168 Iowa 579 | Iowa | 1915
The plaintiff is the beneficiary in a benefit certificate for $1,000.00 issued by the defendant to her daughter, Fern Teter. The daughter died and the defendant refuses to pay, and plaintiff brings this action upon the certificate to recover the amount therein provided.
The defendant is a fraternal benefit society organized under the laws of this state, and doing business in this state.
On the 22d day of September, 1911, Fern Teter applied to the defendant to become a member of defendant’s society, and for a certificate therein, and on the 13th day of October, 1911, the defendant company issued to said Fern Teter a certificate, the material parts- of which are as follows:
“Witnesseth: That in the pursuance of the Articles of Incorporation and Constitution and By-Laws of said Society, and upon the representations contained in the application for this certificate, a copy of which is hereto attached, which articles of incorporation, constitution and by-laws, and all amendments hereinafter made thereto, and the said application are hereby referred to and made a part of this contract, Fern Teter of Ottumwa, Iowa, is accepted as a member of Home Lodge No. 1 located at Cedar Rapids, State of Iowa, and is entitled to all the rights, benefits, and privileges of a beneficial membership in fhe Fraternal Bankers Reserve Society, and has designated as beneficiary under this certificate, Katherine Teter, Mother, to whom shall be paid, upon satisfactory proof of the death of said member while in good standing, the sum of One Thousand Dollars, less the amounts of any and all disability benefits paid to said member during her lifetime, said payment to be made in accordance with the provisions of the By-Laws of the Fraternal Bankers Reserve Society.”
To which certificate was attached the following provisions and made a part thereof:
“1. One monthly payment or assessment of the amount stated on the face hereof shall be paid upon the acceptance
“2. Any beneficial member of this sóciety, who, on the expiration of the last day of any calendar month, shall have failed to make such payments as have been regularly required as provided by the Constitution and By-Laws of this Society, or shall have failed to pay the amount of local lodge dues required by the lodge to which such member belongs, shall immediately be and become suspended without any notice whatever, and the certificate of membership of such member shall be absolutely null and void from the date of such suspension, and this Society shall not be liable for any benefits whatever under said certificate unless and until said member shall have fully complied with the requirements and provisions set forth in the Constitution and By-Laws of this Society for the reinstatement and restoration of said member and said benefit certificate.
“3. A member who has been suspended for a period not exceeding one month, may be reinstated by furnishing a certificate of good health on the form provided by the Supreme Lodge, and paying arrearages and making payment on certificate at least one month 'in advance.
“A member who has been suspended for a period exceeding one month but not exceeding three months, shall, in addition to the above requirements for reinstatement, also furnish a certificate of good health from a physician, satisfactory to the society.
“A member who has been suspended for a period exceed
“Provided that no reinstatement shall be deemed complete, restoring a suspended member to beneficial membership until his application for reinstatement and certificate of good health shall have been received and approved by the Supreme Medical Examiner.”
This is the certificate and the conditions of the certificate upon which suit is brought.
The plaintiff in her petition says that the defendant is a fraternal benefit society, organized in this state and under the laws thereof, with its principal place of business at Cedar Rapids, Linn county, Iowa; that the plaintiff’s daughter procured a policy in said defendant company for the benefit of this plaintiff; that the home of the plaintiff and her daughter was at "Wapello, Iowa; that due proof of death has been made and the company refuses to pay; and she asks judgment for the amount of the policy.
The defendant admits that on the 22nd day of September, 1911, Fern Teter made application to the defendant for membership in said society; that the application ivas made for membership in the home lodge of defendant, which is located at Cedar Rapids; that a certificate of membership, in compliance with such application, was written by defendant and forwarded by one R. D. Taylor, Acting Secretary of the Home Lodge, to one Gale B. Brown at Ottumwa, a duly authorized and acting deputy of the defendant, for delivery to said Fern Teter upon her compliance with the rules, regulations, requirements and conditions of such certificate, and the constitution and by-laws of the defendant association. (Defendant hereupon sets out the by-laws to which reference is made.)
Defendant further alleges that the by-laws provide that
Defendant further states that if she ever became a member she forfeited all rights or claims against the defendant, if any she had, by reason of her suspension on account of her failure, neglect and refusal to make the monthly payments, and to comply with the provisions of the certificate and of the constitution and by-laws of the association, and that she never made application to be reinstated, and never was reinstated, and the defendant denies that Fern Teter was, at the time of her death, or at any other time, a member of the association or entitled to any of its benefits.
Defendant also sets out what it claims to be the provisions of its constitution and by-laws.
The plaintiff for reply says, that without waiving or in any manner foregoing the denials, or any of the denials, implied by law in her behalf to the allegations, all and singular, in defendant’s answer, and inconsistently with such denial or denials, pleads and replies to said answer as follows:
“And at the time said certificate was delivered to said Fern Teter, it was not contemplated by either herself or the defendant, that she should ever be ritualistieally initiated or obligated in defendant’s local lodge, known as Home Lodge of Cedar Rapids, but it was contemplated by both defendant and herself, that she should be taken, held, and considered a member of said Home Lodge of Cedar Rapids, as fully, to all intents and purposes pertaining to' insurance, as if regularly initiated and obligated in the ritualistic work of said Home Lodge.
“Wherefore, plaintiff prays for judgment as in her original petition.”
The plaintiff in its reply was particular to insist (though perhaps this was not necessary) upon the statutory denial of affirmative matters pleaded in the answer.
Section 3567 of the Code of 1897 provides: “There shall be no reply except:
“1st. Where a counterclaim is alleged.
“2d. Where some matter is alleged in the answer to which the plaintiff claims to have a defense by reason of the existence of some fact which avoids the matter alleged in the answer.”
Section 3577 provides for the pleading of new matter in the reply “not inconsistent with the petition, constituting a defense to the matter alleged in the answer; . . . but an allegation of new matter in avoidance shall not be treated as a waiver of the denial of the allegations of the answer implied by law.”
In Parno v. Iowa M. M. Insurance Co., 114 Iowa 132, this court had occasion to pass upon this question, and in the first division of the opinion in that case it is said: “It is insisted the matter contained in the reply is insufficient because there is no denial and neither is there a confession with the avoidance.
Section 94 contained in the booklet and offered in evidence, as set out in the abstract, is the only provision of the Constitution and By-Laws offered in evidence which makes any provision for the initiation of an applicant in the lodge, and that provision is substantially as follows:
“When the applicant is approved by this society, the Supreme Secretary will, forthwith, issue a certificate of membership, which shall be under the seal of the Supreme Lodge
It is claimed by the defendant in its answer that Fern Teter never presented herself for initiation or obligation, and in fact, was never initiated in the lodge, and that, therefore, she never became a member of the lodge or entitled to any of its benefits.
The legal effect upon the rights of the certificate holder arising from a failure to present herself for initiation into a lodge cannot be determined in this case for the reason that there is in the record no provision of the by-laws or constitution of the order requiring this as a condition precedent to the full enjoyment of all the rights of a member.
The statute under which societies of this kind are organized, Sec. 1822 of the Code of 1897, provides as follows:
It will be noticed that in the certificate issued, the rights of the plaintiff were not made to depend upon initiation. The initiation, if any provided for, may be waived and the applicant may be made a full member of the lodge (which we consider essential) without going through formal initiation and without taking the ritualistic work. The certificate provides:
“Fern Teter of Ottumwa, Iowa, is accepted as a member of the Home Lodge No. 101, located at Cedar Rapids, State of Iowa, and is entitled to all the rights, benefits, and privileges of a beneficial member in the Fraternal Banker’s Reserve Society, and has designated as beneficiary under this certificate, Catherine Teter, mother, to whom shall be paid, upon satisfactory proofs of the death of said member while in good standing, the sum of $1,000.00.”
Therefore, in the absence of any showing of the existence of any law of the order requiring initiation as a condition precedent to the right of enjoying all the rights, privileges and immunities of a member, we must hold, under this certificate, that Fern Teter was a member of the order upon the receipt of the certificate from the Supreme Lodge. We do not mean to hold that'the lodge cannot make initiation a condition precedent to membership. Where this is done it is. essential to constitute an applicant a member of the lodge and entitled to its privileges, unless waived by the order itself.
It is next contended that the certificate to be effectual must not only be signed by the local president and secretary, but by the member adopted.
This contention is based on the provisions of what is claimed to be Sec. 94, but this section not having been admitted in evidence, and not properly before this court for consideration, we cannot say that this was made a condition precedent to plaintiff’s right, and therefore cannot base any finding against plaintiff upon this contention.
Sections 98, 99, and 100, which were found in Exhibit D-l, the book hereinbefore referred to, were admitted in this way. Gale B. Brown, who was called as a witness for further cross-examination by the defendant, said: “These sections in Exhibit D-l (which were shown to the witness) were contained in the book that was given me. My best recollection is, that that book that I had was a little book like this (Exhibit D-l). I supposed it contained these sections just as they are here in D-l.” Thereupon the court allowed these sections to go into the record, not for the purpose of proving that they were in fact the by-laws of the society, but for the purpose of showing what the witness claimed was the authority under
Section 133 was contained in Exhibit D-l, and was offered in evidence by the defendant as part of the cross-examination of the witness, Gale B. Brown, called by the plaintiff in rebuttal, and was admitted as a part of the cross-examination. This section reads as follows: ‘ ‘ They shall have authority to organize local lodges within their respective territories, and in such territory to collect and receipt for the membership fee as specified in the laws of this society, but have no authority whatever to make any other collections as deputy, and they shall not act outside of their specified territory without written instructions from the superintendent.” This refers to the authority of deputies.
The witness Brown testified: “Exhibit D-l is a copy of the one that I had. I was given this constitution and by-laws and advised of my duty and authority in accordance with this See. 133. I think I followed that by-law. I understand that that was my rule to- follow, and did follow it. ’ ’ Thereupon it was offered as part of the cross-examination and admitted, limiting it, however, as evidence of what the plaintiff claimed to be his authority, and not substantive evidence that it was in fact a part of the by-law.
We do not find that the constitution or any of the bylaws were properly before the court, except as above limited. We are not, therefore, in a position to determine or say what the by-laws and constitution of this order were. . The defendant in its answer had alleged that it had by-laws and had a
The defendant, however, alleged in its answer that Fern Teter never paid any assessments of any kind or character; that she wholly failed, neglected, and refused to make any payments whatsoever, and that by reason thereof, she had forfeited all rights or claims against the defendant association ; that she had been suspended by such failure and refusal to pay, in compliance with the certificate. This was denied by the reply, and the burden was on the defendant to show this fact in order to defeat recovery.
There is no plea on the part of the plaintiff of any waiver by the defendant of any of the conditions attached to the certificate set out by the plaintiff in her petition. The constitution and by-laws were not in evidence. We are not in a position, under this record, to say what they are, whether waived or not waived. Proof of waiver of the constitution and by-laws became necessary only upon a showing of what this constitution and by-laws were. Therefore, so far as the record in this ease is concerned, we need not consider whether they were waived or not.
Waiver of any particular matter relied upon as a defense
The terms of this application are made a part of the certificate by its terms, as are also the conditions attached to the certificate, all of which are set out by plaintiff in her petition.
The waiver pleaded does not refer to any waiver of any conditions of the certificate, or the application which is made a part of the certificate. The plaintiff says in her reply in which she pleads the waiver, that the defendant waived each and all the requirements and provisions contained in the sections of defendant’s constitution that are copied and set forth
Of course, there was evidence introduced for the purpose of showing a waiver of this obligation to pay, but there was no allegation of such waiver to support such evidence, and without an allegation of the waiver of these provisions of the policy, no evidence of such waiver can be considered. A plea of waiver in effect says that certain matters alleged by the defendant as constituting a default were waived by the de
It is true in this case that if the constitution and bylaws were before us in this record for our consideration, we might be able to say that the provisions of the contract are the same as the provisions of the by-laws and constitution, or that the by-laws and constitution were incorporated in and made a part of the certificate and were practically the same, but this we cannot say, for the reason that on the objection of plaintiff they were not allowed to come into this record. Or, in other words, an allegation of a waiver of certain matters is not sustained by proof of the waiver of other matters. The proof must correspond with the allegation made, and be confined to the point in issue.
The question before the court was, what matters alleged by the defendant does the plaintiff claim in its reply were waived ?
The plaintiff does not allege that any provisions of the contract sued on, and especially set out in the contract, were waived by the defendant, but simply pleads that the defendant waived the provisions of its by-laws and constitution set out by the defendant in its answer, and seems to limit this waiver to the fact of initiation. It was the duty of the court to dispose of this case on the issues tendered, and upon none other. Proof cannot be considered which does not have its foundation in the allegations made in the pleading. A fact, though proven, if not alleged as a basis for recovery, or a basis for avoiding matters set up by the opposite party, cannot be considered. Where a waiver is relied upon as a matter of defense, or to avoid matters set out in an answer, the waiver must be pleaded and the facts alleged, upon which it is predicated, and if not so pleaded, the party cannot avail himself of the waiver, though it may appear in the evidence.
This question was considered in Parsons v. Grand Lodge
See also Wilson v. Riddick, 100 Iowa 697; Jones v. Peebles, 30 So. R. 564.
We think the court erred in directing a verdict for the plaintiff upon the issues and proofs submitted. For this reason the case must be reversed.
Other matters argued depend entirely upon the by-laws and constitution of the order, proof of which, as said before, was rejected by the court. We think, however, sufficient showing was made to entitle the plaintiff to have Exhibit D-l, containing what purported to be the constitution and bylaws of the society, admitted in evidence; but that matter is not argued here, and we do not give it further consideration. In view of another trial, we refrain from commenting on the evidence, and we do not give consideration to other questions urged by counsel in argument, as it is not likely that they will occur on another trial.
For the error pointed out we think the ease must be reversed and is — Reversed.