#### Charles W. Worthen, Plaintiff, *v.*The Massachusetts Benefit Life Association, Defendant.

(Supreme Court, New York Trial Term,

August, 1898.)

Life insurance — Conditions precedent to the payment of a surrender value, that the insurer should have elected to pay it and should have found the insured totally and permanently disabled — Waiver.

Under a certificate of membership in an assessment life insurance company, providing that “ In the event of said member becoming totally and permanently disabled, and the determining of such disability by the medical director and board of directors of said associa- • tion,” it would pay, at its option, and at the request of the member, a sum equal to one-half of the face of the certificate, an assignee cannot maintain an action for such surrender valué where there is no proof that the medical director and board of directors of the association had. determined the disability of the member, nor that the association had elected to terminate the risk by paying one-half of its face; nor is a waiver of these conditions precedent shown by proof "that, after the commencement of the action, the association wrote letters to the assignee in which it was stated that it was* necessary, as a first step, for the member to state in writing that he was, in his own opinion, permanently and totally disabled from some organic disease (naming it) which threatened the expectancy of life and that, when such a statement had been furnished to the association, it “ will send you (the assignee) the necessary papers to prove your claim,” or “ alleged disability.”

Action by an assignee of two policies of life insurance to recover under the disability clause contained in said policies.

Edward K. Sumerwell, for plaintiff.

J. *K.*Hayward, for defendant.

Chester, J.

These two causes tried together present the same questions for determination. The plaintiff is the assignee of, two policies or certificates of membership issued by the defendant, one to George W. Worthen with his wife Eveline as the beneficiary, and the other to Eveline Worthen, with her husband George W. as the beneficiary. Each certificate binds the defendant, for the considerations therein named, to pay to the beneficiary, if living; if not, to the heirs-atiaw of the member, in sixty days after due proof of the death of the member, a sum equal to the amount re*438ceived -from a death assessment on the membership, but not to exceed $5,000.

Each certificate also contains the following clause: “ In the event of said member becoming totally and permanently disabled, and the determining of such disability by the medical director and hoard of directors of said association, there shall be paid to said-member, at the option of said board, if he shall so request in writing at any time while this policy is in full force, upon the surrender to said association of this policy and the cancellation of the same, in full discharge and settlement of all claims under this contract, a sum equal to one-half the face of his certificate or policy.”'

The actions are brought to recover $2,500 on each of the certificates under this disability clause. ■

It appears that while these certificates were in full force George W. Worthen wrote to the defendant a letter of which the following is a-copy:

“Lebanon, K H., *July*28, 18,97.

“ The Massachusetts Benefit Life Association, Boston, Mass.:

“ Gentlemen.— I hereby notify you that I am totally and permanently disabled within the meaning of my policy in your assor ciation Mo. 6047, dated December 6, 1881, and that said policy is now in full force, and I offer to surrender it to said association for cancellation upon receipt from you of a sum equal to oneLhalf the face of the policy, and I reqiiest the same to be paid to me immediately in full- discharge of all claims under said contract. •

“ Yours truly,

“ G. W.' Worthen.”

A letter in all respects identical with this, except as to the number of the policy, was written at the same time by Eveline Worthen. Both letters were delivered about the day of their date, by the plaintiff, to J. K. Hayward, agent and attorney of the derfendant in Mew York, and were by him forwarded to the office of the defendant in Boston.

On July 31, 1897, before receiving any reply to these letters these actions were begun. The plaintiff, on the trial, gave evidence that would perhaps justify the court in holding that the insured, under these certificates, were both totally and permanently disabled at the time of making these demands for payment under *439the disability clause of their certificates and at the time of the commencement of the actions. The defendant offered no proof •to controvert this, but insists that the plaintiff failed to prove the conditions mentioned in the disability clause, which were thereby made conditions precedent to his right to recover thereunder. The plaintiff furnished no proof that the medical director and board of directors of the association had determined the disability of these members or that such board had exercised its option to pay one-half the face of the certificate, rather than to continue the insurance at the full amount.

The plaintiff, however, urges that these conditions precedent to a recovery have been waived by the defendant, and in support' of this read in evidence, without being objected to by the defend- ■ ant, the following further correspondence relating to plaintiff’s claim, all of which was subsequent to the commencement of the action, viz.:

“ Massachusetts Benefit Life Association.

“ Claim Department,

“ Charles H. Bacall, Adjuster,

■ “Boston, *August*4, 1897.

“ Geo. W. Worthen, Esq., Lebanon, E. H.:

“ Dear Sir.— We have received from you and your wife, Eveline Worthen, by Charles H. Worthen, attorney, through the hand of Mr. J. K. Hayward, of Eew- York, a notice that you are permanently and totally disabled, and - requesting a settlement of your policy. It is necessary, as a first step in all such cases for the member to state over his own signature that he is, in his opinion, -permanently and totally disabled from some organic disease (naming it) which threatens the expectancy of life and renders him entirely helpless, and to request the necessary blanks. . As soon as this is complied with we will send you the necessary papers to prove your claim.

“ Truly yours,

“ Chas. H. Bacall,

“ Adjuster.”

“ Eew York, *Aug. 9th,*1897.

“ C. H. Bacall, Esq., Adjuster, Mass. Benefit Life Assoc., Boston:

“ Dear Sir.— Your favor of the 4th inst., to Mr. G. W. Worthen has been referred to' me for reply, as both he and my mother Eveline *440Wor'then have assigned their interests in the policies to me.' They are both advanced in years and extremely feeble, so I do not feel like imposing any unnecessary hardship on them. I have fully complied with the requirements of the contract and by-laws- as I understand them. However, if you will kindly send me the papers referred to I will give them proper attention.

“ Yours very truly,

’ ’ “ Ohas. H. Wórthen, 1

“ Hotel Endicott, Columbus Ave., N. Y. City.”

. “ Massachusetts Benefit Life Association.

*“*Claim Department, ,

“ Charles H. Bacall,' Adjuster, (

“ Boston, *August*10, 1897. )

“ Chas. H. Worthen, Esq., Hotel Endicott, Columbus Aye., New . York City:

“ Dear Sir.-— Your favor of the 9 th is at hand: I cannot find that any steps have-been taken by either your father or your mother to prove a disability claim under their policy. I wrote both yóur' father and your mother, stating that it was necessary in case's of disability for the member to state over his own signature that he was, in his opinion, permanently and totally disabled.from some organic -disease (naming -it) which rendered him entirely helpless, and to request the necessary blanks. Asi soon as this is complied with I will furnish them or you, upon their order, with the necessary blanks in -proof of alleged disability.

“.Yours truly,

“Chas.,H. Bacall,

“ Adjuster.”

I do not think that the defendant by' these letters has waived any condition of its contracts, or that it is estopped by anything contained in them from urging these conditions against the plaintiffs recovery.

The cases which hold that where,, with knowledge of á forfeiture or of a breach of conditions or warranties which would defeat a claim under a policy, a company requires the insured to do some-act in compliance with the terms of the policy, it thereby waives such forfeiture or breach as matter of law, do not, in my opinion-, *441apply here. Those cases go on the theory that the act so required of the insured is a recognition of the validity of the policy and inconsistent with a defense based upon an alleged forfeiture or breach of conditions, and, therefore, amount to a waiver or an estoppel. But here no such defense has been interposed. The defendant simply insists that the plaintiff has failed to prove a cause of action. It concedes that the policies are, in all respects, in full force. The requirement by the defendant of the insured, in this correspondence to name the organic disease which caused the alleged disability, before being furnished with blanks upon which to make proof of such disability may not have been justified by the express terms of the policies, but it seems to me, it was not an unreasonable requirement, and it does not show an intent to waive any of the conditions of the policies. Nor was it inconsistent with an intent on the part of the defendant to give full force and effect to the disability clause of the policies upon the conditions therein named. The defendant was not bound to take the mere statement of the insured that they were permanently disabled. The medical director and board of directors of the defendant had the right, under the express terms of the policies, to determine the question whether or not the insured were, in fact, permanently disabled, and even after they had determined that question in the affirmative the hoard of directors of the defendant still had the option, under the. policies, of saying whether the defendant would pay one-half the face value of the policies in full discharge of all claims under them or continue them in force for the full amount. The plaintiff, as the assignee of the beneficiaries under these policies, is entitled to recover under these disability clauses only upon a fair compliance with such, regulations of the association as were made conditions precedent to payment in the contract of membership. 3 Am. .& Eng. Ency. of Law (2d ed.), 1109.

The plaintiff having failed to prove that the medical directors and board of directors of the defendant had determined that the insured, under these policies, were totally and permanently disabled, and also that such board had exercised its option to pay under the disability clause, both of which matters are conditions precedent to the right of the beneficiaries to be paid under that clause, has not proven a cause of action.

The complaint in each action must, therefore, be dismissed.

Complaints dismissed.