Hart v. National Masonic Acc. Ass'n
| Decision Date | 24 May 1898 |
| Citation | 75 N.W. 508,105 Iowa 717 |
| Parties | D. W. HART v. NATIONAL MASONIC ACCIDENT ASSOCIATION, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. A. SPURRIER, Judge.
ACTION at law on a certificate of membership issued by the defendant. There was a trial by jury and a verdict and judgment for the plaintiff. The defendant appeals.
Reversed.
Clark Varnum for appellant.
Berryhill & Henry for appellee.
On the sixteenth day of August, 1893, the defendant issued to the plaintiff the certificate of membership in suit. It purported to provide for the payment to the plaintiff of weekly benefits in case of his disability while it was in force, and for the loss of a foot, and for other results of accidents which need not be mentioned. On the twenty-sixth day of October, 1893, the plaintiff, while in Chicage, fell in front of a street car. It passed over him, cut off his left foot and seriously injured the other. He claims that he was continuously disabled by the accident for a period of forty-nine weeks; and seeks to recover one thousand, two hundred and twenty-five dollars for that disability and two thousand, five hundred dollars for the loss of the foot, with interest on both sums from the first day of October, 1894, at the rate of six per cent. per annum. The judgment rendered was for the sum of four thousand, three hundred and forty-nine dollars and forty-seven cents, besides costs.
I. Soon after the accident, the plaintiff notified the defendant of it, and filed proofs of the injuries received. On the twenty-first day of February, 1894, the plaintiff signed, and delivered to an officer of the defendant, a writing, of which the following is a copy: On the twenty-sixth day of the same month the defendant mailed to the cashier of the First National Bank of Dodge City a check for six hundred dollars, payable to the plaintiff, with a letter which directed the cashier to deliver the check to Hart, and to obtain his signature to a receipt which was also inclosed. On the same day the defendant mailed a letter to the plaintiff, informing him of what had been done, and requesting him to call at the bank and receive his money. The defendant pleaded this transaction as a settlement, and complains because the court refused to submit any question respecting it to the jury. The writing did not authorize a delivery of the check by sending it to a bank; and the evidence does not show whether the bank received the check, nor what became of it. An employe of the defendant, who mailed it and the letter to the bank, states that she does not think the defendant has the original letter or receipt, and that she has never seen them since they were sent out; but she does not state that she would have seen them had they been returned, and does not say that she has not seen the check. The check may have been returned to the defendant, but, however that may be, it does not appear that it was I ever tendered to the plaintiff. The evidence merely showed a proposition for settlement, and an acceptance, but fails to show payment. That was not sufficient to constitute a defense to this action. See Bradley v. Palen, 78 Iowa 126, 42 N.W. 623; Hall v. Smith, 10 Iowa 45. The district court therefore properly withdrew the question of settlement from the consideration of the jury.
II. The certificate was expressly made subject to all the conditions and provisions of the articles of incorporation and by-laws of the defendant. Section twenty of the by-laws provides that in case a member of the association shall sustain any bodily injury, induced by external, violent and accidental means, sufficient to entitle him to any benefits, " The defendant contends that the notice required by that section was not given until the eighth day of November, 1893, or more than ten days after the injury in question was received; and that it appears that the formal notice, on a blank furnished by the defendant, was not filled out and returned to the latter until the date last specified. The defendant had the right to insist upon the notice required by its by-laws. Simons v. Association, 102 Iowa 267, 71 N.W. 254. On the second day of November, 1893, the defendant wrote to the plaintiff, stating, "We are in receipt of your favor, dated the 31st ult., stating that you have met with an accident." This statement contains the only evidence of the contents of the letter of the plaintiff, to which it was an answer, which has been called to our attention. It does not show that the letter contained the information required by the by-laws. It is said by the plaintiff that the sufficiency of the notice was not questioned by the pleadings. The burden was on the plaintiff, in order to recover, to show the facts which constitute a complete cause of action. To show an accident and resulting injuries was not sufficient. The contract between the parties provided that "no benefits can accrue or be paid" until the required notice should be given. But section 2715 of the Code of 1873, which was in force when this action was tried in the district court, provided that, "in pleading the performance of conditions precedent in a contract, it is not necessary to state the facts constituting such performance, but the party may state, generally, that he duly performed all the conditions on his part." Section 2717 provides that, "if either of the allegations contemplated in the three preceding sections is controverted, it shall not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated." The plaintiff alleged in his petition that he had "complied with all the conditions and provisions of the articles of incorporation and by-laws of said association on his part to be kept and performed, and that by the terms of said certificate he is entitled to the sum of two thousand five hundred dollars for the loss of his said foot, and the further sum of one thousand two hundred and twenty-five dollars, being the sum of twenty-five dollars per week for a period of forty-nine weeks, during which time he has been continuously disabled." The certificate provides that the member is entitled to the benefits appertaining to the class to which he belongs, subject to the conditions and provisions of the articles of incorporation and by-laws. The averment of the petition which we have set out was a general statement to the effect that the plaintiff had performed all the conditions of the contract on his part, and was sufficient, under section 2715. The answer of the defendant contained a general denial, but the facts relied upon to show that due notice had not been given were not stated, and therefore the sufficiency of the notice was not in issue. See Brock v. Insurance Co., 96 Iowa 39, 64 N.W. 685; Clark v. Riddle 101 Iowa 270, 70 N.W. 207.
III. The certificate states that the occupation of the plaintiff was that of a coal merchant, and that he was a member of class one of the association. By the terms of the...
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