Mutual Aid Union v. Wadley

Wood, J. (after stating the facts.) The court erred in refusing to grant appellant’s prayers for instructions numbered respectively 1, 2, 3 and 4, as above set forth. These instructions were intended to submit the issue as to whether or not Mrs. Wadley had complied with the provisions of the contract of insurance requiring her to make prompt payment of the assessments in order to keep her policy. There was testimony to warrant the submission of such issue to the jury. It was a question for the jury, under the evidence, as to whether or not appellant complied with the provisions of the contract in giving notice to the insured of the assessment against her by ordinary mail, as provided in the contract. The court, by refusing to grant appellant’s prayers for instructions on this issue, refused to submit the same to the jury. While there was no proof by the secretary, the president of the company, or any of the office force in this department of the company’s business, that they in person mailed a letter to the insured notifying1 her of the assessment levied against her, yet there was testimony showing appellant’s system of doing business and the record that was made by it with reference to the mailing out of these notices, and showing the standing of the members in regard to the payment or non-payment of assessments when such notices were mailed as the contracts provided. The testimony in regard to appellant’s system of business and the record that it kept was competent as tending to show that appellant had complied with its contract, and that the insured had not paid the assessment of February, 1914, as the contract required. This was an issue for the jury which the court erred in taking away from them. The effect of the court’s ruling was to declare as a matter of law that the appellant had not complied with its contract by failing to give the insured notice of the assessment, and that the company was therefore precluded from setting up the failure on the part of Mrs. Wadley to pay the assessment which the appellee admitted had not been done. It will be remembered that the president testified that it was a part of the system of the company to keep a record of the standing of each member by the card system, which he explained and exhibited the original record card of the membership of Mrs. Wadley which was kept under his supervision and that these records show that the notice had been given by mail. This card was intended, as explained by the president, to be a record of what was done when the member was notified, as the contract required. The jury had a right to infer from this testimony, as introduced and explained by the witness, that notice of assessment had been mailed to Mrs. Wadley as the contract provided and that she had failed to pay the same. It was error for the court to deprive the appellant of the benefit of this issue before the jury. For the error in refusing to grant the prayers for instructions set out in,the statement the judgment is reversed and the cause will be remanded for a new trial.