Alexander v. Grand Lodge A.O.U.W.

• Decision Date: 07 February 1903
• Citation: 93 N.W. 508,119 Iowa 519
• Parties: ESTHER H. ALEXANDER, Formerly Esther H. Parsons, v. THE GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN OF IOWA, Appellant
• Court: Iowa Supreme Court

93 N.W. 508

119 Iowa 519

ESTHER H. ALEXANDER, Formerly Esther H. Parsons, v. THE GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN OF IOWA, Appellant

Supreme Court of Iowa, Des Moines

February 7, 1903

Appeal from Black Hawk District Court.--HON. A. S. BLAIR, Judge.

ACTION on a certificate in a mutual benefit or fraternal association. Verdict for plaintiff. From judgment thereon defendant appeals.

Affirmed.

J. D &. C. Nichols for appellant.

D. E. & G. T. Lyon, G. V. Menziers and Mullan & Pickett for appellee.

OPINION

MCCLAIN, J.

This is a second appeal. See Parsons v. Grand Lodge, 108 Iowa 6, 78 N.W. 676. Since the action was brought plaintiff has remarried, and the case is now prosecuted in her present name. The issues and evidence were not the same on the second trial as on the first, and it will be necessary to restate the case. In October, 1892, a certificate in the defendant order was issued to Frank H. Parsons, in which Ada H. Parsons was named as beneficiary. In December, 1893, Parsons made application to the grand recorder to have the certificate made payable to Esther H. Parsons, bearing to him the relation of wife, stating in his letter in which the change was asked that he had secured a divorce from his former wife. In 1894, plaintiff, having ascertained that at the time the certificate for her benefit was issued Parsons had not been divorced from his former wife, but having information that subsequently a divorce had been granted as against him, she then living with him, and being recognized by him as his lawful wife under a common-law marriage (her former marriage to him being supposed to have been celebrated while he was lawfully married to another woman), had a conversation with the financier of the local lodge of which Parsons was a member in which she referred to the fact that such divorce had been secured, and that she had become the lawful wife of Parsons by a common-law marriage, and asked whether she should continue to pay the assessments, saying that she did not wish to do so if the certificate was not valid. The financier directed her to continue to pay assessments in order to keep the certificate alive, and this she did until Parsons' death in 1895.

I. Counsel for appellant argue that as to various material matters the pleadings are not sufficient to raise the questions presented to the jury, but we do not find it necessary to go into these questions. The case was tried on the theory on which it was submitted. If the pleadings were not sufficient, objection thereto should have been taken at the proper time. It is too late now to urge for the first time that they were defective. We have no disposition to encourage the practice of trying a case on the facts, and, after a verdict, attempting to go back to pick flaws in the pleadings. If the pleadings are so radically defective that the successful party is entitled to no relief whatever, then the question can be raised by motion in arrest of judgment. Otherwise we have no inclination to interfere.

II. It being conceded that no proofs of loss were furnished, the question arises whether proofs were waived. For the purpose of showing a waiver, a letter from the grand recorder of the defendant order to the attorney of plaintiff was received in evidence, over defendant's objection, in which the recorder notified plaintiff, through her attorney, that there was no valid claim against the defendant, for the reason that Parsons had been suspended by the local lodge of which he was a member. No objection on account of failure to make proofs of loss was suggested in this letter. There is no question but that this letter constituted a waiver of proofs of loss if the grand recorder had authority to waive. It appears that, while the finance committee of the defendant order had authority to pass on proofs of loss, yet that it did so only when the proofs were submitted to it with the signature of the grand master and grand recorder. As it was, therefore, evidently necessary that the grand recorder should act in determining whether the proofs of loss were sufficient, we have no question that he had authority to waive a presentation of proofs.

III. The principal defense relied on by appellant was fraud in the procuring of the second certificate, such fraud consisting in the representation that plaintiff was Parsons' lawful wife, whereas at that time Parsons was still the husband of a previous wife; and, further, that Parsons represented himself to be divorced from his former wife, when, as a matter of fact, no such divorce had been granted. To overcome this defense, plaintiff relies upon a waiver of the fraud, with knowledge thereof arising from the statement of plaintiff to the financier of the subordinate lodge, and subsequent payments of dues by the direction of such financier, as already described. It is first contended that the financier is not shown to have had any authority to waive the fraud but it appears beyond question that he did have authority to collect dues, and was the regular officer to whom dues were payable. One asserting the right to pay under a valid certificate, and allowed to do so by the officer having authority to determine whether or not such payments should be received, is certainly justified in relying on the statements of such officer, and the association is estopped from insisting by way of defense on any fact which would have been a proper ground for refusing, when the dues are offered, to recognize the certificate as valid, provided such fact is known to the association through such officer, or there is such notice of the fact as to charge the association or its officer with knowledge thereof. Supreme Lodge v. Davis, 26 Colo. 252 (58 P. 595); Order of Columbus v. Fuqua, (Tex. Civ. App.) 60 S.W. 1020; High Court v. Schweitzer, 171 Ill. 325 (49 N.E. 506); Coverdale v. Royal Arcanum, 193 Ill. 91 (61...