8 Ga. App. 149 | Ga. Ct. App. | 1910
Laura Hutchings Bobo brought suit against the Locomotive Engineers’ Mutual Life and Accident Insurance Association, as the beneficiary in a policy of insurance on the life of her brother^ W. H. Hutchings. A demurrer to the petition was overruled, and exceptions pendente lite preserved. The jury found a verdict in her favor for the full amount of the policy, and the defendant’s motion for a new trial was denied. We may dispose of the exceptions arising on the judgment overruling the demurrer
“The record of an assessment of a xnutal insurance association, reciting that the resolution ordering the assessment ‘was unanimously adopted by the directors as a body, and by the executive committee/ is prima facie evidence against the members of the association.” Van Frank v. Association, 158 Ill. 560 (41 N. E. 1005); Anderson v. Mutual Reserve Fund Life Association, 171 Ill. 40 (49 N. E. 205). It would seem from these authorities, as well as on principle, that when the association published in its monthly Journal, recognized and treated as its official organ, the assessments to pay losses, the presumption would follow, in the absence of an attack on the legality of the assessments otherwise, that all necessary steps preliminary to making the assessments had been duly taken by the association.
It is contended in the next place that the general register kept at the home office showed that the association had received the asscss.ment from the insured for the month of July on his policy. The local secretary at Cedartown testified positively that the insured had not paid the July assessment; that he himself had paid it after the death of the insured, and it was placed upon the general register after the false report of the payment bj' the insured had been received by the company from its agent at Cedartown. In the light of this evidence, it can not be rationally assumed that the insured did in fact ]iay the July assessment.
We have thus considered what we think are the material issues under the evidence in this case. There may have been inaccuracies in some of the instructions given by the court in his charge to the jury, though the charge as a whole seems to have been full and explicit as to the material issues in the case. There may be some merit in some of the numerous assignments of error, but on the main questions which should control we are convinced, from an examination of all the facts, that the forfeiture of the.policy set up by the defendant was clearly and most satisfactorily shown; that the levy of the assessments which were not paid by the insured was made according to the by-laws of the association, and that there was no evidence whatever of any waiver by the association of the forfeiture of the policy which resulted from failure, on the part of the insured or the beneficiary, to pay the assessments lawfully made. Tinder the view we entertain of the law applicable to these controlling questions, the facts demanded a judgment for the defendant.