151 P. 353 | Utah | 1915
This action was commenced by the plaintiff as the widow of one William J. Moran, deceased, late of Ogden, Utah, to
The defendant in its answer admitted its corporate existence, but denied any knowledge concerning the death of the deceased, and also denied any knowledge "concerning the matrimonial relations” of plaintiff and the deceased. The defendant also admitted the existence of the by-laws pleaded by the plaintiff relating to the effect, of her marriage with the deceased. The defendant then, with much particularity, set forth that it is a fraternal and benevolent association with certain laws, rules and regulations which govern and are imposed upon members, large portions of which are pleaded. It then affirmatively alleged as follows:
"That between the times in said complaint mentioned,
The defendant also admitted that it had denied liability under the benefit certificate, and denied all the allegations of the complaint “not specifically admitted.”
When the case was called for trial, the defendant also offered to return to the plaintiff ‘ ‘ any and all insurance assessments * * * from and after the time that said William J. Moran did ipso facto forfeit his membership in said order by reason of his failure” to pay his assessments.
Upon substantially the foregoing issues, the parties proceeded to trial. The plaintiff produced, and, over the objections of the defendant, was permitted to introduce in evidence, the benefit certificate in question. Plaintiff proved that she and the deceased were married; that he died on the 22d day of June, 1913; and that at that time they were husband and wife. She also produced and introduced in evidence a receipt signed by the financial secretary of the local council of which the deceased was a member, dated June 16, 1913, whereby it was acknowledged that the deceased had paid his dues and assessments up to the 1st day of that month, which kept him in good standing during the whole of that month, and that the defendant had received notice of the death of the deceased, and that it had unconditionally rejected plaintiff’s claim and
After having submitted the foregoing evidence, the plaintiff rested. The defendant then moved for a nonsuit for the reason that the plaintiff had failed to prove that she had submitted proofs of death. Plaintiff’s counsel contested the motion upon the ground that in denying unconditionally liability under the benefit certificate the defendant had forfeited oi waived its right to insist upon proofs of death. The courl so ruled and denied the motion.
The defendant then produced in evidence certain portions of the constitution and by-laws of the defendant. The parts introduced in evidence are quite voluminous, and we shall only insert those parts here which we deem material to an understanding of this decision. They are as follows:
"Any member of this order shall ipso facto forfeit his membership in the order: Who fails, neglects or refuses to pay his proportionate part of any assessment for thirty days from the date of mailing or transmitting the notice of assessment by the secretary of his council, or of the regular monthly assessment, within thirty days from the first day of the month in which levied. * * * No money shall be paid or transferred from the treasury of any council (except such moneys as the council is called upon to regularly pay for its current expenses and as provided by the laws of the order, or for purposes approved by the national council or board of directors) unless by a two-thirds vote of the members present and voting at a regular meeting held subsequent to a regular meeting at which notice in writing of a resolution or intention to pay or transfer such money and the purposes and amount to be paid or transferred shall have been given and regularly read. * * * A council may authorize -the payment of a member’s assessment as a loan or gift, from its general fund, to a member not to exceed six assessments, but such payment must be made to the financial secretary before the time fixed for such payment to avoid suspension under the law. Every
The defendant also produced other evidence tending to show that the deceased had committed suicide by taldng carbolic acid. It also submitted evidence to the effect that after the deceased was accepted as a member he had forfeited said membership by failing or -neglecting to pay his assessments as required by the constitution and laws of the defendant. In that connection, the hooks of the local council of which the deceased was a member and an officer, to wit: secretary, were produced, and from the entries therein it appeared that the deceased’s account during the years 1905, 1906 and 1907 frequently remained unbalanced for several months at a
The plaintiff contested the claim of suicide, and, over defendant’s objections, was permitted to show, both on cross-examination of its witnesses and by her own witnesses on rebuttal, what the mental condition of the deceased was immediately before and at the time it is claimed he took the carbolic acid.
The defendant’s counsel contend that the evidence is conclusive that the deceased took the carbolic acid with suicidal intent, while plaintiff’s counsel contends that the inferences to be deduced from all the evidence point as strongly to an accidental as they do to an intentional taking of the poison,
The court submitted to the jury the question of whether the deceased had committed suicide, and the further question that, if they found that he had committed suicide, whether his act in doing so fell within the exception we have quoted from the laws of the defendant. The court took from the jury the question of whether the deceased had forfeited his membership for non-payment of dues and assessments, and ruled as a matter of law that under the undisputed evidence the deceased was a member in good standing at the time of his death. The only questions that were submitted to the jury were whether the deceased committed intentional suicide, and, if he did, whether his act was excused under the laws of the defendant. The jury found the issues in favor of the plaintiff, and the court entered judgment accordingly, from which the defendant appeals.
Numerous errors are assigned; but counsel, in their brief, have reduced them to a number of propositions which we shall now proceed to consider.
, It is first contended that the plaintiff was not the real party in interest, and hence the court erred in permitting her to recover. There is no merit to this contention.
It is next contended that the court erred in admitting plaintiff’s evidence respecting the deceased’s mental condition at and immediately before his death for the reason that no issue was presented in that regard by the pleadings. It is contended that plaintiff’s evidence upon that question
It is also insisted that the court erred in submitting the case to the jury at all for the reason that the plaintiff failed to prove that she had submitted proofs of death. It is the settled law of this jurisdiction that, where the insurer
It is also contended that the court erred in excluding a certain document purporting to be proof of death which was submitted to the defendant on behalf of the father
It is next urged that the court erred in its charge to the jury upon the question of burden of proof respecting the question of suicide and plaintiff’s mental condition. The court not only complied with the settled law in that regard, but it strictly followed defendant’s by-laws upon that subject.
Finally, it is vigorously contended that the court erred in not ruling as a matter of law that the deceased had not complied with the laws of the defendant, in that he failed to pay his dues and assessments within the time required
One of the undisputed facts is that the deceased, at the time when the books of the local council show that he failed to pay his assessments promptly, was earning a salary which was payable out of the local treasury. Now we have seen that the local, or so-called subordinate council, had the right to promulgate by-laws, rules and regulations “for its own government” and “for the proper conduct of its affairs,” so long' as such laws, rules and regulations in no way conflicted with or impaired the laws of the national council or the enforcement, thereof, which, of course, was paramount. ' While it is made reasonably clear that the national council by its laws undertook to control the subordinate or local council in applying; its general fund for the payment of the assessments of its members, yet we can see nothing in the laws of the national council whereby the local council was prohibited from applying any money in its general fund to the payment of the assessment of a member or officer in case the council was indebted to such member or officer for salary or otherwise,, if such a course was mutually agreeable. All we really have,, therefore, is that, as a matter of bookkeeping, it is made to-appear that while the deceased was earning a small monthly salary his assessment account at times remained unbalanced for some time, and that during all of which time the local council forwarded his assessments regularly and timely to the national council. While it is true that the general fund in the local treasury was guarded, if not entirely controlled, by the laws of the national council, yet, in so far as that fund was; to be used in payment or discharge of some obligation or debt owing by the local council, it could pay or discharge the same in the manner its members saw fit, regardless of the laws: of the national council, so long as the acts of the local council did not conflict with the laws of the national council. At least, so far as shown, there is nothing in the laws of the national
The foregoing are strong circumstances from which it may legitimately be inferred that while the deceased was secretary some arrangement either tacit or otherwise, existed between him and the local council with regard to the payment and crediting of his dues and assessments as indicated. Nor does the fact that the laws of the national council authorized the local council to pay a member’s assessments as a “loan or gift from its general fund not to exceed six months, ’ ’ and that the general law further provided ‘ ‘ every by-law or standing resolution of any council authorizing the payment of a member’s assessment as a loan or gift from its general fund as herein provided shall be submitted in duplicate to and approved by the board of directors before it shall become operative,” affect the foregoing conclusions. Indeed, when all the laws are considered together, the foregoing conclusions are strengthened rather than weakened. In this connection the laws also provide that, although the payment of assessments be duly authorized, yet, if they are not timely remitted to the national council, the member whose assessment is authorized to be paid out of the general fund will “stand suspended.” It is thus manifest that what the national council insists upon is prompt payment of the assessments, and that the condition it imposes on local councils to guard their general funds are precautionary merely.
But it is contended by counsel for defendant that, inasmuch as it was not shown by plaintiff that a by-law or resolution was adopted and approved as required by the national council, therefore the payment, although authorized and made by the local council, was nevertheless void, and the deceased’s mem
The contention is, however, made that in this case the deceased’s membership was ipso facto forfeited. But what sig-
“Wherever there is any variance between the rules of equity and the rules of common law, in reference to the same matter, the rules of equity shall prevail.”
It matters not therefore, in this jurisdiction, whether the action is one in equity or one at law;' the rules of equity respecting forfeitures must prevail. It seems to us that both the laws of the national council as well as the undisputed facts bring this case squarely within the principles we have just discussed. If a forfeiture can be enforced in this case, we can see no reason why it should not be enforced in every case where a member omitted to pay an assessment promptly within the time fixed by the laws of the order, although he made timely arrangement with his local council to pay the same and it was in fact timely paid to the national council. We think that, under the undisputed facts, the District Court did not err in ruling that the claim of forfeiture was stale and not enforceable. If, however, the transaction here in question be viewed in the light of the familiar principles which pertain to the relationship of principal and agent, then again the result must be the same. If it be assumed that in paying the assessment in question the local council was the agent of the deceased, then it in fact did no more, than pay the amount of the assessment for him to the national council, and in view that it did so timely we cannot see how the national council can complain, although it in no way was bound by the act of the local council. If, upon the other hand, it is assumed that the local council was the agent of the national council, and in what was done the local council transcended its authority and thus did not bind its principal, how can the national council complain? The national council certainly ■received all that it was entitled to, and received it within the time fixed by its own laws.
Must not a principal at some point of time ascertain whether the business acts of his agent were authorized, and in case there is neither fraud, concealment nor misrepresentation, and the rights of third persons are involved, must not such prin
For the reasons stated, the judgment is affirmed, with costs to respondent.