Warwick v. Supreme Conclave Knights of Damon

Citation32 S.E. 951,107 Ga. 115
PartiesWARWICK v. SUPREME CONCLAVE KNIGHTS OF DAMON.
Decision Date18 March 1899
CourtSupreme Court of Georgia

Syllabus by the Court.

Where a certificate in the nature of a policy of life insurance has been issued by a benefit association to one of its members promising to pay out of its beneficiary fund to the wife of the member a specified amount upon his death, and where it is stipulated in the certificate that it is issued upon condition "that the said member complies in the future with the laws, rules, and regulations now governing said conclave and fund or that may hereafter be enacted by the supreme conclave to govern said conclave and fund," the nonpayment of any assessment made upon the member for the common benefit fund which had become due and payable under the laws of the association will not ipso facto amount to a forfeiture of the benefit of life insurance provided for in the certificate; it appearing that there was no law or rule of the association expressly providing that such nonpayment would of itself work a forfeiture. (a) Even where the rules of the association indicate that such nonpayment of a monthly assessment by a member is a ground of suspension, a forfeiture of his benefits under the certificates will not result from such nonpayment, unless there has been some judicatory or affirmative action by the association declaring the members suspended. (b) The mere fact that the collector of such association has entered upon the account of the defaulting member the word "suspended," and has recorded the same on the books of the association, would not amount to such affirmative action; the collector not being empowered to declare a member suspended for any reason, and no action whatever having been taken by the association approving or authorizing such entry on his books.

Error from city court of Macon; J. P. Ross, Judge.

Action by T. F. Warwick, guardian, against the Supreme Conclave Knights of Damon. Judgment for defendant, and plaintiff brings error. Reversed.

Hardeman Davis & Turner, for plaintiff in error.

Hall & Wimberly, A. W. Lane, and Steed, Ryals & Stone, for defendant in error.

LEWIS J.

It appears from the record in this case that the following facts were developed on the trial below: On the 13th of October 1891, the Supreme Conclave Knights of Damon issued to James A. Kennedy what is known as a "benefit certificate," upon evidence received from the subordinate conclave in Macon that he was a third-degree member of that conclave, and was a contributor to the benefit fund of the order issuing the certificate. The conditions named in the certificate were, in substance, that the statements made by Kennedy in his petition for membership and certified by him to the medical examiner were made a part of the contract, and the further conditions that he would comply "in the future with the laws, rules, and regulations now governing the said conclave and fund or that may hereafter be enacted by the Supreme conclave to govern said conclave and fund." These conditions being complied with, the supreme conclave promises and binds itself in the certificates to pay out of its beneficiary fund to Fannie W. Kennedy, the wife of the applicant, $3,000, in accordance with the provisions of the laws governing the fund, upon satisfactory evidence of the death of the member, or a sum not exceeding $1,500 upon satisfactory evidence of the permanent total disability of the member, and upon surrender of the certificate; provided, that the members is in good standing in the order at the time of the death or disability. Besides paying a stated sum to its members upon death or disability. Besides paying a stated sum to its members upon death or disability, it seems that another object of the association was to look to the social and moral culture and enjoyment of its members. Two kinds of payments were required of members of the association. One was known as "dues," which were payable quarterly in advance and belonged in the subordinate conclave. With these dues it seems the supreme conclave had nothing to do. The other payment required was known as an "assessment," which was paid by the members to the collector of the subordinate conclave, and by the latter forwarded to the supreme conclave. This assessment from the various members of the association, it seems, constituted the fund relied on for meeting its obligations under the benefit certificates. In the case of Kennedy, the assessment amounted to $2.28 per month. On the 30th day of August, 1895, Kennedy, while away from home, was killed in a wreck on a railroad. He had paid all dues since his membership required of him up to October 1st following his death, and at the time of his death he was not in arrears for any assessment, save for the month of August, 1895. Prior to his death, his wife had died; and when he died he left as his only heir at law a minor son, who, under the rules of the association, became the only beneficiary under the benefit certificate. Warwick, the guardian of this minor, brought suit on the certificate in the city court of Macon against the Supreme Conclave Knights of Damon. On the trial of the case, after the testimony for both parties had closed, the court directed a verdict for the defendant; whereupon plaintiff moved for a new trial, and in his bill of exceptions complains of error in the judgment overruling his motion. The defense relied upon was that the nonpayment of the assessment for August, 1895, operated as a forfeiture of the insurance and of all benefits under the certificates. The laws of the supreme conclave and of the subordinate conclave of which deceased was a member were introduced in evidence, and we refer in this connection to such portions of them as seem to bear upon the issues involved in this case. It is provided in the first section of the laws of the supreme conclave that "every applicant, before becoming a member, shall pay to the collector, in accordance with his age and the amount of protection applied for, a monthly assessment as provided in the following table, and shall continue to pay the same amount on the first day of each month thereafter whilst remaining a member of this order in good standing." Section 6 of these laws declares that, "on the death of a member who, at the time of his death, shall not be under suspension for the nonpayment of benefit assessment, the conclave shall appoint a committee to ascertain the cause of death and the circumstances attending the same." The section then provides for forwarding the report of the committee and proof of death to the supreme secretary. Section 9 provides that "monthly assessments shall be due and payable to the collector, without notice, on the first day of each and every month, and it shall be the duty of every subordinate conclave to immediately forward to the supreme treasurer the assessments due from every member." Section 10, among other things, declares that, "if such monthly assessment is not received by the supreme secretary on or before the twentieth day of the same month, the supreme commander shall declare such conclave suspended, and the supreme secretary shall forward notice of such suspension to the secretary of the subordinate conclave, giving the cause and date of such suspension in said notice." Section 1 of law 8 provides that: "Any member considering that a decision is unjust, or not in accordance with the constitution and laws of the order, shall have the right to appeal in the manner described as follows: From the commander to the conclave at the same meeting; from the conclave to the supreme commander within thirty days." Section 1 of article 5 of the constitution governing subordinate conclaves provides, among other things, that "the commander shall declare in open conclave such members suspended as are in arrears for assessments or indebtedness to the conclave for more than three months' dues." Section 6 of the same article declares that "the collector shall keep full and correct accounts between the conclave and its members, receive all money due the conclave and promptly pay the same to the treasurer, taking his receipt therefor; he shall supply all members with assessment notice cards, and notify each members when they are in arrears to the amount of three months' dues, and, when a member is in arrears to the amount of six months dues or for an assessment, he shall notify the commander, of the fact." Section 1 of article 8 simply declares that "any member entitled thereto, in good standing, not in arrears for dues or fines, having become a member for six months previously, who many become disabled, by sickness or accident, from following his usual business, shall, if such disability continues for more than one week, receive from the funds of this conclave a sum sufficient to pay his dues and assessments thereafter maturing while said sickness or other disability continues, and such additional benefits as the conclave may by by-laws prescribe, not exceeding in amount, per week," etc. It appears from the evidence in the record that, while the written by-laws required assessments due the supreme conclave to be paid on or before the 1st day of the months in advance, there had been for two or three years before the death of Kennedy an understanding between the officials of the conclave and its members that these assessments need not be paid until the 20th of each month. It further appeared that almost invariably Kennedy had paid his assessment prior to the 20th. While the rule of the supreme conclave required the subordinate conclave to forward assessments by the 20th, the testimony showed that even the supreme conclave received from this particular subordinate conclave in Macon assessments several days after the 20th. It appears...

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