158 Ill. 560 | Ill. | 1895
delivered the opinion of the court:
Appellant contends there was no evidence showing the death of the persons holding the eight certificates,— the assessments for which Van Frank failed to pay,—and hence the association has shown no necessity for making an assessment, and if, in the absence of such necessity, an assessment was made it would be void. The record of the association is prima facie evidence in respect to the rights of its members, and it is not necessary to prove the death of members, or the fact of membership, to authorize a call for assessment, otherwise than by a copy of the record of the board of directors. In Bagley v. A. O. U. W. 131 Ill. 498, it was said (p. 503): “He being a member of the association, the' records made by it were evidence against him. * * * If the theory of plaintiff is correct, and it is required of defendant to establish, in the first instance, otherwise than by its record, and by direct and affirmative testimony, all the conditions precedent to the call of the assessments, then the burden would be imposed upon it of producing the witnesses to prove the death of every member who had died since the incorporation of the order whose beneficiary certificate had been paid, and that every such member was in good standing when he died, and also of showing every dollar paid into the beneficiary fund and paid out of that fund during the same period of time. All this would be necessary.in order to show what moneys had been received and what payments had been made, by reason of which the beneficiary fund had fallen below $2000 and a new assessment thereby justified under the laws and regulations of the order.”
It is next urged the record fails to show an assessment was in fact made. The evidence shows a meeting was held at the office of the association on August 11, 1891, by the board of directors, when, on motion, the secretary was instructed to levy an assessment September 1, 1891, on account of the death of the holders of eight certificates, and pay their beneficiaries. By article 18 of the association members were assessed according to their ages, upon the death of a member of a division, and the action of the board sufficiently determined the assessment, as the article provided the amount of the assessment, according to age,'on each surviving member of that division. That action, in connection with the article, amounted to an assessment by the board of directors.
By the membership certificate it appears the assessments were to be issued bi-monthly, commencing with January 1. Notice of the assessment of August 11 was mailed August 29, the notice bearing date September 1. It is urged, because of this fact appearing in evidence, the assessment is void. The validity of the assessment did not depend on the date of mailing notice nor on the date of the notice. The right to have notice of the assessment existed in the assured, which notice must be given in the manner provided by the articles of association and the certificate of membership. Notice of the bi-monthly assessment is not necessarily mailed as of the first of the month, as article 19 of the association provides: “Immediately after such assessment is made the secretary shall transmit, by mail, to each member subject thereto, a notice,” etc. The mailing before the first of September of notice dated as of that day was authorized by the articles of association, and could not prejudice the assured, but was for his benefit and advantage.
Error is assigned in permitting the witness Jasper to testify to a conversation with Van Frank, the assured, to the effect that after he had notified Van Frank of receiving the sheet with names of members and amount of assessment, the latter said the assessment was getting too heavy for him, and he had concluded to drop it. The undertaking on the part- of the assured was, that he was to pay his assessments or lose the benefit of membership. He could change the beneficiary at pleasure, as provided by article 23 of the association, and pay assessments or not, as he chose. It was in the power of the assured to deprive the beneficiary of any interest, and his declaration that he no longer intended to pay assessments, when shown in connection with the fact that he failed to pay an assessment within the time required, whereby the pol-' icy lapsed, was competent evidence. Hansen v. Supreme Lodge Knights of Honor, 140 Ill. 301.
Twenty-two instructions were asked for plaintiff and ten were given. To enter into a discussion of all these refused instructions could subserve no useful purpose. We have carefully examined the refused instructions, and hold there was no error in refusing to give the same. Nor was there reversible error in giving instructions for the defendant.
That no recovery could be had by plaintiff was found by the Appellate Court on the facts, and the evidence clearly sustains the judgment of that court.
We find no error in the admission or exclusion of evidence, and the judgment of the Appellate Court for the Third District is affirmed.
T , . „ ,
T , . „ , Judgment affirmed.
Mr. Justice Carter, having been of counsel in the case on the trial in the circuit court, took no part in the decision of the case in this court.
