St. Clair County Benevolent Society v. Fietsam

Mr. Justice Scott delivered the opinion of the Court: This action was brought by the administrator of Christian Eierkuss, deceased, against the St. Clair County Benevolent Society, on two certificates of membership issued to decedent by the defendant society. The one declared on in the first count of the declaration constituted deceased a member of division Ho. 1, and that mentioned in the second count, a member of division Ho. 2 of the society. Whether they are called “certificates of membership” or “policies of insurance” is a matter of no consequence. Each certificate contained the following provision, viz: 66 The St. Clair County Benevolent Society, in consideration of the representations made to it in the application for membership, and the'sum of $2.50, to it in hand paid by Christian Eierkuss, * * * and the sum of $1, to be paid by the said Christian Eierkuss, within twenty days after due notice has been served upon him, of the death of a member of the society, and the further sum of 50 cents within twenty days after due notice has been served at the beginning of each year of membership, do promise and agree to and with the said Christian Eierkuss, self, (see back of policy), or the legal representatives of the said Christian Eierkuss, self, and proof of interest, of assignment, or held as security, the sum of $1 for every person, member of the society and of the same division or divisions at the time of such payment.” By the second clause of the certificate or policy, it is made null and of no effect upon the failure of the assured to pay all assessments provided for, and in case he should, without the consent of the society previously obtained in writing, engage in any military or naval service, or engage in mining. A third clause declares it is understood and agreed, if the assured should come to his death by the hands of the law, $50 and no more, if so much shall be collected, shall be paid to his heirs, executors or assigns, and if he should die by suicide, or without heirs or assigns, $50, if so much shall be collected, shall be paid towards the funeral of the assured. On the back of the certificates, among others, were indorsements, showing what disposition assured desired might be made of the money when collected, and also the following: “Mutual insurance on the life of Christian Eierkuss.” “Due at death of members, $1.” “Date, May 8, 1876.” In each count of the declaration, one of the certificates is set out in hcec verba, with appropriate averments as to the death of the assured, the payment of all assessments by him, and negativing everything the happening of which would make the policy null and of no effect. It will be observed, the body of the policy is silent as to when the sum agreed to be paid by the society is payable, but it is averred in the declaration, it “was to become due and payable” at the death of the assured. It is not questioned that notice of the death of the assured was given in due time, and that he had paid all assessments made against him in his lifetime. Oral proof was made it was understood the sum secured by the policy was payable at the death of the assured, and also of the number of members of each division of which decedent himself was a member. The jury found a verdict for $1285, which was $1 for each member of the two divisions at the time of the death of assured, upon which the court rendered judgment. The Appellate Court affirmed that judgment, and now the society bring the case to this court on error. In the first count the pleader undertook to set out in hceo verba the certificate of membership in division No. 1 issued to decedent, and an objection is taken, there was a variance between the certificate offered in evidence and the one contained in the declaration. It is a sufficient answer to say, no variance between the proof and the declaration in this respect was called to the attention of the circuit court when the instrument sued on was offered in evidence. A general objection was taken, there was a variance. That is not sufficient. The party objecting should have fpointed out wherein the variance existed. Had that been done, under our Practice act an amendment could have been instantly made that would have avoided the objection, so that the trial could have proceeded on such terms as the court might have seen fit to impose. Nor is there any force in the objection, the policies had been assigned by the assured. Such is not the case. Directions were written on the back of each policy, that the sum secured should be distributed among certain beneficiaries named, and that was all that was done. There was no assignment of either policy to any one. It will be observed the policy contained a provision, the society would pay assured or his legal representatives $1 for every person a member of the society and of the same division ordivisions “at the time of such payment.” Parol evidence was admitted to show the number of members at the time such payment should be made, in order to arrive at the measure of damages. That decision was clearly correct. Such evidence is admissible for that purpose, otherwise there would be no mode of ascertaining the sum recoverable under the policy. The question of most seeming difficulty is, when did the sum secured by the policy become payable. It is averred in the declaration, it was to become due and payable on the death of the assured. The effect of the objection taken is, that the ambiguity that may exist in the contracts or policies can not be helped either by averment or parol evidence. That objection need not be discussed. But construing the body of the policy with the indorsements on the back, to which reference is made, it is plain the instrument is set out according to its legal effect in the declaration. Disregarding all parol testimony, the indorsements on the back of the policy, which are referred to in the body of the instrument, indicate unmistakably the policy was to become due and payable at the. death of the assured. Such expressions, “mutual assurance on the life of Christian Eierkuss,” “due at the death of members, $1,” are meaningless unless they indicate the parties understood the sum secured was to become payable at the death of members. Expressions in the body of the policy induce the same belief. Such as, should the assured “ come to his death by the hands of the law,” or “should die by suicide, or without heirs or assigns,” and reading the body of the instrument in connection with its indorsements, the legal effect is, the policy is payable at the death of the party insured. The agreement of defendant was absolute, to pay the legal representatives of the assured Si for every member of each division of which he was himself a member at “the time of such payment,” and that, as we have seen, is at the death of the assured. The exception, “if so much be collected,” has reference only to the sum of $50, to be paid on the happening of certain contingencies which never did occur to the assured in this case. The damages found are, therefore, such as arise from the contract. It must be admitted these “certificates of membership,” or policies, are inartistically framed, and that some of the clauses contained in them would be nearly or quite unintelligible if separated from the context and attendant circumstances. But they ought not, for that reason, to be declared of no binding obligation. With the aid of parol testimony, that in no manner contradicts, varies or adds to the terms employed, and reading the policies with the indorsements thereon, which is authorized by the reference made to. them, their meaning is made sufficiently definite. It is made to appear the assured complied with the conditions of the policies in every particular, and it is but just defendant should be compelled to perform the conditions to be observed on its part as the parties understood them when they made their contracts. The judgment will be affirmed. Judgment affirmed.