United Woodman Benefit Ass'n v. Ivy ( 1916 )

Smith, C. J.,

delivered the opinion of the court.

Appellee instituted this suit in the court below to recover of appellant upon an insurance policy by it, which provided for the payment to appellee upon the death of the insured of “a sum equal to the total assessments of the members of the U. W. B. A., who shall meet their assessments for the benefit of said member, and not to exceed the sum of one thousand dollars.” At the trial a judgment by default was rendered, awarding appellee tlie sum of nine hundred fifty dollars plus interest; she having admitted in her declaration the payment to her of fifty dollars upon the amount due under the policy. The appeal is from this judgment; and the first assignment of error is, that the court erred “in permitting a default judgment to be taken without introducing any evidence .at the hearing as to the actual amount due, and without having had a writ of inquiry first issued to determine the amount actually due on said contract. On account of all of which the judgment is void.”

It seems to he admitted by counsel for appellant, and all of the authorities which have come under our observation hold, that if the promise in the policy here in question had been to pay appellee the sum of one thousand dollars or so much thereof as may be realized from one assessment of all the members of the U. W. B. A., prima facie the amount due would be one thousand dollars and the burden would then rest upon the appellant, in event it desired to reduce the amount claimed by the insured under the policy, to allege and prove that the sum collected from its members by the assessment was less than one thousand dollars. One of the reasons given by the courts for so holding is that the facts relative to the assessment and the sum of money realized therefrom are not known to the beneficiary in the policy, bul; are peculiarly within the knowledge of the officers of the benefit association. This reason applies with equal force here.

Moreover, such a provision in a policy is identical in effect with the one here in question; the apparent difference between them being caused by reason of the fact that the two are couched in different language. A promise to pay one thousand dollars or so much thereof as may be collected from certain persons, is exactly the same in effect as a promise to pay such sum as may be collected from certain persons not to exceed one thousand dollars. We are of the opinion, therefore, that the prima facie value of the policy in question is one-thousand dollars. While there are authorities to the-contrary, this view is fully supported by People’s Mutual Benefit Society v. McKay, 141 Ind. 415, 39 N. E. 231, 40 N. E. 910; Association v. Houghton, 103 Ind. 286, 2 N. E. 763, 53 Am. Rep. 514; Lawler v. Murphy, 58 Conn. 294, 20 Atl. 457, L. R. A. 113; Supreme Council, etc., v. Anderson, 61 Tex. 296; Lueders’ Ex’r v. Hartford Life Annuities Ins. Co. (C. C.), 12 Fed. 465.

As pointed out by counsel for appellant, the declara-ation “does not allege a failure or refusal to make the assessment, that if such assessment had been duly made it would have resulted in the collection of the full amount called for by the certificate and claimed that sum or damages for such failure or refusal.” This allegation was unnesessary, for, as we have pointed out, the prima-facie value of the policy is one thousand dollars, and if appellant desired to show that the amount due-in fact,is less, allegation and proof thereof devolved upon it.

The second assignment of error sets forth that the-court erred “in permitting a default judgment to be-entered for appellee without having the original policy sued on offered in evidence or its loss or destruction; accounted for.”

A copy of the policy sued on was filed with the-declaration, but it does not appear from the record whether or not the original thereof was produced at. the trial and filed with the papers in the case. The only case cited in support of this assignment of error is Vickery v. Rester, 4 How. 293, wherein it was said that where a judgment by default is rendered in a suit upon a promissory note, under “the long-established practice of our courts, . . . the note should be produced and filed, not only for the purpose of seeing whether there are credits indorsed, but for the sake of propriety, and for the benefit of the defendant.”

■ Leaving out of view any change which, may have been made in the rnle announced in that case by the enactment of- sections 734 and 735 of the Code, as to which we express no opinion, this assignment of error cannot he sustained, for the reason that if 'we assume that the long-established practice of our courts referred to includes all written instruments sued on, it does not affirmatively appear from the record, by bill of exceptions or otherwise, that the policy was not produced on the trial; consequently, we must assume that it was,, conceding for the purpose of the argument that it was necessary for this to have been done. Vickery v. Rester, supra, Biles v. Wolf, 49 So. 267; Wanita Mills v. Rollins, 75 Miss. 253, 22 So. 819.

Affirmed.

Sykes, J., having been of counsel in the court below, took no part in the decision of this case.