73 P. 65 | Kan. | 1903
The opinion o£ the court was delivered by
Arthur C. Powers became a member of the Fraternal Aid Association on October 29, 1895, and died on March 10, 1900.. His membership was in the local council at Garden City and the beneficiary designated was his wife, Edith E. Powers. In the certificate it was stipulated that in case of his death she should be entitled to a benefit not exceeding $2000. Among the prescribed conditions, Powers was required to pay all assessments and dues and to conform to certain other requirements expressed in the certificate of membership and in the by-laws of the association. After the death of Powers payment of the benefit was resisted on the ground that the required payments had not been made by Powers in his lifetime ; and further, that proofs of death had not been made, in compliance with the terms of the contract of insurance. The jury specially found that all dues had been paid, and that he had paid more than he was required to pay.
It is contended that there was no testimony to support the finding of payment, and that the court erred in refusing peremptorily to instruct'the jury to find for the defendant. The record is scarcely in a condition to warrant an examination as to payments, as it shows upon its’face that all of the testimony introduced, and which was before the jury for its consideration, is not included in it. We hg,ve looked at the testimony preserved, however, and are of the opinion that it is at least sufficient to uphold the findings and verdict. The payments of the member were made to the local
In establishing the payments, testimony was offered to show that at different times excess payments were made to, and received by, the local secretary for dues and assessments. The'contention is that these payments should not be credited, because they were paid in before assessments had been made or dues had accrued. A member cannot be regarded to be in default who has paid in money to be applied on dues and assessments, and which was received and held by the proper officer for that purpose. It would be a strange rule that would declamé a forfeiture of contract rights for non-payment of dues and assessments where the money was received and held by the agent of the association for the very purpose of liquidating
The matter of proof of loss is not a very important one in this case. In the first place, the beneficiary certificate does not prescribe a time within which proofs of death shall be made, but simply states that payment shall be made “within ninety days after satisfactory proof of his death.” -,Again, the by-laws provide that upon the death of a member the local president, local secretary and local examiner shall constitute a committee to inquire into the facts regarding the death and to make report to the officers of the general council. No specific provision is found requiring the beneficiary to furnish proofs of death within a specified period, or providing for forfeiture in the event of a failure to make it within a limited time. Aside from these considerations there were actual knowledge of the death and an extended examination by the officers of the association. The officers of that organization were not in a position to insist upon a forfeiture if the contract of insurance made the failure to provide proofs within a fixed time a ground of forfeiture.
These considerations cover the points properly raised by plaintiff in error, and from an examination of the record we are clearly of opinion that no prejudicial error was committed.
The judgment is affirmed.