178 Iowa 1156 | Iowa | 1916
' "By the court: The plaintiff have leave to amend their petition as to the interest on the- amount ‘claimed,' to correspond with the proof” — which would-make it $1,813.
"The jury returns’a verdi'ct'in favor- of plaintiffs in the amount of’’$1,813, under instructions-of'the court. Exceptions.”
We-‘ cannot agree that there Was' á 'failure to-rule/ -The plaintiff asserted that $1,813 was what'was due her. ' The court permitted amendment justifying-that recovery. The jury returned a verdict for plaintiff in just that amount, and
Division II.
, In essence, the affirmative defense is that a valid change wras made raising the assessment of Cook; that he had legal notice of the change; that he is es,topped to assail .the legality o.f the change because, after he was advised of it, he paid the assessment exacted by it, and, finally, having been ’duly notified.of the assessment for September, .1907, he failed to pay fhe„same; that thereby and therefore he was legally suspended; and that he wag never reinstated. The.. essential counter-position is that the change was illegal; that there.was no .legal .notice of it, — no evidence of the acts relied upon for acquiescence, waiver and estoppel; that the illegal acts of the defendant operated as a renunciation and breach of the contract which absolved assured from paying the unlawfully. increased assessment; and that, in view of the attitude Qf .the,, defendant in, insisting upon enforcing the illegal change, it .would have, been idle to have paid or tendered payment at the old rate. There was no reply, but these defenses are all denied by operation of law, and defendant has the-burden.
II. In its amendment to abstract, appellant sets out that its constitution provides:
9’ amendments to íegaiíty: bur-. den of proof. “First. The Grand Lodge may enact, alter or amend such' by-laws as do not conflict with the constitution, provided that they shall be proposed in writing at a stated session of the Grand Lodge, and that two thirds of the representatives vote in favor thereof. Second. The constitution cannot be altered or amended unless such alterations or amendments shall be made in writing at a regular session, signed by three representatives; the question shall be taken on their adoption, and if approved by two-thirds vote of all the representatives present and entitled to a vote, it shall become a part of the constitution.”
It may be assumed that the constitution was changed to provide for a higher rate of assessment, and for a lien that operated to scale the face- of the certificate. But there is not a scintilla of evidence either that said requirement was complied with literally, substantially, or at all, op what the articles -"of incorporation are or authorize.
In the second amendment to petition, the plaintiff makes a rather ambiguous statement. It is this:
10' amenmnentto partial admis “And said defendant then claimed, and now-claims, that it had the right and authority to make said changes, and so amend said constitution, That said changes were by written resolutions made and adopted by said Grand Lodge at its said regular meeting in May, 1907.”
The ambiguity is whether this is an admission that the changes were made by á written resolution, or a statement that defendant claims this was 'done. We incline to think the latter is the fair construction of the whole paragraph. But if that be not so, it is still no more than an admission
‘ ‘ I know it was mailed; I seen that it was mailed; I did not put it in the post office myself nor go with them and see them put it in; did not see them put it in at the post office. Q. You cannot swear positively that that paper you have testified to, a copy of the Herald, was put in the post office and addressed to Mr. Cook? A. I can, just as positively as anything else we mail. I saw it put on the mailing list which 'was made up in the office by my men in the office and I stand and look at them do it. They had his name on the*1167 list as one of the persons to whom the Herald was to be mailed. Q. After that mailing list was made np, you did not see this paper put in the post office ? A. No, sir, I didn’t. Nor saw it put into any post office or receptacle- for United States mail. I have no personal knowledge that that paper was mailed. He got the others, and my conclusion is he must have got this with, them, but I don’t know of my own personal knowledge that this particular paper, or a paper of this date, was put in the post office, only by following the paper. ”
If for no other reason, there is a failure to prove proper mailing because there is no evidence of what post office the paper was addressed to.
2.
Some reliance is placed upon'a letter claimed to have been addressed to Cook, not at Baldwin, but at Monmouth, Iowa. Baldwin, and not Monmouth, is the required address. There is nothing to show who sent this letter set out in the pleadings, except a-statement in abstract that “there was sent to him on October 22, 1907, a letter, a copy of which is as follows. ’ ’ The letter is not signed ;• there is -no indication whom it is from; and moreover we are unable to find any evidence that it ever existed.
3.
It is apparent that the transcript -proper and its certifications do not advise us that this-.copy of the Herald was. put in evidence, nor of its contents-; and that-all we have'is a statement of- the clerk that the paper'-attached, which-is not, certified,.to-by judge and reporter, is a correct copy of Exhibit 3, on file in this cause in his office. -
Y. Defendant pleaded that there was- an application-, which was the basis of Cook’s being received -as a member,- and of- issuing- the-certificate, and that it bound Cook,-'as a condition to his right to participate in the benefit fund, to-compliance on his part with all the laws, regulations and requirements which are or may be enacted by the order.. It i'S urged that this application estops the plaintiffs -to question the power and authority of the Grand Lodge to adopt a schedule of rates, in 1907, .or to make the other alterations that were then made. As an alternative proposition, it.-is said that the constitution, -by-laws and the terms of the appli-; cation made it the duty of Cook to obey and comply with all-laws, etc., then-in. force, and such as might thereafter be. adopted. ' . ■ . -
■ Before entering upon the claim, as to what -the applica7. tion alleged to have been-signed by Cook bound him .to-with reference to future -changes, we have the question whether there is competent evidence of what-the covenant of-the .application in said respect was. We find.that the application is; preserved and certified to precisely as is the copy of the official paper.. ■ It follows that we can give the application
‘ ‘ Having failed to pay the September assessment in 1907, as required by the rules, regulations and constitution and by-laws of the order, his .certificate was, on the 27th day of September, 1907, annulled, as provided by the constitution and by-laws of the order, for failure to pay said assessment for said month of September. ”
In the motion to direct verdict for defendant, it is presented that the plaintiff is not entitled to recover because it appears from the record and the evidence that Cook failed to pay the assessment for the month of September, 1907, and was, on the 28th of September, 1907, suspended, and not thereafter reinstated. It is conceded that no payments were made after August, 1907. But we find no evidence that Cook was ever suspended, or, if suspended, that he was not reinstated. Nor is there evidence that the regulations in question were ever lawfully adopted. We find no notice of this assessment except such as said copy of the Herald may constitute. There is a concession that same contained a notice ■of some assessment. Since it was a publication in June, 1907. it would be strained to assume that it contained a notice of assessment for September, 1907. ’And it has been seen that there was no evidence that the paper was mailed, as required by the laws of the society.
2.
Where the insurer refuses one payment, claiming a policy is forfeited, there is no forfeiture for failure to tender payment of the premium thereafter. Guetzkow v. Michigan Mut. L. Ins. Co. (Wis.), 81 N. W. 652; and see Pilgrims’ H. & L. Ins. Co. v. Scott (Ga.), 78 S. E. 469.
Where the association attempts to expel a member and the proceedings are void for irregularity, and there is a subsequent refusal to pay dues, the failure of insured to continue to tender dues cannot prejudice his rights. Langnecker v. Trustees of Grand Lodge A. O. U. W. (Wis.), 87 N. W. 293.
Where the assessment is irregular and void, the insured is not required to malm tender. He can only be required to pay legal assessments. He is not required to obtain data upon which to figure out correctly what would be the proper amount to pay or tender, or take chances on his tender’s be
We held, in Underwood v. Iowa Legion of Honor, 66 Iowa 134, that, where plaintiff was entitled to recover unless there was a forfeiture of membership by neglecting to pay an assessment,'where'the pretended assessment was not made in accordance with the provisions of the constitution of the order, there was no forfeiture of membership by neglecting to pay it. • •
We think-that Fort v. Iowa Legion of Honor, 146 Iowa 183, at page 184, point 6, holds that, where there is a repu-. diation, there need be no further assessment tendered under the old rate.
3.
Something is -said that, since the plaintiff asserts that the constitution 'was illegally changed, assured'.must have gotten the knowledge' through the receipt of the. Herald; that, if he refused because of the changes, he knew of them. And, oh the other hand, if he did not know .of the changes,' then his failure to pay the September assessment was not induced by the change, and was a voluntary refusal to pay whem.he had the election either to pay or not to pay. ■ '
Next, it is argued that, if. the act of reducing the certificate was illegal, and the act of increasing the assessment was valid, assured should have paid the increased assessment to keep his certificate in force, and to avoid forfeiture for nonpayment; that appellant does not understand appellee to base himself on the increase in assessment (because he ratified that), but that his claim of renunciation is based on the theory that the face of. the policy was reduced; and that, if this is his contention, it follows that it was his duty to pay the assessment at the increased rate. A.m,ong other faults, this is an assumption, which'unduly ..limits, the claim, made by the appellees. They seem to rely upon both changes.
1.
‘ ‘ The fact that one party has been mak- . mg illegal demands on another, and that the latter has heretofore complied with them, imposes no legal duty upon him to continue to comply with them.” Schultz v. Citizens’ Mut. L. Ins. Co. (Minn.), 61 N. W. 331, at 333.
The simple fact that assured had paid mortuary assessments higher than he was bound to under his certificate in a life insurance company, in the absence of any showing of fraud, or that anyone had been misled by his conduct, did not estop him from contesting subsequently assessments greater than he was bound to pay. Covenant Mut. L. Assn. v. Kentner (Ill.), 58 N. E. 966.
That a member of a mutual fire insurance company paid prior assessments, invalid because an amendment to create a fund for payment of future losses was included therein, does not estop him from denying the validity of subsequent similar
In Smith v. Supreme Council, 88 N. Y. Supp. 44, it was attempted to make ratification of scaling a certificate by showing a payment thereafter of a reduced assessment, and it was held that this was not to be done, without proof of how notice of change in by-law was to be given, or that, if there was provision, that it had been complied with; and thát, in the absence of proof of knowledge on the part of the member that the reduction in the assessment was solely occasioned by the reduction in the indemnity provided by the certificate, the assured had no notice of the change' in the law, and his contract'rights could not be- arbitrarily changed and defeated upon the theory 'of acquiescence, ratification or estoppel.
The secretary of defendant testified that there was no proof of death or notice of death given defendant. He was asked whether there Was any change in the bylaws in reference to proof of death, and, if so, in what years. He answered, “in -1907,” and that Sec. 6 on pages 10 and 13 shows,- and that the by-laws on said pages were.not in force in September, 1912; but that the law in force at the time of death was the same as the law of 1912; that he was not notified of the death of Cook, officially, but received a letter stating'he was dead, writtéii by the attorney-for plaintiff before-suit was begun; that he docs not remember as to claiming a. certain amount; that he thought there was no use paying any attention to it because Cook had been suspended, and the let- ■ ter-was answered, saying he was suspended, and that he knew it. Waiving whether the record presents this point for consideration, there was certainly no requirement that a uséless formality be gone through with — a formality, since liability
Makely v. Supreme Council Legion of Honor (N. C.), 45 S. E. 649, holds that a mutual benefit insurance association cannot amend its by-laws so as to reduce the amount of a certificate without the insured’s consent, and the fact that its promise is only to pay an indefinite sum not exceeding the amount named in the certificate is immaterial. Covenant Mut. L. Assn. v. Kentner (Ill.), 58 N. E. 966, holds that where, in an action against an assessment life insurance company on a certificate by which it agreed to pay the proceeds of an assessment, not to exceed $5,000, there was no evidence as to what an assessment would provide, plaintiff was entitled to recover a judgment for the full amount of the certificate; the fact that an assessment would have produced less than the face of the certificate, if true, being a matter of defense. So does Covenant Mut. Life Assn. v. Kentner (Ill.), 58 N. E., at 969. These dispose of this assignment.
The judgment is — Affirmed,.