130 Iowa 639 | Iowa | 1905
A benefit certificate for $1,000 was issued in 1900 to Mrs. Wandell as a member in the defendant-association, benefit payable to plaintiff, her husband. On June 6, 1903, Mrs. Wandell, who was then sick at the home of her father, the intervener, living in the country about five miles from the town of Strawberry Point, signed the following indorsement on the back of this certificate:
I, Mrs. Geo. Emma Wandell, to whom the within certificate was issued, do hereby surrender the same, and request that a new one be issued in the amount of one thousand dollars, and that the payment of the benefit fund due at my death be made to George Keith, bearing relationship to myself of father.
Witness my hand this 6th day of June, 1903.
Mrs. Geo. Emma Wandell.
The certificate, with this indorsement upon it, was at once taken by the intervener to Strawberry Point, and de^ livercd to the secretary of the subordinate council of de
■The sole controversy in this case is as to whether, un
Art. 12. 'Change of Beneficiaries. If a member in good standing at any time desires a change in the name of his or her beneficiary or beneficiaries, he or she shall pay to the secretary of the subordinate council the fee of one dollar, and deliver to him or her his or her benefit certificate, with the surrender clause on back thereof duly filled in and executed by him or her, designating therein the change desired in the name of the beneficiary or beneficiaries. The execution of such surrender clause by the member upon his or her benefit certificate shall be in the presence of, and attested by, the secretary of the subordinate council, and have the seal attached; provided, however, that, if the member be so situated that he or she cannot execute the surrender of the benefit certificate in the presence of the secretary of his or her council, the signature of the member thereto may be attested by a jurat or the acknowledgment of any person authorized by the law to administer oaths and take acknowledgments. The secretary of the subordinate council shall forward said certificate, with said surrender clause indorsed thereon, and one-half of said fee of one dollar to the supreme secretary, who shall thereupon issue a new benefit certificate payable to the beneficiary or beneficiaries named in said surrender clause — provided, further, that the new beneficiary or beneficiaries so named shall be within the description of beneficiary or beneficiaries contained in Art. 11 hereof. No change in the désignation of the beneficiaries shall be of binding effect, unless made in compliance with these articles.
The Nebraska cases just cited are based on the doctrine of waiver, and counsel for appellant insist that in this case there could be no waiver by the acts of the local secretary, in view of a stipulation in the constitution of the association that no officer or agent has authority to waive their provisions. As to the effect of such a stipulation against waiver, the authorities are in irreconcilable conflict but we do not find it necessary to pass on the point, for we think that the facts in this case clearly show an estoppel. Waiver is quite a different matter from estoppel, for, to constitute a waiver, action to the prejudice of the party in reliance on the conduct of the officer or agent is not essential, while such reliance is essential where estoppel is sought to be shown; and we think that the local secretary, by inducing Mrs. Wandell to believe that the indorsement was sufficient and to refrain from any attempt to further verify her signature, and by accepting the payment of $1 on the theory that the indorsement was sufficiently verified, es-
We think that our position is sustained by a well-considered case in the New York Court of Appeals (Luhrs v. Luhrs, 123 N. Y. 367 (25 N. E. 388, 9 L. R. A. 534, 20 Am. St. Rep. 754), the doctrine of which is stated and reaffirmed in Donnelly v. Burnham, 83 N. Y. Supp. 659 (86 App. Div. 226, affirmed by the Court of Appeals without an opinion, 69 N. E. 1122), in the following language:
In the Luhrs Case it was provided by the constitution of the organization that the change in the beneficiary might be made by surrendering to the lodge of the insured his certificate, to be forwarded to the supreme lodge, which was thereupon required to cancel the original certificate and issue a new one in lieu thereof. The insured surrendered his certificate to his lodge, with directions for the issue of a new certificate naming a new beneficiary. It was mailed to the supreme lodge, and on the same day it was mailed the insured died. The old certificate and the request were received two days later at the home office, formally canceled, and the new certificate issued. It was held that as the insured had done all that was required of him in order to effectuate his intent to change the beneficiary, and all that remained to be done was purely formal in the doing of which the supreme lodge had no discretion, the old certificate was to be regarded as canceled when it was properly surrendered to the branch lodge, the authorized agent of the association; that the death of the insured did not operate to prevent the consummation of the surrender; and that the subsequent issuing of the new certificate, as directed, should be held to relate back to the time of the surrender.
This seems to be the view also announced in Waldum v. Homstad, 119 Wis. 312 (96 N. W. 806.)
Other members of the court would reach the same conclusion on different grounds. They would construe the language of the constitution of the defendant association as having the same effect as the language involved in the Shuman case — that is, they would hold that a right of action could not arise in favor of the new beneficiary until the ministerial act of canceling the old certificate and issuing the new one had been performed by the officers of the as
The writer of this opinion desires to suggest, in conclusion, that, while he entirely concurs in the view that equitable exceptions may be made in proper cases, he thinks, for the reasons which have already been pointed out, this is not a case where it is necessary to introduce the equitable doctrine. Certainly, if the rights of the intervener had become perfect as matter of law, it would be better to decide the case on that ground than to resort to equitable rules, the application of which must be attended with some uncertainty because dependent upon the form of procedure and the difficulty of reducing exceptions which are merely
The court, therefore, reaches the conclusion that the judgment of the trial court should be, and it is, affirmed.