Fahey v. Ancient Order of United Workmen
| Decision Date | 15 November 1919 |
| Docket Number | No. 32952.,32952. |
| Parties | FAHEY v. ANCIENT ORDER OF UNITED WORKMEN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; W. G. Sears, Judge.
Action on a certificate of membership issued to Michael Fahey by the defendant, stipulating the payment of $2,000 upon his death, if in good standing, resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals. Reversed.T. P. Cleary and C. R. Jones, both of Sioux City, for appellant.
E. B. Evans, of Des Moines, and Hess & Hess, of Sioux City, for appellee.
Michael Fahey became a member of the Ancient Order of United Workmen October 24, 1892; but, for some reason not important now, the certificate sued on was not issued until June 10, 1915. This certificate named his wife, Kate Fahey, his beneficiary. He died January 7, 1917, and in this action she seeks to recover the indemnity stipulated in the certificate. The insurer pleaded as a defense that the insured had not paid the assessment of January, 1916, and therefore was not in good standing at the time of his death. Plaintiff pleaded waiver of prompt payment and compliance with the requirements for reinstatement and a tender of payment and refusal of the assessment mentioned.
[1] I. The beneficiary testified that she had looked after the payment of assessments and dues for many years prior to her husband's death, and identified receipts showing that the December, 1914, assessment was not paid until January 16, 1915; that the assessment of July, 1915, was not paid until August 27th of that year; and that the assessments of September, October, and November, 1915, were not paid until December 20th of that year; and, further, that these and all other payments were received without applications reciting the health condition of the insured, as required by the by-laws for reinstatement. There was no error, in allowing the witness to testify, over objection, on cross-examination, as to whether certain signatures to what purported to be such applications were in the handwriting of the insured, for such testimony bore on her denial of applications by the insured having been presented to the local financier.
[2] II. The reply was filed March 11, 1918, and to it was annexed ten interrogatories, to be answered by the defendant. The time within which answers were to be made was not fixed by the court. The trial began fourteen days later, and at the close of the evidence, adduced by plaintiff, an affidavit such as is contemplated by section 3610 of the Code was filed, and the plaintiff then moved for judgment. Shortly thereafter, on the same day, the defendant filed answers to the interrogatories. The motion was overruled. Section 3604 of the Code authorizes interrogatories to be annexed to the petition, answer, or reply. Section 3606 enacts that--
“The interrogatories shall be answered at the same time the pleading to which they are annexed is answered or replied to, unless they are excepted to by the adverse party; in which event the court shall determine as to the propriety of the interrogatories propounded, and which of them shall be answered, and within what time such answer shall be made.”
No pleading in response to a reply is required, and the time in which to answer interrogatories annexed thereto is not specified by statute. An order of court prescribing a reasonable time in which this shall be done is essential before resort to the remedy provided by section 3610 of the Code is available. Until such an order is entered and there has been a failure to answer within the time fixed by the court, the claim or defense or part thereof may not “be deemed to be sustained,” under section 3610 of the Code. Hogaboom v. Price, 53 Iowa, 703, 6 N. W. 43;Carvin v. Cannon, 53 Iowa, 716, 6 N. W. 122;Free v. Western Union Telegraph Co., 135 Iowa, 69, 110 N. W. 143. There was no error in overruling the motion.
III. The answer pleaded that the insured had “failed to pay the assessment legally due and payable during the month of January, 1916, and as a result of such failure to pay, became suspended from the rights and benefits of said certificate,” and that he had never been reinstated, and, for this reason, was not in good standing at the time of his death. The plaintiff replied admitting the omission to pay the assessment of January, 1916, but alleged that payment thereof had been tendered prior to February 15, 1916, and refused, and further that all requirements for reinstatement, save that of payment had been waived. Section 42 of the by-laws provides that--
The consequence of omission to pay is declared in section 136:
“Any member failing to pay his or her assessment on or before the last day of the month when the same is due shall, because of such failure to pay, and without any action by his or her lodge or any officer thereof, stand suspended; and no act or statement of any officer of the subordinate lodge or of the Grand Lodge shall be deemed to constitute a waiver of such suspension, nor shall it estop the Grand Lodge from relying upon such suspension.”
Three methods are provided for reinstatement: (1) By filing application therefor with the local financier within 30 days and payment of the delinquent assessment and dues, and present a statement signed by the insured certifying that he is then in good health; (2) by filing application after 30 days and within 90 days with the same showing, but the financier then appoints three members of the local lodge to investigate and report and a majority vote of the lodge is required to reinstate; and (3) by filing application after 90 days and within 6 months, accompanied by a medical examination which must be approved by the Grand Medical Examiner, paying to the financier one assessment. Only upon a majority vote of the local lodge is the member reinstated. Under these provisions, then, the insured became suspended upon failure to pay the assessment of January, 1916, on or before the last day of that month, and the main issues to be determined are: (1) Whether the defendant, by its course of dealing with the insured, had waived compliance with the several sections relating to reinstatement after suspension; and (2) whether, if so, the beneficiary in his behalf tendered payment within such time as to take advantage of such waiver and kept same good.
The evidence disclosed that the insured had been suspended sixteen times since 1896 because of his omission to pay the assessments within the time required and had been reinstated fifteen times, five of the suspensions having occurred since January, 1912. Plaintiff was asked if at any time during the year 1915 she had furnished any medical statement concerning her husband's health, and answered in the negative. It also appears that the assessment of December, 1914, was not paid until January 16, 1915. The plaintiff testified to having paid this assessment to the financier of the local lodge personally. The receipt bears that date. The financier swore that he had loaned the insured money to pay the assessment in December, 1914, on his promise to bring it back during the next month, that is, in January 1915, and that the date of the receipt was when the money borrowed was returned. The jury might have relied upon the beneficiary's statement rather than that of the financier and have found that the assessment was paid on the date the receipt bears, and, if so, this written application must have been waived. Again, she testified to having paid the assessments of July and August,...
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