{ "id": 5116042, "name": "Mueller v. United States Mutual Accident Association", "name_abbreviation": "Mueller v. United States Mutual Accident Ass'n", "decision_date": "1893-08-04", "docket_number": "", "first_page": "40", "last_page": "47", "citations": [ { "type": "official", "cite": "51 Ill. App. 40" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1 Ky. L. R. 93", "category": "reporters:state", "reporter": "Ky. L. Rptr.", "opinion_index": -1 }, { "cite": "118 Mass. 478", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2154072 ], "opinion_index": -1, "case_paths": [ "/mass/118/0478-01" ] }, { "cite": "63 N. Y. 160", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 527283 ], "opinion_index": -1, "case_paths": [ "/ny/63/0160-01" ] }, { "cite": "96 U. S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3381766 ], "opinion_index": -1, "case_paths": [ "/us/96/0544-01" ] }, { "cite": "26 Ill. App. 230", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4942056 ], "opinion_index": -1, "case_paths": [ "/ill-app/26/0230-01" ] }, { "cite": "19 Brad. 327", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "50 N. W. Rep. 47", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "28 La. Ann. 938", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 8509483 ], "opinion_index": -1, "case_paths": [ "/la-ann/28/0938-01" ] }, { "cite": "63 Md. 86", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1804488 ], "opinion_index": -1, "case_paths": [ "/md/63/0086-01" ] }, { "cite": "50 Iowa, 86", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2326081 ], "opinion_index": -1, "case_paths": [ "/iowa/50/0086-01" ] }, { "cite": "72 Ill. 261", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "24 Ill. 166", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5284306 ], "opinion_index": -1, "case_paths": [ "/ill/24/0166-01" ] }, { "cite": "12 Ill. 338", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "73 Ill. 235", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "47 Ill. 519", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "51 Ill. 351", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "78 Ill. 96", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 823957 ], "opinion_index": -1, "case_paths": [ "/ill/78/0096-01" ] }, { "cite": "74 Ill. 375", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2702948 ], "opinion_index": -1, "case_paths": [ "/ill/74/0375-01" ] }, { "cite": "60 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8501218 ], "opinion_index": -1, "case_paths": [ "/ill/60/0328-01" ] }, { "cite": "58 N. Y. 98", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "50 Mich. 273", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1393777 ], "opinion_index": -1, "case_paths": [ "/mich/50/0273-01" ] }, { "cite": "26 N. Y. 240", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "51 Mich. 587", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 8723654 ], "opinion_index": -1, "case_paths": [ "/mich/51/0587-01" ] }, { "cite": "43 Ill. App. 525", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5054725 ], "opinion_index": 0, "case_paths": [ "/ill-app/43/0525-01" ] }, { "cite": "137 Ill. 417", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440856 ], "opinion_index": 0, "case_paths": [ "/ill/137/0417-01" ] }, { "cite": "37 Ill. App. 296", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 859894 ], "opinion_index": 0, "case_paths": [ "/ill-app/37/0296-01" ] } ], "analysis": { "cardinality": 691, "char_count": 14453, "ocr_confidence": 0.487, "pagerank": { "raw": 1.2586913870156785e-07, "percentile": 0.6119020838666656 }, "sha256": "d686a490281281deb47ce7017863e54e661ccfb9e780cd695dde064d5c7d9cf8", "simhash": "1:f447d7dc52167aec", "word_count": 2531 }, "last_updated": "2023-07-14T18:36:15.137575+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mueller v. United States Mutual Accident Association." ], "opinions": [ { "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nThe appellant is the administrator of Agnes Scheel, who was the wife of Charles Scheel. By the appellee, Charles was insured against death by accident, the policy payable to her.\nThe only question is, whether Charles had forfeited his membership by the non-payment of an assessment.\nThe policy contained a clause that if an assessment \u201c be not paid before its expiration, this certificate and all insurance thereunder will then cease to be in force.\u201d\nOne of the by-laws of the association provides that \u201c any member who shall not remit the amount of his assessment or annual dues within thirty days from the day of the notice thereof * * * shall forfeit his claim to membership and have his name stricken from the roll.\u201d\nAll notices of assessments shown by this record, three in number, contain this:\n\u201c Deposits foe Assessments.\nTo make sure that your membership will not lapse, keep a deposit with the association.\nThe system of deposit accounts adopted for the convenience of members, enabling them to remit for several assessments in advance, thus avoiding annoyance or the liability of forfeiture by neglect to remit, or by loss in the mails through remitting-for single assessments as they are made, leads us to commend it to all members as the most desirable and advantageous plan.\nThe proportion of members who are now paying their assessments by the year is very rapidly increasing, the money being deposited in bank beyond any possibility of loss to the members.\nDeposit receipts are given, and the member is Jkept fully apprised of all assessments made. The assessment notices when mailed, are stamped paid, charged against deposit account. We aim to give notice when same is exhausted.\u201d\nNo by-law relating to such deposits is shown, but the course of business and practice of the association is shown by the notices, and Charles Scheel had conformed to it by making one deposit of $10 and another of $5, out of which $14 had been applied to assessments, leaving still with the association $1. The by-laws provided that \u201c each member shall pay the sum of $1 annually in advance for dues. These dues shall be payable with the last assessment of each year.\u201d\nThe last assessment payable in the year 1887, was made November 28, 1887, and on that day was mailed in New York to Charles Scheel in Chicago, a notice which the record shows could not have reached him before November 30, 1887.\nSo much of that paper as constitutes the notice simply, is as follows:\n\u201c Office of the\nUnited States Mutual Accident Association,\n320 and 322 Broadway, Hew York.\nP. O. Box, 851.\nChas. B. Peet, President. James E. Pitcher, Secretary.\nCalvin T. Hazen, Treasurer.\nHew York, Hovember 28, 1887.\nAt a regular meeting of the board of directors, an assessment of two dollars upon each member in Division B, for conducting the business of the association, was ordered to be made, to expire thirty days from Hovember 28, 1887, upon all members admitted prior to that date.\nIn accordance with the by-laws, the annual dues in advance are payable with this assessment, making a total amount due upon this notice of $3.\nAssessments and annual dues must be paid to the secretary at the office of the association, 320 and 322 Broadway, N. Y., within thirty days from Hovember 28, 1887, and the association can not be legally held by payment to any one else.\nThe sending of this notice shall not be held to waive any forfeiture or lapse of membership by non-payment of previous assessments.\nIf you have a deposit account and this notice is stamped \u00a3 paid, charged against deposit account,\u2019 hold it as your receipt.\nIf not paid please return this blank with your full name, and postoffice address, and enclose \u00a73 in payment of assessment Ho. 53, and annual dues.\nVery respectfully,\nJames E. Pitcher, Sec\u2019y.\u201d\nHow that this notice was not such as Charles Scheel was required by the by-law to obey, must be conceded.\nUnder the by-law he was required to \u201c remit,\u201d * * * \u201c within thirty days from the day of the notice.\u201d \u201c The day of the notice \u201d is the day \u201c when in due course of mail it would reach\u201d Charles Scheel. Northwestern Travelling Men\u2019s Ass\u2019n v. Schauss, No. 4752, opinion filed June 14, 1893.\nBy the notice Charles Scheel was required to have the money at the office of the association in New York by December 28, 1887. Under the by-law he was entitled to remit December 30, 1887.\nThe notice cut cff four days of his time.\nAgain, the association had \u00a71 of his money on deposit, and could only require $2 instead of S3 from him.\nThe association claims a forfeiture. \u201c It must show that the member was notified in the manner prescribed by the by-laws.\u201d Bacon, Benefit Societies, Sec. 379.\nAnd it is no answer to objections to a notice that the conduce of the member probably would have been the same if the notice had been unobjectionable. Nat. Bk. of Rondout v. First Nat. Bk. of Chicago, 37 Ill. App. 296; Frey v. Wellington Mut. Ins. Co., 4 Ontario App. Rep. 293.\nIt is quite conceivable that Charles Scheel might not have received the notice until the 27th of December, 1887, or on some day between that day and the 31st, and then, though under the by-law he was still entitled to remit S2 for his assessment, and under the usage of the company entitled to have the remaining 81 of his deposit applied to his annual dues, yet being informed by the notice that $3 were required of him, and that the time within which he might remit had passed, he might thereby have been misled, and so refrained from sending the $2 on or before the 30th. \u2022-\nThe indemnity to be paid by the association was conditioned upon the fact that the assured was at the time of his death a member. The payment of any particular assessment was not the consideration for the indemnity, but the non-payment of it might be a cause of forfeiture of membership. .\nIt is not necessary to decide whether the by-law quoted is self-executing, or requires some action by the association before a membership is forfeited.\nCertainly the association could waive the forfeiture, if one had been incurred. Metropolitan Accident Ass\u2019n v. Windover, 137 Ill. 417.\nAnd if a forfeiture was incurred the association has waived it.\nDecember 29, 1887, which was one day before Charles Scheel should have been required to remit, the association sent him this notice:\n\u201c Office of the\nUnited States Mutual Accident Association.\n320 and 322 Broadway.\nP. O. Box 851.\nChas. B. Peet, President. James B. Pitcher, Secretary.\nCalvin T. Hazen, Treasurer.\nNew York, December 29, 1887.\nAt a regular monthly meeting of the board of directors, an assessment of $2 upon each member in Division B, for conducting the business of the association, to expire February 1, 1888, was ordered to be made upon all members admitted prior to January 1, 1888.\nAssessments must be paid to the secretary at the office of the association, 320 and 322 Broadway, N. Y., prior to date of expiration (February 1, 1888), and the association can not be legally held by payment to any one else.\nThe sending of this notice shall not be held to waive any forfeiture or lapse of membership by non-payment of previous assessments.\nYour membership in this association having been forfeited by non-payment of the previous assessment, we send you this blank to notify you that if you are in sound bodily condition, and will remit to us $2 for such assessment, we will, upon its receipt, re-instate you to membership, and you nan then pay this assessment (No. 54) as per this blank, on or before the date of its expiration. If you prefer, you can remit now in full.\nPlease return this blank with your full name and post-office address, and enclose $2 in payment of assessment No. 54.\nVery respectfully, *\nJames B. Pitcher, Sec\u2019y.\u201d\nThe inference from this notice is that the association regarded the annual dues for 1888, as being paid, and it is in the record \u201c that the one dollar * * * was applied by the company in the payment of annual dues for the year 1888, and has been retained by the company.\u201d Thus at the same time that the association insists that Charles Scheel ceased to be a member by his default, it applies his money to the continuance of his membership for another year. Whether this last notice is good, is not a question now. Charles Scheel died from a cause within the policy, January 15, 1888, so that he could not be in default on the last assessment.\nBy reason of the defects of the notice of the' assessment of Hovember 28, 1887, no forfeiture was incurred by disregarding it; and had there been a forfeiture, it was waived; The appellant is therefore entitled to recover.\nSo much of this opinion as relates to the waiver, is concurred in by the other members of this court; that under the circumstances there was no cause of forfeiture, is my individual opinion.\nThe case was tried below without a jury. We will therefore enter judgment here. Union Hat. Bk. v. Manistee Lumber Co., 43 Ill. App. 525.\nIt is agreed that the amount, if anything, is $4,000, with interest at six per cent from April 5, 1888.\nThe judgment is reversed and j udgment entered here that the appellant recover as above.", "type": "majority", "author": "Mr. Justice Gary" } ], "attorneys": [ "Appellant\u2019s Brief, B\u00fcbens & Mott, Attorneys.", "Appellee\u2019s Brief, Knight & Brown, Attorneys." ], "corrections": "", "head_matter": "First District\nMarch Term, 1893.\nMueller v. United States Mutual Accident Association.\n1. Insurance Companies\u2014Forfeiture of Policies\u2014Notice.\u2014A certificate of insurance in a mutual accident association contained a clause providing that if an assessment \u201cbe not paid before its expiration, this certificate and all insurance thereunder will then cease to be in force.\u201d One of the by-laws of the association provided that \u201c a member who shall not remit the amount of his assessment or annual dues within thirty days from the day of the notice thereof, shall forfeit his claim to membership and have his name stricken from the roll.\u201d It was held that the notice to a member, if it is sought to forfeit his policy, must be such a one as the member is required by the by-law to obey.\n2. Notice by Mail\u2014What is \u201c the Day of Notice.\u201d\u2014Under the bylaw of a mutual accident association a member was required to remit within thirty days from the day of the notice. It was held that 11 the day of the notice,\u201d when sent by mail, is the day when in due course of mail it would reach the member, and he may remit without forfeiture of his rights on the last day of the thirty mentioned in the notice.\n3. Forfeiture\u2014Burden, of Proof.\u2014When an association claims a forfeiture of a member\u2019s rights by reason of his non-compliance with a notice, it must show that the member was notified in the manner prescribed by the by-laws. It is no answer to objections to a notice that the conduct of the member probably would have been the same if the notice had been unobjectionable.\n4. Forfeiture\u2014Waiver of.\u2014An insurance association can waive a forfeiture, if one has been incurred.\nMemorandum.\u2014Assumpsit. In the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Declaration on a certificate of insurance; plea, general issue; trial by jury; verdict for plaintiff; motion for a new trial granted; cause then submitted to the court upon an agreed statement of facts; finding for defendant; appeal by plaintiff. Heard in this court at the March term, 1893, and reversed. Judgment entered in the Appellate Court.\nOpinion filed August 4, 1893.\nThe opinion states the case.\nAppellant\u2019s Brief, B\u00fcbens & Mott, Attorneys.\nThere is nothing in the charter or by-laws which will.make the record of the society as to the levying of an assessment prima facie evidence of the legality of such assessment. An insurance company, although a mutual company, must show a strict compliance with all the conditions precedent to the levying of an assessment. May on Insurance, 3d Edition, Sec. 557; Bacon on Benefit Societies, Sec. 377; Niblack on Mutual Benefit Societies, Secs. 277-279.\nNo forfeiture can be established except for a violation of the precise conditions laid down. Bates v. Association, 51 Mich. 587.\nWherever a notice is requisite, either by statute or by-law, to permit of any summary proceeding for the forfeiture of valuable rights, and especially property rights, the precise form of notice prescribed and the time and manner of giving it must be strictly observed; otherwise no forfeiture can be insisted upon. High on Extraordinary Legal Bemedies, Sec. 295; Sands v. Sanders, 26 N. Y. 240; Castner v. Insurance Co., 50 Mich. 273; Sands v. Graves, 58 N. Y. 98; Sands v. Shoemaker, 4 Abbott App. (N. Y.) 149; Haywood v. Collins, 60 Ill. 328; Carney v. Tully, 74 Ill. 375; Chicago & A. R. R. Co. v. Smith, 78 Ill. 96.\nThe retention by the company of the one dollar balance of deposit account is inconsistent with and is a waiver of any forfeiture.\nThe company applied this one dollar toward the payment of the annual dues of the year 1888. The policy was declared forfeited December 28,1887. No part of this one dollar had therefore been earned by the company. It could not claim that the policy was forfeited and void as to the insured, but was valid and subsisting for the purpose of allowing it to retain unearned dues. If the company intended to insist upon a forfeiture it should have returned the one dollar. \u00c6tna Ins. Co. v. Maguire, 51 Ill. 351; Peoria M. & F. Ins. Co. v. Botto, 47 Ill. 519; Lycoming Ins. Co. v. Barringer, 73 Ill. 235.\nIn cases of a forfeiture of a contract the parties must be put in statu quo by a return of whatever was received on the contract. Buchenau v. Horney, 12 Ill. 338; Whitehall v. Smith, 24 Ill. 166; Tobin v. Western Mutual Aid Association, 72 Ill. 261.\nAppellee\u2019s Brief, Knight & Brown, Attorneys.\nOn the question that the notice began to run from the date of the mailing of the notice, appellee cited the following authorities: Greeley v. Insurance Co., 50 Iowa, 86; Yoe v. Benevolent Ass\u2019n, 63 Md. 86; Epstein v. Insurance Co., 28 La. Ann. 938; Ross v. Hawkeye Ins. Co. (Iowa), 50 N. W. Rep. 47; Weakley v. Insurance Co., 19 Brad. 327; Union Mutual Accident Ass\u2019n v. Miller, 26 Ill. App. 230; May on Insurance, Sec. 562.\nThe company was not bound to give notice of the annual dues. The payment of them is a part of the contract. Ins. Co. v. Mowry, 96 U. S. 544; Roehner v. Ins. Co., 63 N. Y. 160; Bacon on Insurance, Sec. 360.\nOn the question that the company owing him anything from another fund, does not invalidate the notice, appellee cited the following cases: Hollister v. Ins. Co., 118 Mass. 478; Ancient O. U. W. v. Moore, 1 Ky. L. R. 93." }, "file_name": "0040-01", "first_page_order": 36, "last_page_order": 43 }