Earney v. Modern Woodmen of America

79 Mo. App. 385 | Mo. Ct. App. | 1899

BIGGS, J.

The defendant is organized under the laws of the state of Missouri as a fraternal benevolent association with an insurance feature. In January, 1897, Thomas P. Earney became a member of the order. On that day the defendant issued a certificate of insurance on his life for $1,000. Margaret A. Earney and Riley J. Earney, the plaintiffs herein, were named as equal beneficiaries. Thos. P. died August 9, 1897. Margaret A. assigned her interest in the insurance to the plaintiff. The present action is to recover the amount of insurance. The admissions of the defendant were sufficient to make a prima facie right of recovery against it. The answer set forth certain by-laws of the order to the effect that the members became liable to pay annual dues levied for the purpose of paying the expenses of their local lodges and also all assessments levied by the board of directors of the order; that the assessments were to be paid on or before the first day of the month following the levy and notice thereof; that if a member should fail to pay such dues and assessments when due, then such member should stand suspendéd and its certificate should be void during the continuance of the suspension. Continuing the answer averred that certain dues and an assessment which had been duly levied and of which Thomas P. Earney had legal notice, were due and payable on the first day of July, 1897, and which amounts Earney had failed to pay, by reason of which he became suspended as a member of the order and the certificate of insurance on his life rendered void. This defense was put in issue by the reply. At the conclusion of the testimony the court instructed the jury that there was no evidence to show that there was any local tax fund for dues at any time levied by the local lodge to which Earney belonged, and that there was no evidence to show that Earney had been notified of. the alleged July assessment. These instructions were equivalent to a direction to find for plaintiff, which the jury accordingly did. Judgment was rendered upon the verdict and the defendant has brought the case here on writ of error.

Fproo?Eof The correctness of the instruction concerning dues is not controverted in this court. It is insisted, however, that there was evidence that Eamey had received notice of the July assessment, and therefore the instruction concerning the assessment was unwarranted. And the further complaint is made that the circuit court committed error'in excluding the declarations of Earney tending to prove that he had received notice of the assessment. As to the mode and manner of notifying members of assessments the by-laws provide that notices of each assessment shall be published in a certain newspaper which is owned and published monthly by the society, and that a copy of this paper should be mailed to each one of the members at his last known postoffice address. There is also a by-law that provides, that the affidavit of the publisher of this paper as to the publicationof notices and the mailing of the paper should be accepted as conclusive evidence that notices were published and that the papers were mailed as required by the laws of the order. To prove notice to Eamey of the July assessment the defendant offered and read in evidence the affidavit of the publisher to the effect that the July assessment was published in the June number of the paper, and that he mailed a copy of the paper to Earney, directed to Oabool, his postoffice address. As evidence tending to prove that Earney had actually received notice of this assessment the defendant offered to show by witnesses that his attention was called to the July assessment, and that he had failed to pay it, and that he thereupon expressed an intention to sever his connection with the lodge. Both questions presented are interesting and there are authorities supporting both sides of the questions. We are not required, however, to pass on them for the reason that the defendant failed in its defense at a vital point, and therefore the judgment is for the right party however erroneous the rulings of the court may have been. A material fact in the defense was that an assessment payable on tbe first day of July, 1897, was levied or ordered by the board of directors o'f the defendant. The respondent asserts in his brief that there was absolutely no proof of this alleged fact, that there is nothing in the appellant’s abstract of the evidence tending to refute the statement. We have also read the transcript, and if there is any such proof there, it has escaped our notice. Hence the assignments must be overruled for the reason that the verdict was the only one that could have been rendered, even though the rejected testimony had been admitted and considered by the jury. Stokes v. Burns, 132 Mo. 214. The judgment of the circuit court will be affirmed.

All concur.