Passenger Conductors' Life Ins. v. Birnbaum

Opinion, Mr. Justice Paxson: We think the court below erred in instructing the jury that ■ assessment No. 117, upon the death of Skinner, was illegal. The only testimony upon this point was that of Walker Lackey, the secretary and treasurer of the defendant company, called by the plaintiff. He said: “ At the meeting of December 5, 1882, there were present of the directors, Southwick, Gordon and Kenney. I submitted to the board at that meeting the notice I had received of the death of Richard L. Skinner. The proofs of his death not having arrived, the board directed the chairman of the board of directors to examine them when they should arrive, and, if found to be correct, I was instructed to issue notices of an assessment. The proofs afterwards came, were examined by the chairman of the board of directors, who found them correct and who approved them, and assessment No. 117 was made accordingly. No other meeting of the board of directors was held until March, 1883. .....There was no other vote of the board of directors ordering assessment......As the proofs of Mr. Skinner’s death not being made at the December meeting could not have been acted on by the board until March, in order that his representatives should not be delayed in getting their money, it was directed that when the proofs should arrive, if found correct by the chairman of the board of directors, and approved by him, I was directed to issue notice of assessments. This was the ordinary custom of the board where the proofs of death had not come to hand with notice of death, and was done for the convenience of members, so that money to which they were entitled could be sooner collected and paid over.” It is conceded that if Birnbaum was in default his widow has no claim. That he did not pay assessment No. 117 is not disputed.. It is said, however, that it was illegally assessed. [572] That it was done in entire good faith can hardly he questioned. That it was done in such manner as to save delay and give the deceased member’s family their money as early as practicable, seems equally clear. The mode of making the assessments was the usual mode; it was done by a mutual association of which Birnbaum was a member, and it was admittedly a just and proper assessment, one which the company was bound in good faith to make. The principal objection to the assessment is that it was not made by the board, but by the chairman of the board. We do not so understand the testimony. The assessment was ordered by the board, subject to the approval of the proofs of loss by its chairman. Section 4 of the by-laws expressly provides that the chairman shall “ approve all proofs of death for which an assessment is to be ordered.” The fact of the death of Skinner was before the board in December, but the proofs required by the rules had not come in. When received in proper form the duty of ordering an assessment followed of course. We do not think what the board did in the matter was so irregular as to be void and to justify Birnbaum in refusing to pay his dues. There would have been more force in the point that the allegata and the probata did not agree, if such an objection had been made upon the trial of the case. While it is conceded that the narr. does not set out the cause of action properly, the case has been tried upon the merits, and we would not disturb the judgment on that ground. The court below could have allowed an amendment if the point had been taken on the trial. We will allow it here, and consider the narr. amended. Upon the whole, we are of opinion that the judgment must be reversed. We could have said this before if the paper book of the plaintiff in error had contained any evidence that an exception had been taken below. The opinion heretpfore filed is now withdrawn, the judgment entered thereon vacated, and the judgment below Reversed.