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White, by the officer charged with that duty, four dollars and ten cents, being an assessment upon White for all of August, and for that portion of July following the 21st. On September 19th the superintendent of the department wrote to the superintendent of motive power as follows:

“CHICAGO, ILL., September 19, 1890. “Mr. D. Hawksworth, Supt. Motive Power, Plattsmouth, Neb.,

"DEAR SIR: L. T. White, engineman, Plattsmouth, made preliminary application on form 3 July 21 for membership in the fourth class, to take effect July 21, and was taken sick on July 22, as per form 8, No. 15,753, issued by J. E. Barwick, before medical examination could be made. Mr. White is not a member of the fund, and the contribution of four dollars and ten cents deducted on the July roll should be refunded him at once by time check. Will you please see ihat this is done, also that the form 8 is canceled.

“ Yours truly,

“J. C. BARTLETT, Supt." On the 20th an employee was sent to White's house, where he made a tender of what is designated a "time check." This was on a printed blank, in form a certificate signed by the master mechanic of an amount due for labor for a speci. fied time; but taking this document as it was written it reads as follows: “ BURLINGTON & MISSOURI RIVER RAILROAD COMPANY IN

"(C., B. & Q. R. R. Co., OWNER.)

“PLATTSMOUTH, NEB., Sept. 20, 1890. "L. T. White has worked for this Company Relief Dept. C. R. in month of September. 664 "Amount due, four dollars & 1% ($4.10). “D, HAWKSWORTH, Master Mechanic.

“S. W, Dutton." This was refused by White and his wife. A few hours afterward White died. No application according to the forin prescribed had ever been made by White, and it may be assumed that there had been no physical examination. The defendant in error is White's widow, and she brought this action to recover the amount of the death benefit.

A portion of the argument is addressed to the rulings of the court on the admission of evidence. It has been so frequently decided that such rulings will not be reviewed in the

absence of specific assignments in the petition in error calling attention to the particular rulings complained of, that it is unnecessary to cite those decisions. There is no assignment in the petition in error herein of the character required to present any of these questions for review. This leaves the case to be determined practically upon a consideration of the instructions given and refused. The court charged the jury quite at length, and refused nine of the instructions asked by the defendant below. One so requested was given with modification, but the transcript is in such shape that it is impossible to determine in what the modification consisted, and it is only by the exceptions noted on the margin that we ascertain that there was any modification. Fortunately for the ends of conciseness the case is presented in such a manner that it becomes unnecessary to review the instructions in detail. The burden of the instructions excepted to was to the effect that if the jury should find that a verbal application for insurance was made, that the deceased was not called upon to make a written application; that he was not called upon to submit to a physical examination; that he had not agreed as a condition to his insurance to submit to such examination; that the relief department had taken from his pay the assessments due from a member, and had retained the same,

665 then that these facts would estop the department from denying his membership, and would constitute a waiver of the written application and physical ex. amination. The jury was furthermore instructed that the tender of the time check was not a sufficient tender of a roturn of the assessment withheld. The effect of the instructions requested and refused was that by the by-laws of the department the assessments were to be made in advance; that the application for membership must be made according to the form prescribed; that a physical examination must take place and thereafter the application must be approved by the department before the applicant should become a member; that the applicant was bound by all the conditions of the constitution and by-laws. Under the evidence in the case the instructions asked by the defendant amounted practi. cally to an instruction to find for the defendant, and the instructions given practically amounted to an instruction to find for the plaintiff. We may, therefore, consider the questions presented generally, without reference to the specifio instructions.


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We think that upon every principle of equity the court took the correct view of the law. The notice of application was transmitted by the soliciting agent to the superintendent of the relief department, notifying that oflicer of White's desire to become a member. It was also sent to White's im. mediate superior as an employee of the railroad company, for what purpose is not so clear, but from the testimony evidently, in part at least, for the purpose of enabling clerks in that department to keep their records upon the basis of White's membership in the department. A third copy was sent to the paymaster, evidently for use in connection with the collection or rather withholding of assessments. The department certainly had notice of his application. His name was entered upon a membership roll of the department, with a statement that his application took effect July 21, 1890. Upon the subject of assessments 556 the rules are as follows: “Contributions will be due on the first day of the month, and will, ordinarily, be deducted from the members' wages from the payroll of the preceding month.” “The contribution for a month, or any unexpired part of a month, in which an application takes effect shall be made on the payroll for that month, together with the contribution for the following month." “A member shall not make contribution for any time during which he is entitled to benefits, except for the month in which the disability begins.” The deduction was made in accordance with these rules from White's pay, contribution for the fraction of July and the whole of August being taken from the July payroll. The only right which the company could claim for withholding these assessments from the members' pay, and the only right which the department could claim for receiving them, is derived from a clause of the application, which is a part of the by-laws, whereby the company is authorized to withhold Buch moneys. The application also is required to specify the date when it is to take effect. Another provision of the by-laws is that if the application is approved it shall take effect on the date specified therein. We have here, then, this association, acting through the same officers as the rail. road company, or, in other words, the railroad employees acting under authoritv of the association, receiving notice White's application is verabership, and that it was to take effect on July 21st. We have them deducting from his pay Assessments from July 21st, their sole right to do so being bv virtue of White's being a member of the department. Wo have them holding this money until the day before his (leath, when an effort is made to disclaim his membership and refund his contribution by the tender of a paper which was neither money nor a promise to pay money. In a case unencumbered by the technicalities of the law of insurance there could be little doubt that a party so conducting itself , would be estopped from denying liability. 557 While the authorities are very numerous in regard to contracts of mutual insurance and in regard to benefit associations, but little light is derived from them in the solution of the questions here presented. The cases are nearly all inapplicable, because of the peculiar constitution of this association. Most of the mutual benefit associations perform social functions or are such organizations that the insurance is only an incident of the membership. There, the question as to whether one is or is not a member must be solved with a view to other objects of the association. In the case of mutual insurance companies every payment is voluntarily made by the member and may be with the express or implied understanding that its payment is merely conditional. Here, while the assessments are termed voluntary contributions, they are only voluntary in the sense that an employee of the railroad may enter the association or not as he sees fit. If he elect to enter, he must in so doing give to his employer and the association the power to seize the assessments without any further exercise of his own volition. White did not volun. tarily make a payment in connection with his application, knowing that the money might be held for some time and then his application refused; but the department seized his money, and its act in doing so was wrongful, unless by becoming a member he had given the department the right to take it. By its own acts it subjected him to the obligations of membership, and it cannot deny him its privileges.

It is urged in argument that White's application had simply been delayed by reason of his sickness, and inaction for that reason would not estop the department. If there had been merely inaction the case would not be difficult, but there was very decided action on the part of the departe ment. It seized White's money, which it had no right to do unless he was a member, and retained it until a loss occurred and for some six weeks after notice of his sickness. If I give to another authority to take my property 558 in conbideration of certain agreements by him to be performed, and he goes and seizes my property and retains it, it is not difficult to determine that he should not be permitted to disclaim liability upon his agreement. He cannot receive the fruits of his contract and reject its burdens. We know of no prin• ciple of law exempting a mutual insurance company from the operations of such an estoppel. If there were authority to that effect we would not recognize it. The doctrine of estoppel is based upon the requirements of morals and conscience, obligations which even mutual insurance companies should recognize. But it is said that White did not alter his condition in reliance upon the acts of the department, and that therefore the principle of equitable estoppel does not apply. We presume that counsel do not think that his parting with a portion of his pay was an alteration of his position. Generally, the payment of money is sufficient as an act of reliance to render an ostoppel operative, and we do not think that the amount of money paid affects the case. Next it is said that neither the soliciting agent nor different clerks who took part in the transactions had authority to waive compliance with the by-laws of the association. We need not inquire into the special authority of subordinate employees. The evidence shows that every material fact was speedily communicated to the superintendent who was charged with the general management of the business, and had authority to approve or reject applications. This is true except as to the entry of White's name upon the roll of members; but this we consider, in the light of the evidence, an immaterial fact, except as such entry may have led to the with holding of White's pay. The superintendent's power was general; his knowledge was that of the department; bis acts were those of the department. We think, so far, there was a complete case of estoppel made out, and the court's instructions were fully warranted.

Much stress is placed upon rule 49 of the department, 069 whereby it is provided that an employee who has passed a satisfactory medical examination and has made a proper application for membership shall, notwithstanding the delay in examining his application, be entitled to the benefits and subject to the obligation of membership; but shall in the mean time be entitled only to benefits on account of injury or death caused by accident. The objection to applying this rule is that White was not within its provisions. This was

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