Rambousek v. Supreme Council of Mystic Toilers

93 N.W. 277, 119 Iowa 263

• Court: Supreme Court of Iowa
• Decided: January 28, 1903
• Status: Published

Opinion

Sherwin, J.

i admission siot oTevidence: error.

The plaintiff sues to r.ecover on two • certificates of membership issued by the defendant to her deceased husband, Joseph Kambousek. The constitution defendant required the beneficiary, in making- proof of death, to show by the affi¿avj^s 0f ^g president and secretary of the subordinate council the record therein of the deceased member. The plaintiff prepared and presented to these officers for their signatures an affidavit which they claimed was false, and which was in fact a false statement of the record standing of her husband at the time of his death, and they refused to sign it. It was admitted in evidence against the objection of the defendant, and, in our judgment, this was prejudicial error. It was, perhaps, competent for the plaintiff to show that she attempted to comply with the requirements of the association in this respect, but the paper which she had prepared, and which she was allowed to put before the jury, contained a statement that the assessment which the- defendant claims was not paid was in fact paid, and that the record of the subordinate council so showed. In addition' to this, there was her own affidavit attached thereto, which, in effect, stated that her husband had paid all assessments due at the time of his death, and that she held receipts therefor, all of which wa,« incompetent.

The plaintiff was also permitted to put in evidence receipts showing the payments of assessments against heron certificates of her own membership in the order. This was error. They were immaterial and incompetent, under any aspect of the case, when they were received, and, even adopting the theory of the appellee that some of them might have been material in rebuttal as tending to explain disputed receipts claimed to have been given to her husband, they were not all so competent, and the Exhibit G, as a whole, should not have been received.. The affidavit of J. F. Taake as to the publication and mailing of the Mystic Toilers should have been received, though its exclusion would not alone, under the circumstances, justify a reversal; and the same is true regarding the offer to prove the report of the officers of the subordinate council.

2. evidencetoTuppoiif verdict. It is contended that the verdict is not supported by the evidence, and this, we think, is true. The law of the order provided for assessments to meet death claims, the only calls for which were to be made through the medium of a paper published and mailed member of the order; and, if such assessments were not paid according to the requirements, the beneficiary certificates became void. It is claimed, and, we think, proven beyond controversy, that the call for assessment No. 4 was duly published and mailed to the deceased, and that he failed to pay such assessment. The record of the subordinate council of which the deceased and the plaintiff were members shows that this assessment was not paid, and it is so shown by the officers of such council, and the only testimony tending to contradict this is the statement of the son of the plaintiff that the secretary said to him, after his father’s death, that the father was in good standing, and this is denied. But, even if it is true that he so stated, it would tend to contradict this particular witness only, and there is other evidence, uncontradicted and unimpeached, which shows that no payment of the assesssment had been made.

It is true there was put in evidence over the defendant’s objection two receipts, Exhibits H and K, which are before us, which it is claimed were given for the assessment in question. They both, however, clearly show erasures and alterations in the name of the party to whom they were given, and there is not a word of testimony tending in any way to explain the alterations, except that of the secretary of the council, who said that they were receipts given to the plaintiff for her individual assessments at another time. Under such circumstances the receipts were inadmissible as evidence of the payment claimed, and should not have been received for the consideration of the jury, and cannot now be considered by us as tending to show such payment. The burden was upon the plaintiff to explain the alterations, and this she wholly failed to do. Robinson v. Reed, 46 Iowa, 219; Maguire v. Eichmeier, 109 Iowa, 301; 1 Greenleaf, Evidence, section 564; Stephens, Digest Evidence, 158, note 1.

3 same- death froinass^ssments. As we have before stated, the defendant is an assessment company, and by the terms of the certificates sued on the plaintiff would only be entitled to receive the proC8eds derived therefrom. The uncontradicted evidence shows that the defendant-had no other means of paying these certificates, and it is not shown that any such assessment had been made, or that any definite sum could be derived therefrom. Bailey v. Association, 71 Iowa, 689; Rainsbarger v. Association, 72 Iowa, 191. The constitution of the defendant provides for an equalizing fund, which may be drawn upon for the payment of death losses, when the “death rate shall exceed seven deaths per one thousand members per year, and not less than seven assessments have been made for that year”; 'and the plaintiff argues that she is entitled to a judgment at law thereunder, and under the authority of Hart v. Association, 105 Iowa, 717. But the trouble with this contention is that the evidence affirmatively shows that the fund in question could not be used for the payment of this loss, because the conditions allowing its use therefor did not exist. The plaintiff was not, therefore, entitled to a judgment at law for the amount claimed, and, if entitled to a judgment at all, it could only have been for a nominal sum.

We do not discuss the other assignments of error, because of their insufficiency.

.For the errors pointed out, the judgment is reversed.