Hannum v. Waddill, Superintendent of Insurance

• Citation: 36 S.W. 616,135 Mo. 153
• Parties: Hannum v. Waddill, Superintendent of Insurance, Appellant
• Decision Date: 23 June 1896
• Court: United States State Supreme Court of Missouri

36 S.W. 616

135 Mo. 153

Hannum v. Waddill, Superintendent of Insurance, Appellant

Supreme Court of Missouri, First Division

June 23, 1896

Appeal from Linn Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

M. W Huff and Brown & Pratt for appellant.

(1) It was error in the court to instruct the jury to find for the plaintiff unless they should find from the evidence that the assessment number 79 was made on the members of the company to pay death losses. (2) The verdict should be set aside because defendant's defense that a proper notice was mailed was good at law was complete and unimpeached. 2 Am. and Eng. Ency. of Law, 176. (3) The deceased had actual notice of the assessment having been made. The defendant being a mutual company, he had no right as a member thereof to rely upon a failure to receive the written notice. The only circumstance that would excuse his failure to pay the assessment would be his ignorance of it, due to the fact that he had not received the notice, and further, the fact that it had not been deposited in the postoffice as the by-laws required.

Lander Johnson & Lander for respondent.

(1) Respondent's motion to dismiss appeal in this court should have been sustained for the reasons distinctly pointed out and specified therein. Secs. 2253 and 2254, R. S. 1889; Supreme Court Rules, Nos. 11, 12, 13, 15, and 16; Brand v. Cannon, 118 Mo. 595; Garrett v. Coal Co., 111 Mo. 279; Bachman v. Brown, 56 Mo.App. 396. (2) The Kansas City court of appeals rightfully affirmed the judgment of circuit court. Appellant and state superintendent insurance failed to prosecute or perfect appeal, and were guilty of such neglect and laches as to waive any right to be made party, or to be otherwise heard in the court of appeals. Act 1891, p. 69, sec. 2252; secs. 2253 and 2301, R. S. 1889; Kansas City Court of Appeals, rules Nos. 14a, 15, and 19; Brown v. Murry, 53 Mo.App. 184; Snyder v Free, 102 Mo. 325; Thompson v. Allen, 107 Mo. 479; Cunningham v. Railroad, 110 Mo. 208. (3) There is no rule of court or provision of law whereby respondent could bring in state superintendent insurance as party or requiring respondent to suggest the dissolution of appellant company, this being optional with superintendent insurance, and had he moved to be made a party in time, and before the court of appeals was compelled under the law and rules of that court to affirm the judgment, he would, no doubt, have been substituted as party. Sec. 5945, R. S. 1889; State ex rel. v. St. Louis Court, 41 Mo. 599; Mead v. Mead, 1 Mo.App. 247; Reichenbach v. Ellerbe, 115 Mo. 588. (4) The consideration and finding on the motion to affirm, and for rehearing by court of appeals, was a judicial act, involving a consideration of the facts and construction of the law, and this court will not review the action of court of appeals, they having acted, no matter how erroneously. High on Ex. Legal Rem, sec. 102; State v. Oliver, 116 Mo. 188; State ex rel. v. St. Louis Court, 87 Mo. 375; State ex rel. v. Cramer, 96 Mo. 75, and authorities cited. (5) Mandamus will lie to compel an inferior court to act, but will not lie, in this case (where the court acted affirmatively and judicially on every matter and motion), to correct the errors of inferior tribunal. State ex rel. v. St. Louis Court, 87 Mo. 375; State v. Oliver, 116 Mo. 188, and authorities last above cited. (6) The verdict is supported by the evidence and is for the right party. This court will not weigh the evidence, and will only reverse a cause where there is no substantial evidence to support the verdict. Seckinger v. Mfg. Co., 129 Mo. 591; Long v. Moon, 107 Mo. 334, and authorities therein cited.

OPINION

Macfarlane, J.

This suit was commenced against the National Temperance Relief Union, an insurance corporation, under the laws of the state of Missouri, incorporated and doing business on the assessment plan.

After a trial, and judgment against the defendant, the corporation was dissolved by a decree of the circuit court and defendant Waddill, as superintendent of insurance, has charge of its affairs and their settlement.

On the eleventh of September, 1889, one Addison Hannum was admitted to membership in said corporation, upon which he received a certificate, under which the corporation undertook to pay his wife $ 1,000 in case of his death, provided he kept and performed the agreements required of him by the by-laws of the corporation. One of these agreements was that he should pay, within thirty days after notice, all assessments which might be levied on account of the death of other members.

Section 2, article 2, of the by-laws, provides that notices of assessments shall be sent by mail to the postoffice address of each member, and that "notices deposited in the postoffice at St. Joseph, Missouri, shall be deemed sufficient notice." It is further provided by said section, that failure to pay such assessments within thirty days after notice should work a forfeiture of all rights, benefits, and interests in the association.

The said Addison Hannum died on fifteenth day of April, 1892, and this suit is prosecuted by his widow, on the certificate, to receive the benefits of the membership.

The substantial defense made by the answer is that on the fifth day of March, 1892, assessment number 79 was declared and notice thereof was, on that day, given to said deceased, but that the same was never paid by him, and by reason thereof the said certificate, and all rights and benefits thereunder, were, on the fifth day of April, 1892, forfeited and said certificate became null and void.

The reply denies that assessment number 79 was ever made and that notice thereof was given deceased.

This is a sufficient outline of the pleadings to present the questions in issue.

On the trial plaintiff read in evidence the certificate of membership and it was agreed that deceased paid all assessments up to number 79 and otherwise kept and performed all conditions and obligations of membership.

To maintain its defense defendant read in evidence the by-law heretofore mentioned, and offered evidence with a view of proving that notice of assessment number 79 had been given.

This statement or stipulation appears on the record: "It was admitted by both parties that all the assessments were paid except number 79 which defendant contended was not paid, and that the total amount of assessments paid was $ 24.59. Plaintiff's counsel said: Consider all the assessments in evidence, and the receipts of the various assessments are considered in evidence."

The evidence offered in proof of notice will be considered in the opinion.

At the close of the evidence the court gave the jury this instruction prayed by plaintiff:

"The jury are instructed that in this case the defendant company rests its defense upon the alleged forfeiture of the certificate of membership or policy sued on, by reason of the nonpayment of assessment number 79. The court further instructs you that before the defendant can avail itself of such defense, you must find from the evidence in the case that assessment number 79 was made by defendant on the members of the company, including Addison Hannum, to pay death losses of deceased members, as provided by the by-laws of said company or association, and that defendant mailed said Hannum notice of such assessment in the manner required by the by-laws read in evidence, and unless you find under the evidence that defendant did do and perform said duties, you must find for the plaintiff."

Defendant asked an instruction in the nature of a demurrer to the evidence which being refused, this instruction was given at its request:

"The court instructs the jury that it is not necessary in order to show that the "Certificate of Membership" of Addison Hannum had lapsed at the time of his death to prove that he had actually received the notice of assessment numbered 79; it is only necessary to prove that the notice was deposited as first-class mail matter, in the postoffice at St. Joseph, Missouri, directed to him at Brookfield, Missouri. If, therefore, you believe from the evidence that said notice was by defendant company deposited in the postoffice at St. Joseph, Missouri, as first-class mail matter, directed to the said Addison Hannum, at Brookfield, Missouri, and he failed to pay said assessment within thirty days from date of said notice, then by the terms of the contract entered into by him, his certificate of membership lapsed, and his right to indemnity thereunder ceased and determined, and said certificate became null and void, and you should find for the defendant."

The verdict was for plaintiff, and defendant appealed.

Only two errors are assigned; first, refusing to instruct the jury to find for the defendant, and, second, the action of the court in requiring the jury to find from the evidence that assessment number 79 was made.

I. Under the pleadings the burden was placed on defendant to prove that assessment number 79...