in the Abbey, just across the street? In three minutes we epitomize many a great lawyer's career passing from Westminster Hall through St. Stephen's. into the Abbey, and con for the hundredth time the familiar inscriptions. A half hour quickly passes. Returning to the court we find the cause list ready, and resigning ourselves to the sulphurous discomfort of the underground railway we are soon back in the city, where the gas-lights gleam confusedly through the fast thickening fog. An hour's letter writing finishes the office day, and we make tracks homeward to resume with what spirit we can our study of Haynes' Equity."

[blocks in formation]

deliver her to him to be dealt with according to law. To review that order this writ of error is brought. David W. Small, for plaintiff in error.

W. C. Williams, district attorney, for defendant in


CASSODAY, J. Can such an order be reviewed by this court on writ of error? The learned counsel for the plaintiff in error has made no reference to the question, and no authorities have been cited upon it in behalf of the State. At common law, such writ could only be brought upon a final judgment, or an award in the nature of a final judgment. Finch v. Ranow, 1 Ld. Raym. 610; S. C., 3 Salk. 145; Rex v. Dublin, 1 Strange, 536; Jaques v. Cesar, 1 Saund, 101, note; Samuel v. Judin, 6 East, 336; Tyler v. Hamersly, 44 Coun. 409; 2 Burrill, Pr. 132; Hill v. Bloomer, 1 Pin. 283; Merril v.

Rollin, id. 411; Dean v. Williams, 2 id. 91; Wheeler v.
Scott, 3 Wis. 362; Paine v. Chase, 14 id. 653; Jenks v.
State, 16 id. 333; Eaton v. Gillett, id. 546; Crilley v.
State, 20 id. 244; 1 Archb. Crim. Pr. & Pl. 623, *199. A

writ of error does not lie to review an order. Paine
v. Chase, supra; Jenks v. State, supra; Eaton v. Gillett,
supra; Shannon v. State, 18 Wis. 604. It does not ex-
tend to a decree or judgment in an equity ease. Dela-
plaine v. Madison, 7 Wis. 406; Howes v. Buckingham,

13 id. 442; Costello v. Burch, 25 id. 477. Such was the writ which was preserved by the Constitution. Section 21, art. 1. The statute has not enlarged the functions of the writ. Delaplaine v. Madison, supra; Smith v. Thorp, 7 Wis. 514; Howes v. Buckingham, supra.

In fact, the statute expressly provides that writs of error in criminal cases may issue, and bills of exceptions may be served, noticed, and settled, in the manner and within the time provided by law in civil cases. Rev. Stat., § 4724. And in civil cases it provides that writs of error may issue to review final judgments in actions triable by jury, except actions for divorce. Id. § 3043.

It seems to follow that the order in question being made before any "final judgment" had been pronounced, cannot be reviewed upon this writ of error. The same is true for another reason, even if the order made upon this collateral issue be construed as in the nature of a final judgment. The statutory provision

that the writ " may issue to review final judgment in actions triable by jury," clearly meaus actions so triable as a matter of right. Sections 5, 7, art. 1. Since the constitutional right must remain inviolate," it cannot be taken away in any class of cases where it existed when the Constitution was adopted. Norva! v. Rice, 2 Wis. 29; Gaston v. Babcock, 6 id. 503; Stilwel v. Kellogg, 14 id. 461; Mead v. Walker, 17 id. 189; Con. Ins. Co. v. Cross, 18 id. 109; Dane Co. v. Dunning, 20 id. 210; Bennett v. State, 57 id. 69; S. C., 14 N. W. Rep. 912. It has been held in several of the States that this right of trial by jury does not extend to proceedings to commit infants to the industrial school or house of refuge. Ex parte Crouse, 4 Whart. 9; Prescott v. State, 19 Ohio St. 184; Ex parte Ah Peen, 51 Cal. 280; In re Ferrier, 103 Ill. 367. See Milwaukee 1. S. v. Milwaukee Co., 40 Wis. 328. Nor does it extend to the determination of the mere insanity of a party. Gaston v. Babcock, supra; Shroyer v. Richmond, 16 Ohio St. 455; Hagany v. Cohnen, 29 id. 82.

At common law, if a person, after committing a crime, became insane, he was not arraigned during his insanity, but was remitted to prisou until such incapacity was removed. The same was true when he became insane after his plea of not guilty and before trial. If however there was any doubt as to whether the party was insane, the question was usually tried in a summary way by a jury. 1 Hale P. C. 34, 35; 4 Bl. 24, 25; 1 Archb. Crim. Pr. & Pl. 22, 23; Com. v. Braley, 1 Mass. 103; Com. v. Hathaway, 13 id. 299; Freeman v. People, 4 Denio, 19, 20; The Queen v. Goode, 7 Adol. & E. 536. In such cases however it was in the discretion of the court whether to try the preliminary question of insanity by a jury, or to adopt some other mode. Id.

In The Queen v. Goode, supra, the attorney general prayed an inquest, which was immediately granted, and the investigation was proceeding in a summary manner, when Lord Denman, C. J., stopped the prosecution from calling further witnesses, and declared, in effect, that it was unnecessary to ask the prisoner whether he wished to cross-examine the witnesses, or to say or prove any thing for himself, and virtually charged the jury to return a verdict of insanity, which they did. Thereupon the prisoner was ordered into safe custody until the queen's pleasure should be


jury or otherwise, "as it deems most proper." Undoubtedly it may, in a proper case, make such inquisition by a medical commissioner or otherwise. The method of making inquisition is left to the discretion of the court. So it appears that a trial by jury of such preliminary and collateral issue was not a matter of strict right prior to the Constitution. "There are," said Sir Mathew Hale, "two sorts of trials of idiocy, madness, or lunacy; the first, in order to the commitment or custody of the person and his estate, which belongs to the king, either to his own use and benefit, as in case of idiocy; or to the use of the party, in case of accidental madness or lunacy; and in order hereunto there issues a writ or commission to the sheriff or escheator, or particular commissioners, both by their own inspection and by inquisition to inquire, and return their inquisition into chancery; and thereupon a grant or commitment of the party and his estate ensues; and in case the party or his friends find themselves injured by the finding him a lunatic or idiot, a special writ may issue to bring the party before the chancellor, or before the king, to be inspected." 1 Hale P. C. 33. Certainly the chancellor had jurisdiction to grant the writ or commission of lunacy. Lord Ely's case, 1 Ridg. Parl. Cas. 578; Ridgway v. Darwin, 8 Ves. Jr. 65; In re Monahan, 9 Ir. Eq. 253. It was issued as "the prerogative of the crown (Ex parte Barnsley, 3 Atk. 171), "the political father and guardian of all his subjects." Lord Ely's case, supra. Hence where the return to the commission was unsatisfactory to the chancellor, he would quash the same and issue a new commission. Ex parte Roberts, 3 Atk. 5; Ex parte Barnsley, supra; Ex parte Cranmer, 12 Ves. Jr. 445; Ex parte Atkinson, 1 Jac. 333; In re Holmes, 4 Russ. 182; In re Bruges, 1 Mylne & C. 278. "It is a practice by no means uncommon, in cases of lunacy," said Lord Eldon, "that when the lunatic cannot be removed to the jury, and it is inconvenient for the jury to go to the lunatic, one or two of the jury examine the lunatic, and report their observatious to the rest." Ex parte Smith, 1 Swanst. 7. The same cautious chancellor held that the issuing of the commission was in the discretion of the court. Ex parte Tomlinson, 1 Ves. & B. 57.

We are not called upon to determine whether a party who is aggrieved by being wrongfully found to be a lunatic has any remedy by way of traversing the inquisition, as formerly (Ex parte Wragg, 5 Ves. Jr. 450; id. 833; Sherwood v. Sanderson, 19 id. 280; In re Bridge, 6 Jur. 69), or by appeal or otherwise. It is enough to know that a writ of error will not lie.

From what has been said, and the fact that writs of error are only authorized to review final judgments in actions triable by jury as a matter of right, it follows that the writ of error was improvidently granted, aud is therefore dismissed.


Our statute has adopted substantially the same practice. It provides that when any person is indicted or informed against for any offense, if the court shall be informed in any manner that there is a probability that such accused person is, at the time of his trial, insane, and thereby incapacitated to act for himself, the court shall, in a summary manner, make inquisition thereof by a jury or otherwise, as it deems most proper; and if it shall be thereby determined that such accused person is so insane, his trial for such offense shall be postponed indefinitely, and the court shall thereupon order that he be confined in one of the INSURANCE-FORFEITURES-WHEN ENFORCED State hospitals for the insane, etc. Rev. Stat., § 4700. Here the proceedings were strictly in accordance with the statute. The validity of the statute is not questioned. By it, if not without it, the court was authorized, in a summary manner, to make inquisition of the then present insanity of the prisoner, by a jury or otherwise, as it deemed most proper. The inquisition had was only preliminary to the trial of the offense. It led no bearing upon the guilt of the prisoner In re J. B., 1 Mylne & C. 538. It was entirely collateral to the main trial, which was indefinitely postponed until the prisoner's sanity and capacity to act for herself on such trial should be restored. The statute certainly did not give a jury trial as a matter of right upon such collateral issue. It says "the court shall" make inquisition thereof in a summary manner, by

EWALD V. NORTHWESTERN MUT. LIFE Ins. Co.* The rule that forfeitures are not favored, and will not be judicially declared if the rights of the parties can be saved without, will not be enforced unless it can be done without violence to the contract of the parties.

A person who is assured by a life insurance company will be presumed to understand the various provisions for forfeiture contained in his policy, by which e may suffer loss through his own fault, and cannot complain of hardship occasioned by the forfeiture of his policy where he suffers voluntary default.

*8. C., 19 N. W. Rep. 513.

[blocks in formation]

E. G. Comstock, for respondent.

D. G. Hooker, for appellant.

ORTON, J. This suit is brought upon a policy of endowment insurance, issued by the company to the plaintiff, bearing date June 3, 1867, to recover fourtenths of the $1,000 of insurance and interest, on the ground of full payment of the cash premiums and of the interest on the premium notes for such years. After the first four years from the date of the policy the plaintiff failed to pay any more cash premiums, or to give any more premium notes, or to pay any more interest upon the premium notes given for such years, and the defendant company declared a forfeiture of the whole policy, and notified the plaintiff thereof.

The plaintiff claims (1) that by the terms of the policy he is entitled to four-tenths of the whole insurance, because he has fully paid the cash premiums and interest on the premium notes for such years, if he had entirely failed to give the premium notes and to pay the cash premiums and the interest on the premium notes which he gave for the first four years thereafter, during the life of the policy; and (2) that there were dividends of surplus, from year to year, due him from the company, sufficient to pay such in


The defendant contends (1) that by the terms of the policy it could be forfeited in toto by the company upon the failure of the assured to pay the interest in cash upon such premium notes at the end of each year during the time of the polley; and that (2) the policy should have such a construction, if possible, because absolutely necessary and essential to the continued business of the company in this department of insurance, and to any estimates of future resources, dividends or liabilities upon the basis of interest paid on all premium notes outstanding, and the anticipation thereof, as one of the certain and permanent resources of the company for such purposes.

The last consideration may reasonably affect the rule that forfeitures are not favored, and will not be judicially declared if the rights of the parties can be fully saved or secured without. Or the rule of forfeiture may be stated as in Hall v. Delaplaine, 5 Wis. 206, and Button v. Schroyer, id. 598; it will be mitigated or relieved against when it can be done without violence to the contract of the parties. The law in respect to forfeiture of contracts is really elementary, and is as claimed by the learned counsel of the respond. ent. See authorities cited in his brief. With the rules in respect to forfeitures established in those cases, and the ordinary rules of interpretation "to give the language its just sense, and to search for the precise meaning to give the contract the sense in which the promisor believed the other party to have accepted it, or in which he had reason to suppose it was understood by the promisee," and the practical interpretation of the contract, by the practice and conduct of the parties under it, in view, we shall endeavor to place the proper construction upon it. I will not incumber and confuse the question by quoting more of the language of the policy than absolutely necessary to its elucidation, or obscure it by redundancy.

The matter of difference between the parties has already been sufficiently stated, and I will first quote those clauses of the policy by reason of which the de

fendant claims it to have been completely forfeited and determined, and then the clauses by reason of which the plaintiff claims the policy to be valid to the extent of four-tenths of the whole amount of the insurance, as a paid-up policy for four years, and only forfeited as to the remainder: First. After stating the consideration of the annual premium note, the language in brackets is "the interest upon which must be paid annually, in cash, at the date of the maturity of the annual premium." Second. After stating the terms of such proportion of tenths, as the complete payment of the annual premiums at the time of the default, the language is: "But in order to secure such proportiou of the policy all premium notes must be taken up or the interest thereon be paid annually, in cash, on the date of the annual maturity of the premium, until the notes are cancelled by returns of the surplus, or the whole policy will be forfeited." This language has the effect as a condition (1) to the payment of any portion of the insurance less than the whole, and (2) to avoid the forfeiture of the whole policy. If the notes are paid and taken up, or cancelled by returns of the surplus and divinends, then of course the interest thereon ceases; but if they are not, the interest must all be paid when due. Third. The first premium note given at the date of the policy for the first year, and the other three notes also, after stating the interest at 7 per cent per annum, the language is, "which interest shall be paid annually or the policy be forfeited." At the expiration of the policy by death or limitation of time, the provision for payment is followed by the language, "the balance of the year's premium and all notes given for premiums, if any, being first deducted there from." The fourth express condition of the policy that "in every case where this policy shall cease, or become null and void, all payments thereon shall be forfeited to the company." It will be seen that there are four express conditions, or four repetitions of the same condition, upon which the whole policy and insurance will become forfeited at the option of the company. These provisions are so plain, clear and explicit that there can be no ambiguity, uncertainty or doubt. If in any or all of these specified cases the policy may, notwithstanding, be valid and effectual to secure to the assured the proportion of tenths of the insurance so provided for in another part of the policy then all the above conditions and provisions are rendered entirely nugatory, and are in effect stricken from the policy. For if the payment of the cash premiums and of the interest for the first year is not made, or the premium note given, the policy would of course not take effect for any purpose, and it would not be proper to call it a forfeiture. If after the payment of the premiums and interest for the first year had been fully made, and no future premium notes given, or future premiums or interest paid, the policy would still be effectual for one-tenth of the insurance, then in no case can there be a forfeiture of the whole policy, as provided for in the above contingencies.

We will now consider the provision or provisions of the policy which are claimed to have such a sweeping effect upon all these express conditions of forfeit


1. The policy provides that if default be made in the payment of any premium, the company is to pay the assured "as many tenth parts of the original sum assessed as there shall have been complete annual premiums paid at the time of such default." This clause is followed by the above specified condition of forfeiture, beginning with the qualifying words "but in order to secure such proportion," etc. In short, the provision so qualified is that on the default of the payment of premiums the company shall pay as many tenths as the years in which all payments have been

[blocks in formation]
[ocr errors]

2. The policy provides that "if the said premiums, or the interest upon any note, shall not be paid on or before the days mentioned for the payment thereof at, etc., or to, etc., the company shall not be liable for the payment of the whole sum assured, but only for such part thereof as is expressly stipulated above, and the remainder shall cease and determine." On casual reading this might seem to conflict with these several explicit clauses of total forfeiture, by reason of the interest not being paid. But if this conflict can be avoided by any other reasonable construction of this provision from the language itself, it is of course the duty to so construe it. "If the premiums are not paid," is followed by the disjunctive or if the interest is not paid." If either is not paid presupposes that one has been paid. Then what is the sense on this necessary hypothesis? Why, most clearly, if the said premiums for any one year have been paid, or if not so paid, the interest upon any note or upon all the notes outstanding has been fully paid; that is, so long as such notes shall run and bear interest; then the assured may be entitled to as many tenths as the years in which such premiums were paid. The interest on any one note cannot be said to be paid annually in cash, and fully paid, for only a small part of the time in which such note runs or is outstanding. This suit is brought after the expiration of the policy. The condition of recovery of any thing upon the policy by this clause is that the interest on any or all of such outstanding notes shall have all been paid. Another form of the sentence, with the same sense, may be adopted, and that is, if the premiums up to the time of the default and the whole interest on any premium note have been fully paid, then a recovery may be had for such proportion as may be due by reason of the full payments of certain years. To illustrate: The plaintiff brings this suit long after the expiration of the eleven years' time of the policy, and demands $400, as the fourtenths of the whole insurance, because he has paid fully for four years. The defense is that may be true, but he has not paid the interest on the first four premium notes, which has been accruing from year to year since that time, and for that reason a forfeiture is demanded of the whole policy. Those premium notes have not been taken up or paid, and they will continue to bear interest until they are so taken up or paid. They become due only at the expiration of eleven years, the limitation of the policy, or at the death of the assured, by their terms. The interest thereon has been anticipated and appropriated by the company, as a fund certain to be paid, and paid in cash, and annually, so that the future interest upon such interest may be realized by the company.

We may say therefore that "the interest upon any note" means the whole interest on any note, without doing violence to the language of this clause of the policy. Such is the clear and obvious meaning of the language, and there is therefore no conflict between this provision and the other provisions quoted above. But if the language might possibly mean, as claimed by the learned counsel of the respondent, from all the provisions of the policy constituting one general scheme, construed together, to effectuate and carry out what the parties must have intended, such a construction would be compelled in order to give any force to several other provisions, perfectly clear and explicit, and❘ to make such a method of insurance practicable and safe both to the insurer and the insured: First, the interest upon the premium nctes is payable annually,

[ocr errors]


and in cash; second, at the expiration of the policy the balance unpaid of the premiums, and of the notes given for premiums, is deducted from the insurance; the notes cannot include the interest, for that is presumed to have been already paid in cash, and at the proper time; third, the surplus or dividend is applied to the payment of the principal of the notes, pro tanto, and such was the practice during the first four years without question, and the interest was paid in cash at the end of each year; fourth, by the construction contended for by the learned counsel of the respondent, the policy would not be an eleven-year policy, or until the death of the insured, but a yearly policy or policy for one year. If the payments are all made for the first year the assured may then stop and demaud under this policy the one-tenth of the whole amount, or $100, and then give his premium note, and pay the cash premiums and interest, and have an assurance for another year. If the law allowed the company to do this kind of business, most certainly the company would find it most unprofitable to do so. But this is not the scheme of endowment insurance. The company are compelled to forfeit all policies on the failure to pay the interest annually in cash by the exigencies of their business, on this plan of life insurance. The theory that this system of giving premium notes is analogous to the assured paying the money to the company and borrowing it back upon annual interest, does not create one single reason against the above construction of the policy. The interest is made, and would be as imporportant to the company, and its prompt annual payment as necessary to their business by one theory as by the other. It was not only the practice of the plaintiff under this policy during the first four years to pay the interest annually in cash, and apply the dividends on the principal of the notes, but from the evidence it was and had been the invariable practice of the company to require and have the same to be so done, and in default of the payment of the interest in this way, to forfeit the whole policy, and this practice was made the basis of their future plans of business, and indispensable to them, and the plaintiff is presumed to have had notice of it. Fuller v. Mad. Mut. Ins. Co., 36 Wis. 599.

It is forcibly said in New York Life Ins. Co. v. Statham, 93 U. S. 24, by Mr. Justice Bradley: "All the calculutions of the insurance company are based upon the hypothesis of prompt payment. They do not calculate on the receipt of the premiums when due, but upon compounding the interest upon them. It is on this basis that they are enabled to offer assurance at as favorable rates as they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment."

In Tait v. New York Life Ins. Co., 4 Big. 479, Emmons, J., said: "Out of a given number of insured persons statistics show that there will be, on an average, a certain proportionate number of deaths each year, and in a mutual scheme the premiums to be paid each year by the whole number insured are fixed at such an amount as will make their sum total just sufficient to meet the losses arising from the average deaths during the year, and to provide for the unforeseen fluctuations of the law of average and other contingencies, including necessary expenses. If time were thus held not to be the essence of these unilateral life insurance contracts, it is difficult to see how a mutual company can escape ultimate, if not speedy, bankruptcy."

No other consequence than a complete forfeiture is contemplated from the non-payment of the interest. It is only from default alone in the payment of the premiums that the policy may be valid for a proportion of the insurance. Where a forfeiture of the entire policy is as necessary and essential to the very ex

istence of this plan of insurance, and to the continued business of the company thereon, and the language of the contract is so clear and explicit, and its sense so obvious, and the object and purpose so apparent, and when the cause and reason of the forfeiture have been so fully established, as in this case, the court cannot hesitate to so declare it. There can be no good reason of public policy, equity, or common justice, and no well-reasoned judicial decision of other courts against it, in such a case, or under such a policy. The contract and the law both force it, and to allow a recovery of any proportion of the insurance in such a case would be a repudiation of the contract of the parties, and a substitution of one never made or contemplated by them.

This view of the case, and such a construction of the contract of insurance, have been sanctioned and approved by several late decisions of other highly respectable courts in cases of the same form of policy, and in cases where some of the same provisions in the policy existed, but not the several conditions of forfeiture as in this. We shall cite only such cases as are found and commented on in the very able briefs of the learned counsel. In doing so however any extended quotations from the opinions in those cases will not be necessary; but any additional reasons therein not given above may be noticed.

In Ohde v. N. W. Life Ins. Co., 40 Iowa, 357, the policy did not contain the several conditions of forfeiture for non-payment of interest on the notes found in this policy, and yet the court construes the second condition of the policy upon which the plaintiff relies in this case to require the payment of the interest on the notes as a condition precedent to the recovery of any proportion of the insurance. The same in Symonds v. N. W. Life Ins. Co., 23 Minn. 491; N. W. Life Ins Co. v. Little, 56 Ind. 504; Ins. Co. v. Bonner, 36 Ohio St. 51; Fithian v. Same, 4 Mo. App. 386.

In New York Life Ins. Co. v. Statham, 93 U. S. 24, supra; Manhattan Life Ins. Co. v. Buck, id., the clauses of forfeiture were as to the non-payment of the premiums, and it was held that the company were legally entitled to the forfeiture; but in the latter case it was held by a majority of the court, that the great civil war having intervened to prevent the payments, the assured was equitably entitled to what his interest in the policy, by reason of the former payments, was worth; but there are strong dissenting opinions in that case that even such a cause was not an excuse to prevent a full forfeiture of the policy. The opinion of Mr. Justice Bradley as to such causes of full forfeiture is especially applicable to this case: "The contract is not for an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but it is an entire contract of assurance for life (11 years), subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract and such is its character. * ** Each installment is, in fact, part consideration of the entire insurance for life; * * * the whole premiums are balanced against the whole insurance."

In St. Louis M. Life Ins. Co. v. Grigsby, 10 Bush, 310, the terms and conditions of the policy were almost exactly the same as in this case. The court held however that the interest on the premium notes might be paid in dividends, without citing any provision of the policy allowing it. Here it is to be paid in cash, the whole of it at the end of the year, and the dividends are applied upon the notes to reduce their principal. In that respect the two policies may be different. By this policy, when the time of its expiration arrives, the unpaid cash premiums, and the balance of the premium notes after the deduction of the dividends therefrom, are to be deducted from the insurance, and

nothing is said about the interest which was to be paid annually in cash, and therefore to be compounded if not paid. The yearly interest, when due, constitutes a new principal bearing interest, and would not be included in the term "notes." It is cash interest, to be paid promptly, while the principal of the notes need not be paid at all, but remains to be deducted from the insurance at the end of the policy. It is admitted in that case that the condition of the policy was that the entire policy might be forfeited for nonpayment of the interest, but that such forfeiture was in the nature of a penalty; but the court refuses to enforce such a condition because it may be compensated in the same way as the non-payment of the premiums. By what warrant of law or construction is the nonpayment of the interest placed upon the same footing as the non-payment of the cash premiums, when the contract of insurance makes the first a condition precedent to the recovery of any part of the insurance, and the second forfeits that part only for the years beyond the full payment, and allows a recovery of a proportion as to the time in which the premiums were paid? Such a broad license of equitable construction of a contract, where time is made the essence in respect to the performance of conditions, upon which the very business of life insurance depends, cannot be approved.

In Talt v. N. Y. Life Ins. Co., U. S. Cir. Ct. (Tenn.), 4 Big. Ins. Cas. 479, the policy provided for a full forfeiture on non-payment of the premiums. In an elaborate and most able opinion of Judge Emmons, it was held that the condition was essential to the business of the company, and the time of payment was the essence of the contract, and that the intervention of the civil war even would not excuse the non-performance, or affect the company's strict right of forfeiture of the whole policy. But in Hancock v. The Same Company; in the United States Circuit Court for the District of Kentucky, reported in the same volume, page 488, in a similar case, it was held that the assured, being prevented by the civil war from further payment, after several years' payment of the yearly premiums, might recover in equity such damages as the plaintiff might have suffered in the matter, not however on the criterion of the actual premiums paid in the years before the default caused by the war. The legal right of the company to a full forfeiture of the policy was conceded, but the intervention of the war was supposed to have raised an equity in favor of the assured; that is, that under the peculiar circumstances the company ought in equity and good conscience to allow the assured something on the policy. But this ruling was opposed to numerous authorities cited by Judge Emmons in 4 Big., supra, in cases of interruption of performance of such contracts by war. When by a great preponderance of authority, it is held that even war, by which performance has become impossible, will not affect the right of an insurance company to declare an entire forfeiture of the whole contract, in which strict performance of conditions is made essential, and in default of which a forfeiture of the entire contract is stipulated in clear and unmistakable terms, what should be said of the Grigsby case, supra, of Ohde v. Ins. Co., supra 4 Little v. N. W. M. Life Ins. Co., supra, and Dutcher v. Brooklyn Life Ins. Co., 2 Cent. L.J.153, or 4 Big. Ins. 665, and perhaps some other cases, where the assured, not only without cause or excuse, but willfully and persistently refused to pay the interest on the premium notes, and where the contract in clear terms makes such a default the condition of complete forfeiture, and it is yet held that only a partial forfeiture or a forfeiture pro tanto may be declared? The only apology for such cases is that they were decided in courts of equity, where equitable constructions may sometimes be allowed.

« SebelumnyaLanjutkan »