(185 P.) (108 Wash. 689) (No. 15573.) tiff on the evidence is entitled to a judgment for $900, and no other sum." This motion was granted, and judgment rendered accordingly. From this disposition (Supreme Court of Washington. Dec. 5, 1919.) of the cause the plaintiff has appealed to this The benefit certificate sued upon certifies that: 1. INSURANCE 718-BINDING EFFECT OF Court. 2. INSURANCE 719(5)—MUTUAL BENEFIT TRACT OF INSURANCE. The laws of a mutual benefit association, providing that if a member should engage in a hazardous occupation without paying an extra rate his beneficiary at his death was to receive only $300 for each $1,000 of insurance, when lawfully adopted, become part of the contract of insurance of each member, notwithstanding such regulations were made subsequent to the inception of the contract. 3. INSURANCE 791(1)-CHANGE IN AMOUNT OF MUTUAL BENEFIT INSURANCE BY CHANGE OF OCCUPATION. "Sir Knight Collins H. Miller has been regularly admitted as a member at Billings, state of Montana, and that in accordance with, and under the provisions of the laws of the Supreme Tent of the Knights of the Maccabees of the World, he is entitled to all the rights, benefits, and privileges of membership therein, and that at his death one assessment on the membership, not exceeding in amount the sum of three thousand dollars will be paid as a benefit to Lorena Miller bearing relationship to him of wife." The certificate was issued on March 14, 1902. In the written application of Miller for membership in the association he stated his occupation to be railroad brakeman. Befor issuing the certificate, the head officers Where the by-laws of a mutual benefit asso- of the association, desiring to know whether ciation, as amended, provided that if a member Miller was a passenger or freight brakeman, should engage in a hazardous occupation without made inquiry of the local tent at Billings, paying an extra premium his insurance should be decreased to $300 for each $1,000 insurance, Mont., and received a card in reply thereto and insured was accidentally killed while acting through the mail, purporting to be signed as a switchman, a hazardous occupation, in by Miller, stating, over his supposed signawhich he became engaged after the inception of ture, his occupation to be a passenger brakehis contract and without paying the extra pre- | man. This information was sought by the mium, his beneficiary could claim insurance head officers manifestly because the occupaonly to the extent of $300 for each $1,000 car- tion of freight brakeman was classed by the ried; the amount of insurance being automat-laws of the association as hazardous, and ically changed by insured's own acts. Department 1. called for the payment of 50 cents per month additional dues on each thousand dollars of the life benefit stated in the certificate of Appeal from Superior Court, Pierce Coun- membership. There is some dispute as to ty; M. L. Clifford, Judge. Action by Lorena Miller against the Supreme Tent of the Knights of the Maccabees of the World, a Fraternal Benefit Association. A judgment for less than the amount sued for was directed on motion, and plaintiff appeals. Affirmed. J. W. Anderson and H. W. Lueders, both of Tacoma, for appellant Ballinger & Hutson, of Seattle, for respond ent. PARKER, J. The plaintiff, Lorena Miller, seeks recovery upon a benefit certificate is sued to her husband, Collins H. Miller, deceased, by the defendant, the Supreme Tent of the Knights of Maccabees, a fraternal benefit association. The cause proceeded to trial in the superior court for Pierce county, sitting with a jury, when, at the close of the introduction of evidence upon both sides, counsel for the defendant moved the courtto withdraw the case from the jury and determine as a matter of law that the plain whether or not the name signed to this statement, purporting to have been made by Miller, is in fact his signature. We think, however, that will appear, as we proceed, to be of no moment in our present inquiry. The head officers of the association then proceeded on the assumption that Miller was a passenger brakeman, and that he was properly paying dues, according to the rates pre scribed for such risk, until the change in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a is herein specified to be paid for the particular class of occupation in which the member was so engaged at the time of his death. "Class 2. Switchmen, the benefit to be paid in case of accidental death being $300, on the basis of a $1,000 certificate." Miller never notified the officers of the as At the time Miller became a member of the [ his beneficiary shall receive only such sum as association, he was employed by the Northern Pacific Railway Company as a brakeman upon a train running regularly over a branch line, from Billings to Red Lodge, in Montana, which train was a mixed freight and passenger train. For two years immediately preceding his death, Miller was employed by the company as a yard brakeman, commonly sociation that he had changed his employknown as a switchman. About 10 o'clock at ment to switchman from that of passenger night on April 17, 1917, Miller was found in brakeman, and never offered to pay the addia dying condition in the railway company's tional rate of 50 cents per month per thouyard at Auburn, where he was employed, ly-sand on the maximum benefit specified in his ing on a switch track near the end of a box certificate of membership. car, which he had a few moments before been seen riding on the top of, evidently with a view to stopping it on the switch track in the making up of a train, it having been detached from the switch engine, and proceeded by its own momentum to the point where it stop ped, near where Miller was found. His skull was fractured. He died a few hours later. For the present we proceed upon the assump-switchman from that of passenger brakeman, tion that the evidence touching the cause of Miller's death showed conclusively that his death was the result of a violent accidental cause, and that the court was warranted in so concluding, instead of submitting that question to the jury. At the time Miller became a member of the association its laws prescribed, among other things, as follows: "Hazardous Occupations. "Sec. 416. The occupations named in this section shall be deemed hazardous, viz.: "Engineers and firemen employed on all railroads; conductors, brakemen and flagmen in yards or employed on railroad freight trains; switchmen, yardmen. [1] It would seem that had the laws of the association remained unchanged from the time Miller became a member to the time of his death there could be no recovery upon this certificate in any amount, since there would then have been a complete forfeiture, because of his failure to report the change in his employment to the hazardous one of which he claimed, and the association assumed, was his employment when he became a member. This, however, is not our present problem. The association is not claiming forfeiture of the life benefit which Mrs. Miller is entitled to, under the certificate, but only claiming that, because of Miller's failure to report the change of his employment and pay the extra rate prescribed by the laws of the association, he thereby voluntarily worked a change in the amount of his life benefit from $3,000 to $900, under the laws of the association as amended in 1911. If we are correct in assuming that Miller's death was the result of a personal injury accident, rather than of sickness of some nature apart from personal injury, it seems plain that the trial court, in taking the case from the jury and rendering judgment in favor of Mrs. Miller, awarding and limiting her recovery to $900, must be affirmed. It is elementary beneficiary association law that the laws of such an association are binding upon all its members, and all are conclusively presumed to know them. Bacon, Benefit Societies (3d Ed.) § 81; Nillack, Benefit Societies (2d Ed.) § 18, 136; 19 R. C. L. p. 1198; Benes v. Supreme Lodge, K. & L. of H., 231 Ill. 134, 83 N. E. 127, 14 L. R. A. (N. S.) 540, 121 Am. St. Rep. 304, and note. [2] It is conceded that the laws of the association above quoted were lawfully adoptconstitute as much a part of Miller's coned by the association, and it is plain they tract of insurance as does the certificate itself. There was no evidence introduced upon the trial tending in the least to show facts which would work an estoppel against the association and in favor of Miller, in so far as the binding force and effect of the abovequoted laws of the association as amended in 1911 is concerned. The only claim is that Miller was never furnished a copy of the as .one. (185 P.) sociation's laws, and was, in fact, ignorant could have, by the payment of $3 monthly thereof; but it is not claimed that he could dues, had the full benefit of a $2,000 benefit not have had a copy of the association's pub- certificate, even while employed as a switchlished pamphlet containing the laws, includ- man; but he never sought to obtain any ing those above quoted, by merely asking for such a contract from the association, so his contract automatically became, under the last above-quoted provision of the laws of the association as amended in 1911, a life benefit certificate for $900, in the event of his death being the result of an "accidental cause." We are, however, quite convinced that the evidence was such as to compel the finding that Miller met his death as a result of the personal injury accident occurring to him a few hours before his death, and that therefore the trial court correctly so decided as a matter of law. [3] The amendment of the association's laws of 1911, above quoted, seems to us so plain as to not admit of argument as to its meaning; that is, that, Miller never having paid to the association the extra 50 cents per month per thousand in order to keep his benefit certificate in full force to the maximum of $3,000, after his employment became that of a switchman, he thereby in effect changed the amount of his life benefit from $3,000 to $900. The Supreme Courts of Minnesota and Nebraska have considered this problem presented in almost the exact manner that it is here presented, both courts reaching the same conclusion that we here reach. Abell v. Modern Woodmen of America, 96 Minn. 494, 105 N. W. 65, 906; Modern Woodmen of America v. Talbot, 76 Neb. 621, 107 N. W. 790. Some contention is made in appellant's brief that it was erroneous to decide, as the trial court did, that Miller's death was, the result of a personal injury accident, instead of submitting that question to the jury. We presume the thought of counsel in this connection is that the jury would have been warranted in finding, under the evidence, that Miller's death was the result of some sickness, apart from his injury suffered but a few hours before his death, and that such finding would call for the awarding Mrs. Miller recovery in the sum of $3,000. We are somewhat at a loss to understand just how counsel for appellant would have us dispose of the case should we conclude that this contention of theirs is well grounded, for we find in the concluding language of the brief the following: "We contend that the court committed prejudicial error * in withdrawing the case from the consideration of the jury and directing judgment to be entered for $900 instead of allowing her the amount which the premium paid would purchase for the hazard actually incurred. We respectfully submit that on the record in this case the judgment of the lower court must be reversed, and a judgment rendered in favor of appellant in the sum of $2,000." Nowhere in appellant's brief are we asked to award her a new trial, but are thus asked to render a final decision in her favor, awarding her $2,000 as a matter of law. The theory of counsel manifestly is that the amount of dues paid by Miller, to wit, $3 per month, would have purchased a $2,000 life benefit, even though he be employed as a switchman, and that we should now decide, as a matter of law, that Mrs. Miller be awarded recovery in that sum. It may be conceded that Miller Our conclusions reached upon the questions above noticed render it unnecessary to discuss the other questions presented in the briefs of counsel for the appellant, for, however we might view them, the judgment of the trial court would have to be affirmed. The judgment is affirmed. HOLCOMB, C. J., and MAIN, MITCHELL, and MACKINTOSH, JJ., concur. (108 Wash. 515) ABERCROMBIE v. CULLEN et al. (No. 15203.) (Supreme Court of Washington. Oct. 28, 1919.) TION FOR REFUND OF PAYMENT FOR MINING In an action on a contract whereby plaintiff purchased certain mining stock upon defendant's agreement to repay plaintiff part of the purchase price, which defendants had failed to do, it was no defense that plaintiff, after his purchase, had received from a third party, upon forfeiture of an option to purchase the stock, a sum greater than the purchase price of the stock. 2. CORPORATIONS 121(5)-SUFFICIENCY OF EVIDENCE TO SUSTAIN COUNTERCLAIM IN AC- In an action based upon a contract for the sale of mining stock, evidence held not to sustain the burden of proof resting upon defendants under a counterclaim, to show that plaintiff, who was the owner of the mine, had agreed to convey to defendants a half interest therein after defendants had developed it under an agreement that development expenses were to be equally shared by the parties after reaching a certain amount. Action by W. R. Abercrombie against W. E. Cullen and others, with counterclaims by de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fendants. From a judgment for plaintiff, de-, contrary, respondent replied the $500 payfendants appeal. Affirmed. Lee & Kimball, of Spokane, for appellants. ent. ment was made for no such purpose, but only as a credit on the $2,000 note. Upon this issue the trial court found for the respondent, and we are satisfied the finding was correct. [2] The only remaining point of controverMITCHELL, J. Plaintiff sued on two sy between the parties, in this court-and it causes of action. The first was on a promis- is the principal one in the whole case-arises sory note in the sum of $2,000, made and de- out of the fourth affirmative answer and livered by defendant W. E. Cullen to plain- counterclaim, which is denied by respondent. tiff. The second was on a written contract Appellants alleged that at the solicitation of between plaintiff and W. E. Cullen, whereby respondent, who was the owner of a group plaintiff, in consideration of $6,250 paid by of mines in Oregon, appellants agreed to conhim, purchased 60,000 shares of the capital tinue the development of the mines to a specstock of a mining corporation of Montana, inified state, with the understanding that the which Cullen was interested, upon the prom-cost, if above $6,000, was to be borne equally, ise of Cullen that later on he would repay plaintiff $1,750. Only $1,500 having been repaid, the action was for the recovery of the remaining $250. Defendants by way of answer say the note was given solely for the accommodation of plaintiff, to be used as collateral in procuring money to be used by plaintiff in the development of mining properties in Oregon, and that the promise to pay the $250 pleaded in the second cause of action was purely gratuitous on the part of defendants, who received no benefits whatever therefrom. Further answering, defendants set up three counterclaims, which were trav-ent the mining claims, in consideration of a ersed by a reply. There was a trial to the court without a jury, resulting in a judgment in favor of plaintiff, from which defendants appealed. [1] As to the second cause of action appellants in their brief say that after respondent purchased the 60,000 shares of mining stock $6,500 was paid to him by a third party for an option thereon at a purchase price of $40,000; that the option was not exercised, and the $6,500 were forfeited to respondent, which is in excess of the amount he paid for the stock which he still owns. Respondent's dealings with his own property as he saw fit in no way relieved appellants. If he had received all of the $40,000 from the third party to whom he gave the option, it was his affair, and still he could collect from appellants what they for a good consideration had promised to pay. The complaint in this cause was served on July 3, 1916. Thereafter, and about January 26, 1917, appellants paid respondent $500, which he indorsed as a credit upon the $2,000 note sued on. Later, in the amended and supplemental answer, which was served and filed on December 3, 1917, it was alleged as an affirmative defense and counterclaim that the $500 was paid upon the representation of respondent it would be received for the purpose of an extension of time for the settlement of all the business affairs between the parties and accounted for in such settlement, but that respondent had refused and neglected to make any settlement, and had and when the work was completed respondent was to convey to appellants an undivided one-half interest in the mines; that pursuant to the agreement appellants completed the work at an expense of $17,000 and demanded of respondent a settlement and a deed of conveyance, both of which were refused. On the other hand, respondent contends a written offer by him, to the effect the appellants at their own expense were to prosecute the work to a specified state of development when, should the ore body warrant it, appellants at their own expense were to pat deed to an undivided one-half interest, was the only offer ever made or consented to in any manner by him, and the one under which appellants made all their expenditures at the close of which they abandoned the enterprise and sold or removed all the supplies, material, and equipment as their own; that appellants have never completed the work according to the offer of respondent who is in no way obligated to them. It is apparent this is but an issue of fact, with the burden of proof upon the appellants. The evidence is voluminous and difficult of reasonable reduction with clearness. The consideration of it satisfies us it more strongly supports respondent's contention. We notice two things especially tending to confirm such view: First, the $500 payment made on the note six months after the action was brought, erroneously claimed in the answer nearly a year later to have been paid in connection with the alleged partnership mining account, the condition of which at that time, according to appellants' present claim, should have suggested a payment from the respondent; second, the circumstance of appellants' borrowing $2,000 from respondent, for which the note in suit was given on November 22, 1915, which as shown by the evidence was to be used and was used by appellants, not respondent, in the development of the mines, at a time when, as the proof shows, appellants' expenditures, together with the $2,000 borrowed, amounted to about $1,000 in excess of the $6,000 limit of separate liabili (185 P.) by the further investment of $10,000 without | State ex rel. Hall v. Savidge, 93 Wash. 676, any call whatever upon the respondent to contribute. Being satisfied the findings and judgment of the court are correct, the judgment is affirmed. HOLCOMB, C. J., and MACKINTOSH, TOLMAN, and MAIN, JJ., concur. (108 Wash. 671) 161 Pac. 471. It therefore seems self-evident that petitioner is entitled to a lease which in its terms grants to him all of the rights which the statute gives him in such cases and without any limitations except those which the statute imposes. The statute clearly authorizes the reservation as to the rights of way (section 1, c. 109, Laws 1911), but we find nothing in the act or the amendments thereto which forms any basis for the reservation of timber and other materials except minerals. Section 6782, Rem. Code, as STATE ex rel. MORRIS v. SAVIDGE, Com-amended by chapter 148, Laws 1917, authormissioner of Public Lands. (No. 15438.) TOLMAN, J. reserves izes the issuance of leases and contracts for the mining of precious metals. Section 6783, as amended, provides for the application by any citizen for a prospecting lease to cover not to exceed 80 acres according to the legal subdivisions. Section 6784 provides for the manner of locating such mineral claims. Séction 6785, the substance of which is included in the lease offered by respondent, provides: "The lessee may cut and use the timber found upon said premises for fuel and construction of buildings, required in the operation of any mine or mines on the premises; also the timber necessary for drains, tramways and supports for such mine or mines, and for no other purpose." Section 6786 provides for the fees, the time the lease shall run, and limits the amount of ore which may be removed while operating under the prospecting lease. Section 6787 provides that any time prior to the expiration of such lease the leaseholder or any assignee thereof shall have the right to obtain from said commissioner of Public Lands a contract "to mine the land covered by said lease and extract and dispose of the minerals taken therefrom." It then proceeds to vest the commissioner of public lands with discretion to determine whether so, to execute and deliver the contract to mine, and further provides that the lease, among other things, shall contain the same privileges as to the use of timber as that contained in the quotation from section 6785 given above. Petitioner alleges that he has made application, paid the fees fixed by law, and is entitled to a prospecting lease covering a certain 80-acre tract of land belonging to the state, and that the respondent refuses to issue to him such lease without inserting therein a provision or reservation to the effect that "the state of Washington in fact the land contains minerals, and, if the right to sell or otherwise dispose of any and all timber and other valuable materials except the minerals which the lessee is hereby authorized to remove, with such rights and privileges for the production, use, and removal thereof as may be authorized by law," and also certain We find nothing in the act or elsewhere reservations as to rights of way, etc., as pro- reserving or requiring the lease to contain vided by chapter 109 of the Session Laws of any words of reservation as to timber, and 1911, though it is admitted on oral argument as a consequence must hold that the comthat these latter mentioned reservations are missioner of public lands is without authorproper, and we understand that petitioner ity to insert the reservation complained of. has waived his objections thereto. A writ of It follows, therefore, that the writ will issue mandate is sought directing the commission- directing the commissioner of public lands er of public lands to issue the lease in the form proposed by him, excepting only the the provisions above quoted. The land commissioner is without discretion in a matter of this kind. State ex rel. Pindall v. Ross, 55 Wash. 242, 104 Pac. 216; to issue and deliver the lease without the reservation quoted or any reservation as to timber on the land involved. HOLCOMB, C. J., and MOUNT, MITCHELL, and FULLERTON, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |