Bosworth v. W. Mut. Aid Soc.

• Decision Date: 22 October 1888
• Citation: Bosworth v. W. Mut. Aid Soc., 75 Iowa 582, 39 N.W. 903 (Iowa 1888)
• Parties: BOSWORTH ET AL. v. WESTERN MUT. AID SOC.
• Court: Iowa Supreme Court

75 Iowa 582

39 N.W. 903

BOSWORTH ET AL.

v.WESTERN MUT. AID SOC.

Supreme Court of Iowa.

October 22, 1888.

Appeal from circuit court, Polk county; J. H. HENDERSON, Judge.

Mandamus by Louisa M. Bosworth and Louie M. Bosworth to compel the Western Mutual Aid Society, defendant, to make an assessment on its members to pay a loss because of the fact that Drake S. Bos worth was a member of said society, and had deceased prior to the commencement of this action.Trial to the court, and judgment for the defendant.The plaintiff appeals.C. C. & C. L. Nourse, for appellant.

Wm. Kennedy and W. E. Miller, for appellee.

SEEVERS, C. J.

1.When the deceased became a member of the society, he received a certificate of membership, which contains the following provisions:“This certificate shall be void-- First, if the amount of any assessment made on account of death benefits or the relief fund is not received at the Des Moines office within thirty days from the date of the notice thereof.”The defendant pleaded that the deceased had failed to pay the amount of two death losses of which he had been notified for a longer period of time than above stated, and therefore the policy was void.As the appellants contend the appellee assumed the burden of proving the non-payment of the assessments as pleaded by it, and further claims the defendant failed to establish such issue.The court found as a fact that there was a “clear default in the payment of such assessments.”This finding has the force and effect of a verdict, and therefore cannot be disturbed, unless the evidence, fairly considered, is insufficient to sustain it.Clearly there was such evidence.Not only so, we think the court could not have made any other finding than it did.It is fully sustained by the evidence.

2.Counsel for the appellants contend that the word “void” in the certificate of membership should be construed as “voidable,” at the election of the defendant.We do not think this position can be sustained, and Viele v. Insurance Co.,26 Iowa, 57, does not sustain it, as counsel contends.The parties contracted that, if the deceased failed to pay the assessments within the time stated, the certificate should be void.The parties must have meant precisely what is said.There is nothing to construe.There is no other language in the contract or articles of incorporation or by-laws of defendant which have any material bearing on this question, or which qualifies or restrains the meaning of the word “void,” as used in the certificate.The following cases sustain these views: Mandego v. Association,64 Iowa, 134, 17 N. W. Rep. 656, and 19 N. W....