108 Kan. 819 | Kan. | 1921
The opinion of the court was delivered by.
This is an action by Sallie B. Ellis to recover on a beneficiary certificate issued by the Fraternal Aid Union on the life of her son, Ralph Ellis, who entered' the military service and died in France on August 13, 1918, of wounds received in battle. She recovered a judgment, from which defendant appeals.
Errors are assigned on rulings of the court relating to the interpretation of a resolution and rule of the defendant suspending a section of its constitution which prohibited the insurance of those engaged in military service and provided that the certificate of a member in entering that service should at once become void. The principal question involved is raised upon defendant’s demurrer to plaintiff’s reply, and also upon the instructions given by the court, and as the several rulings present the single question they may be considered together.
“Now, Therefore, Be it resolved by the Advisory Board of the Fraternal Aid Union, in pursuance to the power vested in said board by its constitution, the said board hereby suspends and repeals that portion of its constitution, to wit: That portion of section 56 which classes army officers, soldiers, sailors, naval officers, aeronauts, aviators and those engaged in submarine work as being engaged in prohibited occupations, be and the same is hereby suspended and repealed for a period during the war and as long thereafter as it may be deemed advisable by said Advisory Board; and
“Be It Further Resolved, That all the members of The Fraternal Aid Union shall remain on the same basis as to rates for said period, for the purpose of liquidating its mortuary liability and other claims, as they are at the present time.”
“All members that have in the past paid the extra war premiums will have their extra premiums returned to them or they can apply it on future payments.”
If the defendant had declared that in dealing with its members it would treat the military restriction as removed for the period of 1918, it could hardly be contended that the repeal or removal was for a less time than the whole of that year. We are inclined to take the view of the trial court that the resolu
Exception is taken to a ruling excluding evidence to the .effect that in 1917 the advisory board of the union enacted a resolution providing for the payment of extra premiums-by members entering military service, but not required tó leave this country. The evidence offered might have been received without error as tending to show the course of action of the defendant on a related matter, but the plaintiff relied alone on the resolution of the union adopted in 1918. It was not claimed that the insured had paid any extra premiums and in no event could the plaintiff claim any rights under the excluded resolution. The exclusion of the evidence cannot be regarded as material error.
There is a contention that under the evidence the court erred in its instructions relating to the payment of assessments. There was evidence to the effect that Mrs. Martindale was the secretary of the lodge to which the insured belonged and the representative of the defendant in the collection of dues and assessments, having her office in the same building with the grand-lodge officers. Previously a fund had been provided by that council to be used for the payment of assessments of out of town members, but that practice had been abandoned several years prior to 1918. Afterwards the secretary made a practice of visiting the places of business or homes of members for the purpose of collecting assessments. In some cases where members were not found or not prepared to pay and had requested Mrs. Martindale to advance the assessments, she had made the payments, but she stated that in no instance did she advance any assessment for any member unless the advancement was requested and that she suspended every person who did not either pay as required by law or arrange with her to advance the money. There was testimony tending to show that Mrs. Martindale had upon request advanced and
There is an objection to an instruction in which the court said in substance that the plaintiff claimed that the defendant through its agent, Mrs. Martindale, had for several years prior to the death of the insured pursued a course of .conduct in transacting business with the members of the Union as would lead a man of ordinary prudence to believe that the order would not insist upon a rigid and exact compliance with the bylaw in that respect, and the court then advised the jury that if the defendant or its agent through a custom or course of conduct led the insured to believe that assessments might be paid and would be received at other times than those specified in the contract or by-laws, the defendant would be estopped to claim a forfeiture because the assessments were not paid at the times stated in the by-laws. The objection that this instruction in effect told the jury that an estopping course of conduct had been proven by the testimony is not warranted. The court stated the claim of the plaintiff and left it to the jury to determine whether the claimed course of conduct had been established by the evidence. The rule of law announced by the court is well within the previous decisions of this court. (Life Insurance Co. v. Twining, 19 Kan. 349; Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160; Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219.)
An instruction as to the payment by Ruth Ellis for the advanced payment of assessments to the secretary of the union,
Finding no material error in the record, the judgment of the district court is affirmed.