Smoot v. Bankers Life Ass'n

1. INSURANCE: Assessment Companies: Construction of Certificate. Wliere a certificate of insurance has an indorsement on its back to the effect that benefits are to be provided for by assessments on the certificate holders, such indorsement must be construed along with the face of the certificate. 2. -: -. Where an insurance company in the usual conduct of its business provides for the payment of benefits ■ due from it by levying an assessment upon persons holding certificates of insurance, such company is doing the business of insurance upon assessment plan according to section 7910, Revised Statutes 1899. 3. -: -: Non-forfeiture Laws. Insurance companies engaged in the life insurance business on the assessment plan are not subject to the non-forfeiture provisions of our insurance laws as contained in section 7897, Revised Statutes 1899. 4. CORPORATIONS: Foreign Corporations: Conflict of Laws. Where a foreign corporation undertakes to do business in this State it must conform to the laws of this State and cannot avail itself of the benefits of our law without bearing its burdens. 5. -: -: Charter: Notice: Duty of Persons Dealing With a Corporation. When a corporation organized by one State is authorized by the laws of another State to do business in the latter, it carries with it its charter and the law under which it is incorporated, and persons dealing with it are bound to take notice of the provisions for the control of its affairs contained in such charter and laws. 6. -: By-laws: Members. Members of a corporation are bound to take notice of its by-laws and are bound thereby. 7. -: Insurance Companies: Assessment Plan: “Ultra Vires.” When a corporation has been organized for the purpose of carrying on life insurance business on the assessment plan it is “ultra vires" the corporation to transact business on any other plan. 8. INSURANCE COMPANIES: Foreign Corporations: Authority to do Business in This State: Assessment Plan. When a foreign corporation has been authorized by the Superintendent of the Insurance Department to carry on a life insurance business in this State on the assessment plan it has no lawful authority to make life insurance contracts on any other plan. 9. -: Assessment Companies: Certificate Holder: Estoppel. Where the holder of a certificate of insurance in an assessment insurance company has paid assessments upon notice from the company, varying in amount from a few cents to six or seven dollars, for a long period, he cannot be heard to say that he did not know the company was doing insurance business on the assessment plan. 10. -'■ — : -: -: Forfeiture: Damages. Where the holder of a certificate of insurance has forfeited his policy by non-payment of assessments he cannot maintain an action against the company for damages for the forfeiture of his' policy. 11. -; -; -: -: Estoppel. The fact that an assessment insurance company has permitted members who have forfeited their membership - through non-payments of assessments to be reinstated upon presentation of a health certificate, does not preclude it from refusing reinstatement to any particular member who has forfeitured his membership through non-payment. 12. TRIAL PRACTICE: Objections to Evidence: Withholding Ruling by the Court. Where evidence was objected to and the court permitted it to be given stating that he would rule on its admissibility when he determined the case, such action by the court is reversible error if excepted to at the time. 13. INSURANCE: Policy: Present Worth: Evidence. Where the face value of an assessment plan insurance policy is $2,042 and the present worth of such policy when calculated on the basis of the assessment plan is $864.80 and when calculated on the basis of old line insurance is $453.52 a judgment for $1,620 damages for forfeiture of the policy, was not supported by the evidence. 14. -: -: Assessment Companies: Present Worth. An assessment insurance policy, on which no level premiums are paid and which matures only at the death of the insured, where the company has no reserve fund applicable to the payment of losses, has no surrender value during the lifetime of the insured.

Appeal from Scotland Circuit Court. — Hon. Chas. J. Stewart, Judge. Defendant is an assessment life insurance company-under the Missouri statute, because it appears from the contract as practically construed by the parties that it has no level and fixed premiums. McCoy v. Bankers Life Assn., 134 Mo. App. 35; Westerman v. Supreme Lodge, 196 Mo. 670; Williams v. St. Louis Life, 97 Mo. App. 454; Hayden v. Mut. Reserve, 98 Fed. 200; Armstrong v. Brotherhood, 112 S. W. 24, 3 Mo. Annotated Statutes, 1906, sec. 7901, and cases cited. Being an assessment insurance company defendant is expressly exempted from the provisions of the non-forfeiture law. R. S. 1899, Annotated, sec. 7910; Statutes 1906, vol. 3; McCoy v. Bankers Life Assn., 134 Mo. App. 35. The failure of a member in an assessment association to pay his assessment in the time provided, terminates his membership, if so provided in the contract. McCoy v. Bankers Life Assn., 134 Mo. App. 35; Lavin v. Grand Lodge, 104 Mo. App. 17, 78 S. W. 329; Smith v. Sovereign Camp, 179 Mo. 119, 77 S. W. 862; Lehman v. Clark, 174 111. -279, 51 N. E. 222; Kennedy v. Grand Fraternity (Mont.), 92 Pac. 971, 25 Cyc. 831. Measure of damages even under an old line contract (aside from the non-forfeiture statute) in case of wrongful termination of the contract is the difference between the present worth of the indemnity for the plaintiff’s expectancy of life, and the present Avorth of his premiums for the same period, with interest on such difference from such wrongful termination. (Kelley v. Security Mut. Life, 94 N.-Y. S. 601; Mut. Eeserve y. Ferrenback, 144 Fed. 342), or the amount of premiums paid.' Suess v. Insurance Co., 64 Mo. App. 1; VanWerden v. Eq. Life, 99 Iowa 621; Key y. Natl. Life, 107 Iowa 446, 78 N. W. 68; McCall v. Insurance Co., 124 N. C. 9, 32 S. E. 323; Dickey v. Conn. Mut. Life, 82 Mo. App. 372. The bylaws of a society are binding upon all of the members and all are conclusively presumed to know them. 1 Bacon, Benefit Societies (3 Ed.), sec. 81; Coleman v. Knights of Honor, 18 Mo. App. 189; Harvey v. Grand Lodge, 50 Mo. App. 472. Members of mutual benefit associations are charged with notice of and will be bound by the provisions of the constitution and bylaws of the association. 1 Cooley’s Briefs on Insurance Law, p. 697. The policy in suit is an old line policy and not assessment. E. S. 1899, sec. 7901; McDonald v. Bankers Life Assn., 154 Mo. 618. The policy in suit is a facsimile policy of the one in above cause. McDonald v. Bankers Life Assn., 154 Mo. 623. The character of the company is not determined by the law under which it was organized or the license but the policy. Alo v. Insurance Co., 164 Mo. 686. The character of the insurance is determined by the contract. Looney v. Supreme Lodge, K. P., 147 Mo. 139. By-laws figure not in this contract for they are in no way made a part of the same nor even referred to nor are the articles of incorporation under the laws of Iowa. See McDonald v. Life Assn., 154 Mo. 628; Elliot y. Insurance Co., 76 Mo. App. 566. By-laws cannot affect or change the contract unless made a part of the same. Goodson y. Masonic Association, 91 Mo. App. 339. This contract is altogether different from one in the case of McCoy y. Bankers Life, 134 Mo. App. 35. Even if the defendant was an assessment company it had no right to forfeit the respondent’s certificate under the circumstances shown in this cause for the reason that the law abhors forfeitures and they can be easily waived by a course of conduct. Hanley v. Life Association, 4 Mo. App. 253; Thompson v. St. Louis Mutual Life, 52 Mo. 469. Statement. — The plaintiff in this case commenced his action in the circuit court of Scotland county, alleging in his petition that the defendant, a corporation organized and existing under the laws of Iowa and engaged in this State in carrying on the business of life insurance, had, on the 6th of December, 1890, in consideration of the sum of $63, in hand paid by plaintiff, then forty-two years old, executed and delivered to him a certificate of membership and policy of insurance on his life whereby it promised for that consideration and for certain sums to be paid thereafter in quarterly payments, to pay the wife of plaintiff a sum of money equal to two per cent of the aggregate amount of the guarantee fund as might appear from the books of the defendant company on the first day of the month' on which the death of plaintiff might occur, not exceeding $2,000, and also the return of the guarantee deposit which was $42; that the policy contained the further provision that on the death of the beneficiary prior to that of the member in case none is named, the benefit should then be paid to the legal representatives of the deceased member. The death of the wife of plaintiff is averred and it is averred that on the issue and delivery of the policy plaintiff paid the company the $63, and continued to pay the quarterly premiums until the first of May, 1907, amounting to the sum of $310, and that on the first of May, 1907, or soon thereafter, the defendant wrongfully and without authority of law repudiated and cancelled the contract and policy of insuranee, and that at the time of the cancellation of the contract the two per cent of the guarantee fund of the company as shown by the books of the defendant was sufficient to pay the sum of $2,000 and the guarantee deposit of $42 upon the policy, and it is averred that plaintiff has fully complied with and performed all the conditions of the policy; that by reason of age and health he has been unable to procure reinsurance upon his life; that the action of the defendant in cancelling was wrongful, unlawful and in violation of the contract of insurance made with him and that by reason thereof he is damaged in the sum of $2,000. In its answer the defendant denies that it is conducting the business of life insurance generally, but avers that it is carrying it on upon the assessment plan only, and that as an assessment association it issued to the plaintiff its certificate of membership at the date stated in the petition; denies that plaintiff at any time paid quarterly premiums; denies that it charged fixed or level premiums, but admits that plaintiff paid all quarterly assessments payable upon his certificate of membership, “except the assessment levied and payable for the month of April, 1907;” denied that it cancelled the membership certificate without authority; admits that two per cent of the guarantee fund of the association is more than sufficient to pay the $2,042; denies that plaintiff fully complied or performed the contract and conditions of membership; denies that he made the payment due April, 1907, and which was levied during that month as provided in the certificates of membership, and denies that its cancellation of the certificate was unlawful. Further answering, it sets up that it is incorporated as an assessment life insurance association under the laws of Iowa; that the laws of Iowa define and fix assessment associations as those which provide “for the payment of policy claims, accumulation of a reserve or emergency fund, the expenses of management and prosecution of the business, by payment of assessments or periodical calls, as provided in the contracts, and wherein the liability of the insured to contribute to the payment of policy claims is not limited to a fixed amount.” The answer then sets out and pleads certain sections of the Code of Iowa, governing companies doing' insurance on the assessment plan, and the articles of association and by-laws of. defendant, the former showing organization and incorporation under the laws quoted avers that the articles and bylaws have been filed with and approved by the proper officers of the State of Missouri, and that it is' licensed by the Insurance Department of the State of Missouri to do insurance business in this State on the assessment plan; avers that it had never charged or collected any fixed or level premiums, but that it has always provided for payment of death losses by levying assessments for each quarter — such assessments being a percentage upon a guaranty deposit made by each member, and the amount assessed to each member has always been levied and ascertained by multiplying the guaranty deposit by the rate of percentage so levied, and all death losses have been provided for by such quarterly assessment and in no other manner, and that the plaintiff has paid, without objection, to the defendant association sixty-two quarterly assessments (varying in amounts from $2.52 to $6.30) and extending over the entire period of his membership up to and including Call No. 95, paid in January, 1907. It is. averred that on the 25th of March, 1907, at a regular meeting of 'the board of directors of the defendant, at which all the members were present, an assessment of ten per . cent was levied upon the membership of the association, based pro rata upon the guaranty fund, for the purpose of providing funds for the payment of death- losses, assessments to be due and payable during the month of April, 1907, to be designated as Call No. 96, and that in pursuance of this assessment, a notice, dated 25th of March, was addressed to plaintiff of this levy. The assessment notice or levy was given in evidence and is as follows: “This Notice Should Be Sent With The Payment. “Be Particular To Give Notice Of Change of Address. “28th Year — Call No. 96. The Bankers Life Association. “42-18554 Des Moines, Iowa, March 25, 1907. “John D. Smoot, “Memphis, Mo. “Sir: — This is to notify you that a levy of ten per cent upon the Guarantee Fund has been made to provide Benefit Fund for death losses, no part of which can be used for expenses. “Your proportion for the benefit fund is........$ 4.20 “The interest accrued upon your Guarantee Note to April 1, 1907, for the reserve fund is.... “And one installment on the principal of your Note for the Guarantee Fund............ “Total ...'..........................$ 4.20 “When more than one certificate is included herein an equal proportion of the above total is payable on each. “This sum must be paid to the treasurer of this association at this office, or to a depository bank, during the month of April, 1907, and if not so paid, the Certificate or Certificates of Membership and all payments thereon will become forfeited and void. “Respectfully, “The Bankers Life Association, “By H. S. Nollen, Secretary.” Appended to the notice is this: “Don’t Pigeon-hole This Notice But Pay At Once And Prevent Lapse of Membership. “1. If paid at a Depository Bank, in April, this notice will be stamped ‘Paid,’ by the Banker, and will then be yonr voucher for the amount. He will at the same time stamp and mail the enclosed postal card to notify us of the credit; “2. Banks are not authorised to receive money on this call after April 30, 1907. See other side. “3. Payments to banks not acting as Depositories by appointment of this Association will not be recognized, and if no authorized depository is convenient .members must remit full amount to the Home Office. “4. Remittances by mail should be by Draft or M'oney Order, payable to the Bankers Life Association but the same shall not constitute payment unless actually received at the Home Office during the month of April, 1907, in compliance with the by-laws and this notice.” On the back of the notice are printed, “Instructions as to Delinquent Payment,” and printed in lárge type is this: “5. If payment is not made on time, but is sent afterward, the health certificate below must be executed and the sum of fifty cents added to the remittance. “6. All moneys received after the expiration of the time allowed for payment will be held subject to reinstatement or return at the option of the Association. “7. This Association reserves the right to require a satisfactory medical examination prior to reinstatement. The examiner to be named by the Association and examination to be paid for by the person applying.” Following these instructions is the health certificate required, as follows: (It was in blank, but when sent on by plaintiff was filled up and we give it as it was filled up and sent to defendant by plaintiff.), “Health Certificate. “I, John D. Smoot of Memphis, State of Missouri, having lapsed my membership in The Bankers Life Association of Des Moines, Iowa, and desiring to be reinstated therein, do declare, guarantee and warrant that I am by occupation a lawyer, that I am of sound constitution, good health and temperate habits; that since the date of my application I have sustained no personal injury, and have been afflicted with no disease or sickness, and have been attended by no physician, except as written herein. (Give nature and date) .......... ................I have fully recovered from such disability and I have not made an application for insurance to any other company, association or society upon which a policy or certificate has not been issued. “It is agreed that the above statements are warranties and are the consideration for any reinstatement made hereon which reinstatement shall be void if the above warranties be untrue in any respect. “Dated this sixth day of May, 1907. “(Sign here.) John D. Smoot. “Age, 42. Certificate 18554. “Attest I. L. Baker.” It is averred that this notice, with these instructions and blank forms were mailed to plaintiff, duly addressed and deposited in the postoffice, postage prepaid, and that the sum of $4.20 was the correct assessment upon the guarantee deposit of plaintiff, as provided by the resolution, and was payable by plaintiff during the month of April, 1907, provided plaintiff desired to remain thereafter a member of the defendant association. It is further averred that neither the plaintiff, nor any one for him, paid the amount of the assessment, Gall No. 96, during the said month of April, 1907. It is averred, “That the certificate filed in this suit provides among other things, as follows: ‘Upon the failure of the above named member to make any payment due from him to the association at its maturity in January, April, July or October, of each year, his guaranty deposit shall be forfeited and his membership shall thereupon cease;’ ” and that the membership of said plaintiff, by reason of the failure to pay said assessment, Call No. 96, terminated at the end of the month of April, 1907, and that all interest of plaintiff, or his beneficiaries, in such membership, thereupon ceased and determined. It is finally averred that plaintiff had lapsed his membership and was reinstated in the defendant association on August 9, 1907. No reply seems to have been filed. The case was tried by the court without a jury, a jury having been waived. Plaintiff introduced and read in evidence the certificate of membership, as follows: “Certificate of Membership. “This is to certify, that in consideration of the statements contained in his application, No. 16793, which is made a part of this contract, and the sum of sixty-three dollars, John D. Smoot, of Memphis, Mo., by occupation lawyer, aged forty-two years, has this, day been admitted to membership in this association, and that in the event of his death, during membership, his beneficiary shall be entitled to a sum of money equal to two per cent of the aggregate amount of the guarantee fund, as may appear by the books of the association on the first day of the month in which the death of such member may occur; provided, that the beneficiary of a deceased member shall not receive over two thousand dollars for this certificate of membership, and the return of the guarantee deposit given by him to the association amounting to forty-two dollars. “Upon the failure of the above-named member to make any payment due from him to the association at its maturity in January, April, July or October, of each year, his guarantee deposit shall be forfeited, and his membership shall thereupon cease. “This certificate to become null and void, if death occur from self-destruction within two years from this date, the member being sane or insane, or if the member is or shall become habitually intemperate in the use of intoxicating liquors, chloral, cocaine or opium. “The amount due under this contract to be paid to Anna D. Smoot, wife, at the Home Office of the Association upon satisfactory proof of claim, to be supplied by the beneficiary, in the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit then to be payable to the legal ■representatives of deceased member. “Witness the signature of the President, countersigned by the Secretary, and the Seal of the Association hereto affixed the date above written. “Edw. A. Temple, President. “A. C. Stilson, Secretary. “(Seal.) “Medical examination made by R. Wagner, M. D. “Application taken by J. W. Evans.” On the back of this certificate the following appears : “Benefits due from this Association are in the main provided for by assessments on certificate holders, and are secured by a fund deposited with the Auditor of the State of Iowa under authority of law.” Plaintiff did not read this indorsement in evidence, but over the objection of plaintiff that it was “incompetent, irrelevant and immaterial,” defendant read it in evidence, the court saying, “I will reserve my ruling until later. Let it be admitted.” The application referred to in the certificate as the basis and part of the consideration for the issue of the certificate was not offered or produced in evidence. Plaintiff as a witness in his own behalf testified, when asked when he had made a tender of payment of the March assessment, due to be paid in the month of April, 1907, testified that he had been away from home and came back on the second of May; supposed his insurance had been attended to; supposed it had been paid; had made arrangements with a bank to pay it, to pay the premium, but found it had not been done, so he sent a check for $4.20, or more correctly, a draft for that amount drawn on New York or St. Louis, to the defendant, which defendant immediately returned; had received a letter from defendant which he cannot find, but the letter was to the effect that he should sign the health certificate and send fifty cents more. The letter which he sent was afterwards produced and read in evidence by the defendant, dated Memphis, Missouri, May 2d, addressed to Mr. Nollen, the secretary of the defendant and is as follows: “Being absent at the time my assessment number 96 on the policy No. 18554 fell due, I thought I had arrangements' with the bank to pay it but it seems like I had not. Please find enclosed draft for $4.20 amount of the call, which I hope may be satisfactory.” In reply to this- he received a letter dated May 3d, addressed to him, a copy of which was afterwards produced by the defendant and offered in evidence, the plaintiff having testified that the original had been lost and the copy being duly verified. This letter is as follows: “Your remittance for half of call 96 is herewith returned with health certificate to be signed, and fifty cents to be added for reinstatement, if granted. Will write you later upon the matter, as we wish to make some investigation relative to your habits as to the use of liquor.” Plaintiff testified that on receipt of this he sent back the draft for $4.20, together with fifty cents in postage stamps and the health certificate. This he did by letter of May 5th. The health certificate is in the form as heretofore copied, the blanks filled up in it as there shown. Plaintiff testified that in answer to his letter sending the certificate and draft and postage stamps, he received a letter from defendant, which he produced and read in evidence. It is on the letterhead of the defendant, dated at Des Moines, Iowa, June 6th, addressed to plaintiff and is as follows: “Dear Sir: Your letter of the 5th inst. has been received, with draft and postage stamps which we herewith return, your' reinstatement having been declined. “You seem to overlook the fact that you have had insurance for the full value of your payments, excepting the guarantee fund, which we have offered to return included in the $100, which we proposed to pay you instead of paying attorney’s fees. “As you seem -to contemplate an amicable settlement, we are ready to confer on that feature in the interest of both parties. “Respectfully, “The Bankers Life Association, “By Templé.” Plaintiff appears to have written another letter on the 6th of June, the same date that the defendant had written to him and he produced and read in evidence a letter of 'date May 8th, addressed to him which is as follows: „ “Dear Sir: We have your letter of May 6th, enclosing draft for $4.20 with postage stamps to the amount of 50c forwarded with view to reinstatement of your lapsed certificate No. 18554, as we wrote you on May 3d, we wish to make some investigation relative to your habits. We do not care to hold your remittance pending such investigation and return the draft and stamps herein. Yours truly, “The Bankers Life Association. “By Green.” In this letter he received back the draft for $4.20 and the fifty cents in postage stamps. Plaintiff acknowledged having received the April call, for which he had made this remittance in May, and admitted that the copy produced by defendant and introduced in evidence (hereinbefore copied) was a correct copy of the original which he had received. He testified that he had made efforts to be insured since May, 1907, and for the last two years; knows that he is not an insurable subject and has been turned down in the last two years on account of his health and is not an insurable risk on account of his health, age and habits; for these reasons he had been refused by other companies. Asked why he had signed the health certificate showing that he was in good health, he said he did that because that was the form of certificate presented to him; that he was not a man broken down in health, has a good constitution and reasonable health, is not a physical wreck or anything of the kind, and, outside of his age, is not in bad condition; wanted to keep the insurance for his children and that if there was going to be a lawsuit about it, he would rather have it now than after his death; admitted that the defendant had offered to reinstate him since he brought the suit, but that he had refused because he had brought the suit and preferred to have it determined and does not now want to be reinstated; if he is to have any litigation he said, he would rather have it while he was living; “have been paying money into this thing for. seventeen years and think I have some rights,” testified plaintiff. An agent for a regular life insurance company, produced and testifying as a witness on behalf of plaintiff, testified over the objection of the defendant, that at the age of the plaintiff a $2,000 life insurance in a regular company would cost $147 a year; that the expectancy of the plaintiff was fourteen and three-fourths years. Doesn’t think that plaintiff could get an insurance policy in a good, solvent company; had tried to get him into his own company a year and a half or two years ago, but the company declined to take him, except on a policy with a heavy lien against it, the company claiming that plaintiff was an impaired risk. His company had offered to take plaintiff for $1,500 or $2,000, at an annual premium of $300 or $350, policy payable at death. On cross-examination the witness stated that the policy that he was negotiating with plaintiff for, was ordinary life. In his own experience he did not know of a policy being issued by a regular company to a man of sixty years or upwards; stated that he could not figure on the value of reserve in an assessment company; that in an old line company there is so much guaranteed on their policy; that an actuary could figure it out on an old line form; that he was not an actuary. Mr. Hudson, another witness called on behalf of the plaintiff, testified that he had collected for the defendant; that it was the custom of the company when a person was in default, on sending a health certificate and paying fifty cents additional, to reinstate them; had known of some being reinstated when they were in default for a week and some that had run over as long as three weeks. This was all objected to by defendant and exception duly saved. On cross-examination witness stated that the instructions were, that the collections were all due on the assessment on the last day of the month, and that, as depositories for the company, they did not collect, or attempt to collect, after the expiration of the month; if it was not paid before the end of the month, he was not allowed to receive it; when members were reinstated there was an affidavit to a health certificate for reinstatement and the party paid fifty cents. The health certificate was sent to the company for its action. On redirect examination he testified that he knew persons who bad been reinstated by tbe defendant on sending on tbe bealtb certificate and tbe fifty cents. Mr. Webber testified that be was cashier of the Gorin Savings Bank which bad acted as collector for the defendant at Gorin for tbe past fourteen or fifteen years. Shown tbe bealtb certificate required, recognized it as tbe form in use; was a member of tbe association himself and bad lapsed in tbe payment at one time, about a week; was reinstated upon sending on á health certificate and fifty cents; that bad been tbe custom of tbe company in that locality. This was objected to, objection overruled and exception saved. Stated that tbe basis of reinstatement in all tbe cases be knew of was tbe bealtb certificate; that is to say, if tbe person showed be was of temperate habits, in good bealtb, etc., be might be reinstated; did not know of any one being reinstated unless these conditions were complied with. This was all tbe testimony introduced by plaintiff in chief. Tbe defendant here asked a declaration of law, that under tbe pleadings and evidence, tbe finding of tbe court must be for tbe defendant, which was overruled and defendant excepted. Tbe defendant then offered in evidence tbe letters above referred to and also tbe bealtb certificate which tbe plaintiff bad filled out and signed, of date August 6, 1897, and on which he bad been reinstated at that time. This bealtb certificate on which this reinstatement was made was in tbe form hereinbefore given. It was offered by tbe defendant for tbe stated purpose of showing that under tbe law, tbe certificate of membership of tbe plaintiff dates from tbe date of this bealtb certificate and reinstatement thereunder, of August 6, 1897, and that if plaintiff was entitled to anything, it would have to date from that period. It was objected to by plaintiff and tbe objection overruled. Plaintiff then offered and read in evidence tbe endorsement on tbe back of plaintiff’s certificate of membership which has been heretofore set out. • It then offered and read in evidence sections 1784, 1785, 1788, 1789, of the Code of Iowa as plead in the answer. No objection was made to them as evidence dr as being properly authenticated, the objection being made that they were “incompetent, irrelevant and immaterial.” Mr. Nollen, introduced as a witness for the defendant, testified that he is its secretary, has been connected with it since 1893. In addition to his duties as secretary has also acted as actuary. Produces the by-laws and articles of incorporation of the defendant and identifies them as the ones under which the company is and has been operating. The' articles of incorporation were then introduced and read in evidence, the original being dated as filed and recorded in the office of the Secretary of State of Iowa, June 24, 1878, amendments made to them on the 9th of November, 1886, and approved by the Attorney-General of Iowa of the date, and amendments of article 11 of date November 18, 1893, approved by the Auditor of the State and the Attorney-General of State on that date.. These articles and amendments appear as regular under the Iowa laws before referred to. The by-laws of the defendant were offered and admitted, particular attention being called to the sections which were relied on, these being read in evidence. Objection was made to the reception of these in evidence, on the ground that they have no reference to the policy, that is, no power to pass such by-laws and they are irrelevant and incompetent and constitute no defense. The court said as to the objection, “I will reserve my ruling until the argument.” Plaintiff then produced and offered in evidence the authorization • of the Auditor of the State of Iowa, as required by the law of that State, granting authority to defendant to continue in business as an assessment association for the ensuing year. This certificate was objected to ás irrelevant, etc., the court saying as before that he would reserve his ruling on the point until later, and it was admitted subject to this- reservation. The certificate sets out, after details of the resources of the association, that the association has fully complied with the provisions of chapters 7 and 8, title 9, of the Code of Iowa, relating to assessment insurance companies, and is authorized to transact business in that State in accordance therewith the ensuing year. The certificate of authority to do business from the insurance department of Missouri was produced and offered in evidence. It was objected to by the plaintiff because the evidence already introduced shows that the defendant could not be an assessment company under the laws of the State of Missouri, and there is nothing to show that the defendant had authority to do business in Missouri at the time the policy was issued on which the suit had been instituted; that they only produce a certificate for one year, authority for doing business in the year 1907, and that it is incompetent, irrelevant and immaterial, to which objection the court said: “I will reserve my ruling on this matter for the present. It can be admitted, and I will pass on it later.” The certificate was then read in evidence, authorizing the defendant “to do business of life insurance on the assessment plan” in the State of Missouri until the first of February, 1908, and was signed by the superintendent of this State. This witness was asked to state how the business of the association is actually carried on with reference to the procuring of money necessary for the payment of benefits, to which the plaintiff objected because incompetent, irrelevant and immaterial. The court announced he would reserve his ruling and permit the witness to answer, whereupon the witness answered: “The board, of directors determine every three months the amount which may be required to pay current claims.” Asked by plaintiff’s counsel if the board kept a record of the meetings, and answering in the affirmative, objection was made and the objection sustained, but the witness apparently by permission of the court, proceeded to answer that they ascertained the amount necessary to be levied in order to meet the payment of these claims and then made an assessment. Asked by plaintiff if they kept a record of these proceedings, he answered that they did, whereupon counsel for plaintiff interposed the objection that the record was the best evidence, to which the court said: “I will overrule the objection at this time,” and plaintiff’s counsel excepted. The answer of witness, as above was permitted to stand. Witness further testified that the total amount required for all losses having been determined, then each member pays his percentage, figured on his guarantee. Asked to state what, if anything, the company does with reference to charging any fixed or level premium, and objection being made by plaintiff, because of its incompetency, irrelevancy and immateriality and because it calls for a conclusion of the witness on a question to be determined under the law on the face of the policy, the court saying he would reserve his ruling, permitted the witness to answer and the witness answered that the association has never charged any level premiums, only charges enough to pay the expenses of the insurance. Asked if he had knowledge of the assessment made in March, 1907, he said that he had; that he was present as secretary and member of the board when it was made and that he had personally reduced the resolution to writing and produced a copy of it, duly attested, which was read in evidence. The resolution is numbered 3887, passed at a meeting of the board' of the defendant, held at Des Moines, Iowa, the 26th of March, 1907, recorded in the proceedings of the board and is to the effect, “That an assessment of ten per cent be, and the same is hereby levied upon the membership of this association, based pro rata upon the. guarantee fund for the purpose of providing funds for the payment of death losses, said assessment to be due and payable during the month of April, 1907, and to be designated as Call No. 96.” Witness further testified that, as secretary of the association, he has the custody of the records showing the assessments and payments made by the plaintiff in this case; produces the paper containing a transcript of the entries under the certificate issued to the plaintiff from date of membership down to assessment No. 96, levied in March and payable in April, 1907. This was the assessment which was not paid. These assessments run in amount from ninety-six cents, the lowest, to $6.30, the highest. Ashed to state as an actuary, whether, upon the basis of payments made by plaintiff, any reserve would be created under the policy of plaintiff on the assessments to which he has testified, he answered that there would not be a reserve value; that there would not be any net value to the certificate of membership on May 1, 1907. Ashed if he had computed the present worth of $2,042, tahing into consideration plaintiff’s life expectancy of fourteen and three-fourths years, would be worth if paid today, said it would be $864.84; that that was the present worth of $2,042, payable at the expiration of plaintiff’s expectancy of fourteen and three-fourths years on a six per cent basis; testified that there was no way of comj puting, with any degree of certainty, what the amount of assessments would be under the contract, for the period of expectancy, because the premiums or assessments would vary according to the actual need of ,the company, and that these payments would have to be calculated at present worth and that amount deducted from the present worth of $2,042, to get at the value of the policy, if payable now; that under an old line plan, the cost of insurance for $2,042 being $72.12 per annum, the present value of premiums of $72.12 per annum for the expectancy of plaintiff at six per cent would be $702.64. That is to say, the difference between the present worth of the $2,042 and the present worth of premiums to be paid during the fourteen and three-fourths years would be $162.20. If the contract was figured on the basis of old line insurance, tbe present worth would be $453.53, provided a level premium was collected on the policy. On cross-examination, asked what was the present value of the policy in suit, he answered that it would have no present net value and no net value could be figured on it. Asked on cross-examination as. to what reserve the defendant company had, answered that on January 1, 1908, it had $4,745,395.00. Shown a card which gave eight million dollars as assets of the company, witness stated that that represented money that had been paid in by members for guarantee deposits, and interest which has accrued on these and other investments; that they hold municipal bonds, real estate and guaranteed notes, and these bear interest or produce revenue. Asked what dividends the company made annually, stated that they paid no dividends whatever, and did not pay their directors any salary. On redirect examination asked as to what was meant by the reserve fund, he said that in the case of the defendant, it is a fund accumulated under the provisions of the articles of the association; is not, a net reserve as known in law, or in the sense that is produced by level premiums, as in the case of old line companies, because defendant has no level premiums. The entire assets of the defendant on January 1, 1908, •were worth $11,736,715.76. The full amount of insurance in force at that time was $330,238,000.00, and if this entire fund was divided up between the several members in proportion to the amount of their insurance, the plaintiff, under his policy, would be entitled to $72.15. Mr. Earle, a director and general counsel of the defendant, examined as a witness, produced and identified the letters and exhibits heretofore referred to which were all introduced in evidence, and Mr. Nollen, being recalled, stated that he was familiar with the practice of the company in sending out notices of assessments, and that they are mailed within ten days prior to the first day of the month on which payments are due, that is, ten days prior to the first day of the month on which they fall due. The plaintiff, in rebuttal, testified that the policy in suit was contracted for by him at Memphis, Scotland county, this State, defendant then haying an agent there. This was substantially all the testimony in the case. At the close of it the defendant asked the court to declare, as a matter of law, that under the pleadings and evidence, the finding should be for the defendant. This was refused and defendant duly saved exceptions. The court, at the conclusion of the trial and having taken the case under advisement, found the issues for the plaintiff, “and that the defendant is indebted to the plaintiff on account of the life insurance policy filed in the case,” and that plaintiff recover of and from defendant the sum of $1,620 found due by the court, together with costs. No rulings were made, in terms, by the court, on the objections to the admission of evidence. Within due time defendant filed a motion for a new trial which,was overruled and exception saved, and an appeal being prayed for in due form, it was granted to this court.