Fitzpatrick v. Mutual & Benevolent Life Insurance
Also decided on this docket: La. Ct. App. 3d Cir., March 12, 1973 275 So. 2d 196; La. Ct. App. 1st Cir., July 6, 1970 239 So. 2d 406; La. Ct. App. 1st Cir., November 22, 1955 84 So. 2d 60; La. Ct. App. 1st Cir., May 20, 1932 141 So. 808; La. Ct. App. 1st Cir., February 16, 1932 139 So. 672; La. Ct. App. 1st Cir., December 3, 1906 4 Teiss. 109
Fitzpatrick v. Mutual & Benevolent Life Insurance, 25 La. Ann. 443 (1873).
Opinion text
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 hand, 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.