Watkins v. Brotherhood of American Yeomen

• Citation: 188 Mo. App. 626,176 S.W. 516
• Decision Date: 05 April 1915
• Docket Number: No. 11478.,11478.
• Parties: WATKINS v. BROTHERHOOD OF AMERICAN YEOMEN.
• Court: Court of Appeal of Missouri (US)

176 S.W. 516

188 Mo. App. 626

WATKINS v. BROTHERHOOD OF AMERICAN YEOMEN.

No. 11478.

Kansas City Court of Appeals. Missouri.

April 5, 1915.

Rehearing Denied May 3, 1915.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Elizabeth Watkins against the Brotherhood of American Yeomen. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Ed E. Aleshire, of Kansas City, and E. C. Corry, of Des Moines, Iowa, for appellant. Park & Brown, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff sues upon a certificate of insurance, issued to her husband by the defendant, a fraternal beneficiary association. Defendant says the husband had forfeited his insurance for nonpayment of dues within the time required by the by-laws of the order and the terms of the certificate. Plaintiff contends that these provisions in the insurer's favor are waived and cannot now be relied upon. This issue was tried and the jury found for plaintiff. Defendant has appealed.

The certificate was issued March 12, 1912. Watkins, the insured, was to pay every month the sum of $1.80 which, for brevity, we shall term "dues." This was to be collected by the secretary of the local lodge, called the correspondent, and by him remitted to the home office, or Chief Correspondent, so as to reach there not later than the 10th of the month following. Under section 154 of the by-laws these dues must be paid by midnight of the last day of the month; if not so paid, the certificate became null and the payments thereon forfeited. The certificate. also provided that delinquency in this regard rendered the certificate void. But by other sections such suspended member could be reinstated, within 60 days from date of suspension, by merely paying all dues, including those for the current month, provided he was in good health at the time of reinstatement. If, however, he was suspended more than 60 days and less than 6 months, he was required to furnish a health certificate to be approved by the Chief Medical Director.

The insured did not pay the dues for the months of September and October, 1912. On Saturday morning November 30, 1912, insured's wife gave her brother, A. C. Ward, who was living, at the same house, money with which to pay her husband's dues. The husband was working as a mail carrier in the Westport district, and could not attend to it himself. Ward, the brother, neglected to pay the dues to the local secretary on that day, but did so about 1 o'clock the following Monday December 2d. As to what took place when the money was paid the parties differ. Ward says he asked to pay Watkins' dues, and was told that he was suspended for nonpayment of the dues for September, whereupon he told the secretary he thought that month was paid, as they had a receipt therefor. He says the secretary said to him that he could pay the September dues with the others, and if he had paid that month to bring in his receipt therefor, and they would either refund it to insured or give him credit for the January dues; that thereupon Ward paid for four months, September, October, November, and December, amounting to $7.20, and received a receipt therefor. He admits that the Secretary asked him if Watkins was in good health, and that he told him he was. The secretary says he asked him why Watkins did not come himself and that Ward replied he was a mail carrier and did not come in till late. The secretary also says he told him Watkins could not be reinstated if he was not in good health, but that Ward told him he was; that, as Ward claimed they had a receipt for September (which, if true, would make the payment then sought to be made within the 60 clays, and therefore entitle insured to be reinstated without a health certificate), he accepted the dues for the four months of September, October, November, and December, promising that if they brought a September receipt in, he would apply the payment for that month on the January dues. Ward then left and went to the theater that afternoon. On his return home in the evening he learned that Watkins, while on his route carrying the mail that day, had received a fall about 10 o'clock in the morning, which fractured his skull and rendered him unconscious. He had been taken about 11 o'clock to a hospital in the city, where he remained in that condition till his death about 2 a. m. of the next day December 3d. Ward says he knew nothing of the accident at the time he was in the secretary's office, and did not learn of it until he reached home that night. While Ward's claim that he did not know of his brother-in-law's fall may be open to suspicion, yet it is not wholly improbable. There is no evidence to contradict it, nor other ground upon which a trier of the fact would be justified in not accepting his testimony. The case is not one where the payment was made and the reinstatement obtained by fraud; that is, we cannot say there was fraud as matter of law. Indeed, if, by the custom of doing business members were allowed after the lapse of sixty days to pay their dues without furnishing a certificate of health, then the element of fraud does not enter into the case. So that the question involved is only one of waiver or no waiver.

As a matter of fact Watkins had not paid his dues for September, as Ward thought he had. He had paid his August dues on September 4th, and received a receipt dated on that day. It was this receipt Ward and plaintiff's wife had thought was the September receipt. By the strict terms of the policy and of section 154 of the by-laws, Watkins, ipso facto, stood suspended when he failed to pay the August dues by midnight of the 31st of that month. But his money had been received September 4th without enforcing the suspension, or making any note thereof. And, according to defendant's own evidence, his suspension for the nonpayment of the September dues was not noted on the books until October 1, 1912. The work of collecting the dues was left entirely to the secretaries or correspondents of the local lodges. They were not required to report the dues collected for each month until the tenth of the month following. These reports were not arranged so as to show when the member paid his dues, whether before the end of the current month or during the 10 days of the next month. And the secretaries were in the habit of sending in all sums paid up to the 10th, even if they were for dues payable and due on the last day of the preceding month. The record of suspensions was kept in the offices of the local correspondents by marking an "S" after the name of the member suspended and an "R" thereafter upon his reinstatement.

The evidence, however, shows clearly that the head office knew the local secretaries were allowing members to pay their dues after the expiration of the month for which they were due. Twenty per cent. of the members failed to pay their dues on the last day of the month, as the by-laws required, and yet were allowed to pay without having been suspended, and it became the custom not to require them to pay on the last day of the month. Eighty or 90 per cent. of the money collected by the secretary on December 2d, the day Ward paid Watkins' dues, was for the month of November, but no suspensions were enforced or noted. It might be thought that, inasmuch as the local secretaries had authority without a health certificate to reinstate the members who paid up within 60 days, the noting of suspension as to those who thus paid was a mere matter of form which would not affect the status of such members, since the mere payment of their dues within 60 days reinstated them, so that it was not material whether suspension and subsequent reinstatement was noted on the books or not. But this is a circumstance showing that the by-laws were not being observed in this regard, and that as a matter of fact the insurance was treated as being still in force after the end of the month, although the dues for that month had not been paid.

Now with reference to those members who were delinquent but did not pay up within the 60 days, the evidence shows that they, too, were allowed to pay the same as those who had paid within the 60 days. The books showed that the dues of one member, Lena E. Washington, for the months January to July, both inclusive, were not paid until July 16th, which was much more than 60 days after delinquency for the months of January, February, March, and April, and yet neither suspension was noted or health certificate required. The same was true of a large number of others who paid their dues more than 60 days after their delinquency, and no suspension was enforced nor health...