#### White, Respondent, vs. Brotherhood Locomotive Firemen and Enginemen, Appellant.

*March 5*

April *30, 1918.*

*Life insurance: Benefit societies: Assessments paid after death of member: Recovery: Parties interested: Limitation of actions: Interest.*

1. A member of the defendant benefit society disappeared in 1901 and was not thereafter heard from, and it is established that he died in 1901. In the mistaken belief that he was still living „ his mother, the beneficiary, continued to pay the assessments on his benefit certificate until her death in 1904, and thereafter such assessments were paid by his heirs until 1915, when this action was brought by one of said heirs (who was also assignee of the other heir) to recover the assessments so paid by them. It appearing that defendant’s officers, with full knowledge of the facts as to the member’s disappearance, had advised said continued payment of the assessments, and that both'parties considered and treated the benefit certificate as valid up to November 19, 1914, when defendant rejected a demand for payment thereon, it is *held*that the assessments so paid by the heirs may be recovered.

2. Neither the estate of the deceased member nor that of the beneficiary is interested in the claim for recovery of the assessments so paid by the member’s heirs.

3. The certificate having been kept alive and treated as valid by both parties until November 19, 1914, no cause of action for recovery on the certificate or of the assessments paid after the death of the insured accrued until the rejection by defendant of the demand made on that date; and the action is therefore not barred by the statutes of limitation.

4. Interest on the amount of the assessments for which recovery is had in such action should be allowed only from November 19, 1914.

Appeal from a judgment of tbe circuit court for Sauk county: James O’Neill, Judge.

*Modified and affirmed.*

Tbis is an action to recover assessments paid on a benefit certificate in tbe appellant organization isshed to one T. J. White, which were paid by tbe plaintiff and her sister, Mar*324garet Nichols, since the death of T. J. White and since the death of the beneficiary, his mother, Ellen White.

An action to recover on this benefit certificate has been before this court and is reported in 16§ Wis. 418, 162 N. W. 441. In that action recovery of the amount of the policy and of the premiums paid by the beneficiary after the disappearance of the insured, T. J. White, to the time of her own death was adjudged. The trial court found that T. J. White died in July, 1901.

The complaint in this action alleges, as was alleged in the former complaint, the disappearance and death of White, and asks for a judgment for recovery of the assessments made by the defendant association and paid by respondent and her sister, Margaret Nichols, on this certificate from the death of their mother, the beneficiary, up to the time of the commencement of this action in December, 1915. Respondent alleges that she and her sister were induced to keep paying the assessments upon the representations made to them by officers of the local lodge that the policy would be kept in force, upon payment of the assessments and dues, until they received knowledge whether or not T. J. White was dead.

The association alleges that any and all premiums which were paid by the plaintiff and her assignor were paid voluntarily for the purpose of keeping in force the certificate so that when the death of the insured was in fact proven the amount of the certificate might be received by the beneficiary or her heirs; that the premiums were paid in the usual and regular manner; that the plaintiff and her sister were fully informed of the conditions and circumstances surrounding the disappearance of T. J. White, and that, fully cognizant of these facts, they continued to pay these premiums for the purpose of keeping valid the certificate so that a recovery of the amount could be had by them.

Defendant alleges that plaintiff’s right to recover herein is barred by sec. 4222, Stats., that since the time of com*325.mencement of tbis action and since tbe joining of issue upon tbe original answer tbe judgment of tbe circuit court referred to in these pleadings was affirmed by tbe supreme court and that all costs b'ave been fully paid, and that tbe amounts thus paid include any and all dues and assessments wbicb were paid on tbe policy up to tbe time of tbe death of tbe beneficiary, Ellen White, and by reason thereof tbis plaintiff has no cause of action; and that tbe cause of action was not instituted within tbe time required by tbe constitution and bylaws of tbe association nor by tbe certificates of insurance set forth and referred to in plaintiff’s complaint bearing date of February 18, 1901, and January 1, 1907.

Upon service of tbe complaint there was a demurrer to plaintiff’s capacity to sue and as to its sufficiency, wbicb was overruled by tbe court and exception taken. There was likewise a demurrer *ore tenus*before tbe introduction of any testimony, wbicb was overruled and exception duly taken.

Tbe court ordered judgment in favor of tbe plaintiff for .the sum of $301.97 damages, together with tbe sum of $38.52 costs. Tbis is an appeal from such judgment.

For tbe appellant there was a brief by *Bentley,*Kelley. *& Hill*of Baraboo, and oral argument by *Frank R. Bentley.*

For tbe respondent there was a brief by *Qmtophorst,*Thomas, *Rieser & Quale*of Baraboo, and oral argument by *H. Ii. Thomas.*

Siebeciceb, J.

Tbis action for recovering tbe amounts of assessments plaintiff and her assignor paid on tbe benefit certificate of Thomas J. White, deceased, is one to recover tbe sums paid to tbe defendant under tbe mistaken belief that White was living when tbe assessments were levied, demanded, and paid. It is established that White died in 1901, and that tbe right to levy assessments against him as member of tbe *Brotherhood*ceased at that time. Under these circumstances it was held in *White v. Brotherhood of*
      *326
      *Locomotive*Firemen, 165 Wis. 418, 162 N. W. 441, that tbe party paying such assessments after White’s death was entitled to reimbursement. We are persuaded that this decision should be adhered to as a proper determination of this question. It follows from this that the plaintiff is entitled to maintain this action in its present form and that the estates of Thoifias J. White and Ellen White, the beneficiary named in the certificate, are not interested in this claim. It was found and determined in the *White Case,*and the trial court in this case reiterates the finding, that the officers of the *Brotherhood*had as full knowledge of the facts of White’s disappearance as had the plaintiff and her mother, who paid these assessments. The trial court determined in this case, as was held in the former case, “that the officers of the lodge advised plaintiffs to continue payment of the dues and assessments upon the certificate, which was done. Both parties considered the contract valid up to the time action was commenced, and the defendant, therefore, should not be permitted to repudiate it under the 'established facts in the case.” It is now argued that the right to recover on the contract does not prevent the statutes of limitation from running against payments of assessments from the date they were made. The logic of this contention would prevent recovery of assessments or premiums paid under our statutes on any life insurance contracts when the insured disappears, without tidings of his whereabouts, if they were made more than six years before the commencement of action and after the death of the insured. A period of seven years after last tidings is required to raise a legal presumption of death in such cases. It is readily conceivable that the insured may actually have died at the time of his disappearance but that the fact of death did not become lmown for more than six years thereafter. It is reasonably to be expected that the insurer and the beneficiary, under the facts and circumstances surrounding the disappearance of an insured person, might *327desire to keep tbe policy alive beyond tbe seven-year period upon wbicb a presumption of death may be claimed. We discover no valid reasons why tbe insurance- contract cannot, by agreement with tbe insurer, be continued in force as a subsisting and valid one beyond tbe seven-year period. This ' conclusion, we think, was properly adopted and sustained in tbe *White Case, supra.*Since tbe contract of insurance can be so treated by tbe parties, no cause of action can accrue for recovery of premiums and assessments paid thereon after death of tbe person insured until tbe contract is terminated by either party. Applying these considerations in tbe instant case, it follows that tbe defendant and tbe plaintiff and her sister by mutual arrangement treated tbe certificate as valid up to tbe time tbe plaintiff declared it due and demanded payment of tbe proceeds thereof and repayment of tbe assessments and defendant’s rejection of tbe demand on November 19, 1914; and that no action for recovery on tbe .policy and of tbe assessments paid after tbe death of Thomas J. White in 1901 accrued until such demand was rejected by tbe defendant. Under these circumstances plaintiff’s cause of action is not barred by tbe statutes of limitation.

Tbe trial court allowed interest to plaintiff from tbe date of tbe payment of tbe several assessments for wbicb recovery, is awarded in this action. This we consider to be erroneous. Interest should be allowed on tbe sum of tbe assessments paid only from November 19, 1914. Tbe amount of interest allowed by the court is $92.52. Tbe proper amount is. $36.32. Tbe judgment should be modified, therefore, by deducting tbe sum of- $56.20, leaving tbe sum of $245.YY as tbe correct amount of recovery. As so modified tbe .judgment stands affirmed.

*By the Gourt.*— It is so ordered, tbe appellant to recover eosts in this court.