Murphy v. Adams
| Decision Date | 14 November 1961 |
| Docket Number | No. 50417,50417 |
| Citation | 111 N.W.2d 687,253 Iowa 235 |
| Parties | Florence Fern MURPHY, Appellee, v. C. E. ADAMS, d/b/a A & F Home Benevolent Association, Appellant. |
| Court | Iowa Supreme Court |
Darling & Armknecht, Winterset, for appellant.
Webster, Frederick & Jordan, Winterset, for appellee.
This is an action by Florence Fern Murphy, plaintiff-appellee, as surviving widow of Elmer B. Murphy, deceased, to recover the sum of $999 which she claims is due her under the terms of a written instrument issued by A & F Home Benevolent Association, defendant-appellant. The evidence is meager and the facts are not in material dispute.
The A & F Home Benevolent Association is an unincorporated, unlicensed and apparently unsupervised association owned by defendant, C. E. Adams, ostensibly designed to provide low cost burial benefits for the members of the association. Memberships are sought by the defendant. Members contribute an initial membership fee, an annual expense contribution, and upon the death of any member each survivor contributes $1.35 to the association. From each contribution 35 cents is retained by the defendant for operating costs and $1 is paid to the heir or heirs designated by the deceased member.
Except for Mr. Adams, who acts as treasurer, the association has no officers. There are no articles nor bylaws. Except for an application for membership, there are no written agreements. In the case before us there is no evidence except as indicated.
On May 1, 1958, Elmer B. Murphy became a member of the association through an instrument in writing, reading as follows:
How the Plan Works:
1. In the event of any death by a group member, held is furnished to the named heir or heirs, by contribution from each member of the deceased's group. The basis of the plan is to help ones self and his friends in a time of need by making benefit fund immediately available.
2. All members are formed into groups of 1000 each, according to age. Group members agree to make a contribution of $1.35 to the Association within 30 days after being notified of the death of a member of his own group $1.00 of each contributing member goes immediately to the heir or heirs designated by the deceased. Maximum Benevolent Fund to a Deceased's Heirs Is Therefore $1,000.00.
The balance of each contribution goes for operating costs of the Association.
3. Failure of a member to make contributions as called shall cancel his membership.
4. The only additional contributions are initial membership contribution and annual expense contribution as set out below.
5. All representatives of the Association are fully bonded.
Contributions--These are members' Only costs:
I. Initial membership contribution:
--Individual ..................................................... $ 7.50
--Husband and Wife ................................................ 12.00
--Family Plan (to include husband, wife and all children at home 15.00
up to age 18)
II. Annual Expense contribution, per person ............................ 2.00
After first year .................................................. XXXXX
III. Death benefit contribution, upon death of a member of Your Own
Group Only ....................................................... 1.35
I hereby apply for membership in the A & F Home Benevolent Association, for myself and such other family members as are shown above.
Dated 1 day of May, 1958.
/s/ Elmer B. Murphy
Received of Mr. Elmer B. Murphy, $12.00 initial membership contribution as per the above.
Dated this 1 day of May, 1958.
A & F Home Benevolent Association
By /s/ Kenneth E. Roseland
The Original of This Application to Be Kept by the Applicant Thank you very much'
Mr. Murphy made the payments necessary to remain in good standing. He died on February 18, 1960. At that time there were 141 members in his group. Notices were sent to the members and 135 responded by making payment. The defendant tendered $135 to Mrs. Murphy, the plaintiff herein. Mrs. Murphy has demanded the sum of $999 and has refused to accept the $135 tendered in satisfaction of the defendant's obligation.
The trial court found for plaintiff and rendered judgment against defendant in the sum of $999, together with interest and costs. We can not find evidence in this record to support this judgment.
I. Defendant-appellant filed no motions for directed verdict, for judgment notwithstanding the verdict, for new trial nor for enlargement of findings. Appellee now argues that without such procedure no appealable question has been preserved for presenting to us. We do not agree.
This is a law action. The trial court's findings have the effect of a special verdict. Rule 334, Rules of Civil Procedure, 58 I.C.A., Staley v. Fazel Bros. Co., 247 Iowa 644, 75 N.W.2d 253. However, Rule 179, Rules of Civil Procedure, provides: 'But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding, without having objected to it by such motion or otherwise.' Beardsley v. Hobbs, 239 Iowa 1332, 1335, 34 N.W.2d 916, 917, says: 'Under Rules of Civil Procedure, rule 179, it is clear defendants have the right, upon appeal, to challenge the sufficiency of the evidence to sustain the questioned findings.' II. The trial court commented, 'This 'plan', contract or policy, or whatever name one may wish to designate it, is perhaps more interesting in what...
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