Opinion
June 8, 1906.
Edward S. Peck, for the appellant.
Edwin Louis Garvin, for the respondent.
This action was brought by plaintiff as assignee under a benefit certificate issued by defendant to Henry Victors, deceased.
In her complaint the plaintiff alleged full performance on the part of insured: "that said Henry Victors at all times performed all the duties incumbent upon him as a beneficiary member of said corporation, and at all times promptly paid all dues and assessments as provided in and by the laws, rules and regulations of said corporation, and has otherwise complied with all the requirements thereof, and performed all the conditions on his part."
This allegation was denied by defendant.
Upon the trial plaintiff offered evidence, which was received over defendant's objection and exception, for the purpose of establishing a waiver on the part of defendant of full performance as a condition precedent to a recovery.
It appears that deceased had failed and neglected to pay his premiums as required by defendant's rules, and was suspended from membership, and at the time of his death had not been reinstated. The verdict was directed by the learned trial court upon the theory that defendant had waived the right to insist upon actual reinstatement of the deceased after his suspension, although the laws of defendant required this to be done. We think the admission of evidence tending to establish a waiver was error. The issue presented by the pleadings was whether insured had complied with the rules and laws of defendant, not whether defendant had waived compliance with them, and defendant had a right to insist that the action be tried upon the issues presented by the pleadings.
The stipulation to which our attention is called does not help the plaintiff. It cannot be regarded as an amendment, or as in any way changing the issues; "each party expressly reserves any right it may have to show at the trial a waiver," etc. Neither party had a right to introduce evidence of a waiver. None is given by the stipulation.
We cannot say that it will be impossible for plaintiff to establish a cause of action under a proper pleading, and a new trial ought, therefore, to be granted.
The judgment should be reversed and a new trial granted, costs to abide the event.
HIRSCHBERG, P.J., JENKS and HOOKER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.