Opinion
No. 3079
December 31, 1934.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, J.
Henderson Marshall, for Appellant:
C.D. Breeze, H.M. Morse, and Guy E. Baker, for Respondent:
The testimony of plaintiff herself clearly shows that receipt No. 2809 as arranged in the photostatic exhibit No. 22 should have properly been presented in plaintiff's exhibit No. 21, showing two overpayments for 1930, and her testimony shows that she received credit for January and February of 1931 for the two overpayments claimed. It is contended by plaintiff that receipt No. 4455 constitutes an additional payment, which, under their theory and the theory of the court below in deciding the case, constitutes the 52d payment. Without the aid of plaintiff's exhibit No. 5, the receipt stub No. 4455, from the testimony above outlined, denotes clearly that Mrs. Willis never received a receipt for January of 1931, nor did she receive a receipt for February of 1931; and in the photostatic copy it will be noted that by changing receipt No. 2809 back to its proper place in plaintiff's exhibit No. 21, then there are only ten payments accounted for in the year 1931, instead of eleven, as set forth in the exhibit. So that it seems clear from this interpretation of what transpired that Mrs. Willis was mistaken in the presentation of her evidence, and admits that she is still short one payment, unless any weight can be relied upon from plaintiff's exhibit 5, which is the duplicate deposit slip. It will be noted that receipt No. 4477 is marked in payment for dues for the month of March, 1931, but that said receipt bears no paid stamp from the Bank of Ruth (see subdivision (d), sec. 13, art. 12, p. 159, of the constitution and bylaws), as do a large number of the other receipts. The testimony of the plaintiff's witness, Mr. Lathrop, and the defendant's witness, Mr. Hopson, both show positively that that receipt was not taken up at the bank, and Mr. Lathrop says it was given to her in lieu of the bank's deposit slip.
The appellant respectfully contends that the period of contractual limitation had run prior to the commencement of the suit, and that respondent is entitled to none of the benefits of the policy, by reason of failing to bring her action within the time prescribed under and pursuant to the terms of the policy. 7 Couch on Insurance Law, sec. 1656, n. 40, p. 5753; Dickirson v. Pacific Mut. Life Ins. Co., 150 N.E. 256, head note 7.
The brotherhood does not waive its right to avoid or take advantage of forfeiture merely by inviting negotiations for settlement in disputed claims for benefits. Mutual Protective League v. Walker, headnote 3, subnote 3, p. 805; Daly v. Concordia Fire Ins. Co. of Milwaukee, Wis., 65 P. 416; Cooper v. Phoenix Accident Sick Benefit Ass'n. of Benton Harbor, 104 N.W. 1034; Hughes v. Wisconsin Odd Fellows Mut. Life Ins. Co., 73 N.W. 1015, n. 2, at p. 1017.
Although the issuance of enough official receipts to cover the entire period is shown, plaintiff has introduced a duplicate deposit slip for the amount of an assessment paid to the Ruth Bank on March 20, 1931, and marked for March dues. Mr. Lathrop testified that this amount was credited to defendant's account at the bank. He surmises that an official receipt was afterwards delivered for such payment, but that statement shows no knowledge on his part that such was actually the case. He does not testify that he himself delivered the receipt without taking up the deposit slip, and without receiving additional money therefor, and the receipt No. 4477, punched for that month and held by plaintiff, does not bear the bank stamp, so that it is obvious such receipt was in fact not delivered by the bank, but in some other way. Mr. Hopson does not testify positively that receipt No. 4477 was delivered in lieu of said deposit slip and without the payment of additional money therefor. It is significant that the deposit slip was not in fact taken up when receipt No. 4477 was delivered. The deposit slip conclusively shows payment of an assessment for March, 1931. The receipt also shows such payment, but its possession does not in anyway negative the validity of the deposit slip as showing the payment of an additional assessment for that month. In March of the prior year, it is undisputed that the assessment was paid twice, which is also true of February, 1930, so that it is not at all unreasonable to believe that the deposit slip and the receipt No. 4477 show a double payment for March, 1931. There is nothing on the receipt to show when it was actually delivered, nor to whom. It may have been delivered to Hiram A. Willis himself, either before or after the payment made into the bank by Mrs. Willis on March 20, 1931, shown by the deposit slip. There is no testimony whatever to impeach this deposit slip as evidence showing an additional payment. An official receipt is not indispensible where payment is made to an agent authorized to receive such payments. So. Life Ins. Co. v. McCain, 24 U.S. (Law Ed.) 653; 32 C.J. p. 1309, sec. 550; East v. Prudential Ins. Co. of America, 42 N.Y.S. 584; 32 C.J. p. 1197.
We respectfully contend that there was no final rejection of the claim whatever, nor was there any consideration given the claim by the proper tribunal established by the brotherhood, if in fact Hiram A. Willis was a member in good standing in the order at the time of his death. This is admitted by the testimony of Albert Phillips. We also contend that a fraternal beneficiary association cannot constitute one certain officer as a secretary or medical examiner as its constitutional tribunal for the final acceptance or rejection of claims. Biship v. Brotherhood (Mich.), 171 N.W. 528.
Moreover, if there is any merit at all in the contention that the claim was finally rejected by the letter of Albert Phillips of July 1, 1932, the defendant company has waived that provision by its acts, as set forth in the correspondence between the beneficiary in this action and the different officials of the defendant company, and by reason of aforesaid acts, representations and correspondence, the defendant company is estopped to assert the contractual period of limitation contained in the policy.
OPINION
In December, 1927, Hiram A. Willis took out a policy of insurance in the mutual insurance department of the defendant, an unincorporated beneficiary society, with plaintiff as beneficiary. He died on May 30, 1932. Being unable to procure a settlement from the defendant, plaintiff brought suit and recovered a judgment. Defendant has appealed from the judgment and the order denying its motion for a new trial.
The parties will be referred to as plaintiff and defendants, as in the trial court.
The defendant pleaded two defenses, forfeiture for nonpayment of monthly assessments or dues, and that the action was barred because not brought within the time limit after final rejection of the claim. We quote from defendant's opening brief as follows: "In order to continue deceased's policy in full force and effect to and including the day of his demise on May 30, 1932, it would have been necessary for plaintiff to show that fifty-two (52) monthly installments had been paid. There are introduced in evidence in this cause fifty duly authorized receipts, which are attached to Transcript on Appeal as plaintiff's Exhibit 3. There is one receipt bearing No. 2809 admitted by the trial court subject to objection, which said receipt is attached to Transcript and is a part of this Appeal, as plaintiff's Exhibit No. 4. There is a duplicate deposit slip from the Ruth Bank introduced in evidence as plaintiff's Exhibit No. 5. * * * This exhibit No. 5 was admitted subject to the objection that it is not a receipt for payment of dues as is contemplated by the By-Laws and Constitution of the Brotherhood."
As a basis for its judgment, the trial court found as a fact that at the time of the death of the deceased all of the payments due under the terms of his policy had been made, and that he was in good standing. The court further found that the action was instituted within apt time. If these findings can be sustained, the judgment must be affirmed.
Defendant assigns two errors on this appeal, namely, that the evidence is insufficient to justify the decision of the court, and that the period of contractual limitation had run, thereby barring the action, at the time it was instituted.
We will first consider the question of the sufficiency of the evidence. As we have pointed out, counsel for defendant in their opening brief show that, to enable plaintiff to show that the deceased was in good standing in his payments at the time of his death, it was necessary only that she show that fifty-two payments had been made. In that same statement of counsel it is said that fifty-one receipts were introduced in evidence, and that one bank deposit slip was introduced in evidence. From this situation it appears, on the face of the matter, at least, that the only question remaining as to this phase of the case is as to the payment to the bank. The deposit slip shows on March 20, 1931, a payment was made on account of dues of H.A. Willis. There is in the record a receipt signed by the financial secretary of defendant, for dues for March, 1931, as of March 25, 1931. It also appears from the receipts that two payments were made in June, 1928, two in August, 1928, three in October, 1928, two in January, 1929, two in April, 1929, two in October, 1929, and two in April, 1930. It also appears that it was the custom over quite a period of time for these payments to be made at the Ruth Bank. Some of the payments were made by the deceased and some by the plaintiff.
1, 2. It is said that the deposit slip is not a receipt for dues or assessments, and hence under subdivision (d), section 13, article 12, of the constitution and by-laws of the defendant, the deposit slip should not have been admitted in evidence. The section mentioned makes it the duty of the financial secretary to collect dues and to issue an official receipt on a form furnished him. We think there is no merit in the contention. If the payments are made, that is all that is required of a beneficiary. We fail also to see the force of the contention relative to the duplicate assessment made for January, 1928. This is pursuant to requirement. Receipts were issued for the duplicate payment due in January, 1928, and fifty receipts for other payments are in evidence, which, counting the one evidenced by the bank deposit slip, which is of a different date from any of the receipts, account for fifty-two payments, unless some of them were duplicate payments. There is a considerable conflict as to the payments. The trial court heard the evidence as to this, and was in a better position than we are to reach a correct conclusion. It not clearly appearing that the trial court reached a wrong conclusion, we feel bound by its finding on this point. Valverde v. Valverde, 55 Nev. 82, 26 P.2d 233.
3. The policy sued upon provides that any action thereon must be instituted within six months from the final rejection of the claim by the highest tribunal of the society. It is contended that the claim was finally rejected on July 1, 1932. This contention is based upon a letter from A. Phillips, the head officer of defendant, of that date. Thereafter, and on August 11, 1932, Mr. Phillips wrote plaintiff relative to the matter, closing his letter by stating: "* * * Before attempting to answer your last communication I desire to investigate the matter and upon receipt of requisite information will write you further." Does this look like the matter had been finally closed? If closed, why "investigate" further? Why, if the matter had been finally closed, did he say, "upon receipt of requisite information will write you further?" On May 17, 1933, Mr. Phillips wrote the plaintiff, stating: "Referring again to your letter of February 22nd, on the above subject (claim here involved) may we say that this item has not been neglected but has been a matter of frequent discussion with the Brotherhood officers." Does this look like the claim was considered on May 17, 1933, as having been finally rejected on July 1, 1932? Clearly not. We do not think the court erred in this connection.
Judgment affirmed.