Cline v. Sovereign Camp, Woodmen of World

• Decision Date: 03 April 1905
• Citation: 86 S.W. 501,111 Mo.App. 601
• Parties: EMMA A. CLINE, Respondent, v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, Appellant
• Court: Kansas Court of Appeals

86 S.W. 501

111 Mo.App. 601

EMMA A. CLINE, Respondent, v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1905

Appeal from Jackson Circuit Court.--Hon. S. C. Douglass, Judge.

AFFIRMED.

Judgment affirmed.

Brown Harding & Brown, Brome & Burnett for appellant.

(1) Under the constitution and laws of the defendant, the clerk of the camp could not waive the provisions of its constitution and laws respecting the payment of assessments in the absence of knowledge and acquiescence on the part of the defendant. Modern Woodmen v. Tevis, 117 F. 369 54 C. C. A. 293; Royal Arcanum v. Taylor, 121 F. 66, 57 C. C. A. 406; McMahon v. Maccabees, 151 Mo. 535-540; Lavin v. Grand Lodge, 104 Mo.App. 1-15; Hawkins v. Sov. Camp W. O. W., Supreme Court of Tennessee. See certified copy of opinion on file in this case. Assurance Co. v. Building Association, 183 U.S. 308; Ins. Co. v. Buxer, 62 Ohio Stat. 256; Bacon on Benefit Societies (2 Ed.), sec. 388, 434 a; Schmidt v. M. W. A., 54 N.W. 264; State ex rel. John H. Young v. Benevolent Ass'n, 42 Mo.App. 485; Royal Highlanders v. Schoville, 92 N.W. 206 (Neb.); Borgraefe v. Knights of Honor, 22 Mo.App. 127; Smith et al. v. Sovereign Camp W. O. W., Supreme Court of Mo., Div. 2, Dec. 23, 1903, 77 N.W. 862, 179 Mo. 119; Field v. Knights and Ladies of Security, 89 N. W. (Neb.) 773; Kocher v. Supreme Council, 48 A. 544 (N. J.); Lyon v. Supreme Assembly, 26 N.E. 236 (Mass.); State ex rel. Young v. Temperance Ben. Soc., 42 Mo.App. 489. (2) The facts in the case do not justify the legal conclusion of a waiver of strict compliance with the Constitution and laws on the part of member Cline in the payment of his assessment and dues, especially the assessment upon which he became suspended, and which was unpaid at the time of his death. Smith et al. v. W. O. W., 179 Mo. 119, 77 S.W. 862; Shmidt v. M. W. A., 54 N. W. (Wis.) 264. (3) We further submit that there is no waiver in this case for the reason that clerk Edwards during the month of August sent to the deceased, and the deceased received same, a notice which specifically stated and informed him that if he failed to pay the August assessment on or before the first of September he would become suspended.

Botsford, Deatherage & Young for respondent.

(1) Where a principal voluntarily and intentionally receives and retains, monthly, from time to time, and from year to year, from its agent the avails and proceeds from collections authorized by it to be made by the agent upon performance of certain conditions, without inquiry by such principal on the monthly receipt thereof as to such performance of such conditions, and without requiring information of such performance, the principal will be held to have ratified the non-performance of such conditions and become bound by the receipt and retention by it of the avails and proceeds of such collections. Meecham on Agency, sec. 148; Waterson v. Rogers, 21 Kas. 529; Ely v. James, 123 Mass. 36; Bank v. Silk Co., 3 Met. 282; Story on Agency (9 Ed.), 259; State ex rel. v. Smith, 48 Vt. 266, l. c. 286; Society v. Paddock, 80 Ill. 263; Rich v. Bank, 7 Neb. 201; Bacon v. Johnson, 56 Mich. 182; Mundorff v. Wickersham, 63 Pa. St. 87; Lodge v. Mellenvoss, 119 F. 671; Lodge v. Mellenvoss, 56 C. C. A. 287, l. c. 291; Lodge v. Kalinski, 163 U.S. 289, l. c. 298; Eadie v. Ashbaugh, 44 Ia. 519; Dunn v. Railroad, 48 Conn. 434; Morse v. Ryan, 26 Wis. 356; Meehan v. Forester, 52 N.Y. 277; Fowler v. Bank, 67 N.Y. 138; Palmerton v. Huxford, 4th Den. 166; Moss v. Mining Co., 5 Hill 137; Ten Brock v. Boiler Co., 20 Mo.App. p. 19; Brown v. Wright, 25 Mo.App. 54; Fahy v. Grocer Co., 57 Mo.App. 73, l. c. 77; Meyer v. Old, 57 Mo.App. 639, l. c. 645, Ruggles v. Washington County, 3 Mo. 496; Norton v. Bull, 43 Mo. 113; Watson v. Bigelow, 47 Mo. 413; Lord v. Society (Mich.), 96 N.W. 443; Beil v. Lodge, 80 App.Div. Rep. (N. Y.) 609; Modern Woodmen v. Coleman (Neb.), 94 N.W. 814; Purdy v. Association, 101 Mo.App. 91; Andre v. Modern Woodmen, 102 Mo.App. 377; Lodge v. Lachmann, 199 Ill. 140.

(3) In this case the uncontradicted evidence of the clerk of the Kansas City camp during the ten years during which plaintiff's husband paid assessments and dues to defendant, had full authority from defendant, both by its by-laws and by the course of dealing between said clerks on the one hand, and the sovereign clerk of the defendant on the other hand, to receive delinquent assessments and dues from plaintiff's husband when they were paid by him at any time within the three months following the time when those assessments and dues became delinquent, and to transmit the same to said sovereign clerk. McCullom v. Ins. Co., 67 Mo.App. 66, 76, l. c. 79; Frame v. Woodmen, 67 Mo.App. 127-136; Bovard v. Union, 94 Mo.App. 442; Ross-Langford v. Ins. Co., 97 Mo.App. 79; Cauveren v. Lodge, 98 Mo.App. 433; Andre v. Modern Woodmen, 102 Mo.App. 377; Nickell v. Ins. Co., 144 Mo. 420; James v. Life Association, 148 Mo. 1, l. c. 1013; Laundry Co. v. Ins. Co., 151 Mo. 90, l. c. 98; Grand Lodge v. Lachmann, 199 Ill. 140. (4) On the facts of this case defendant waived the payment out of time of the assessment mentioned in the answer. Hopkins v. Modern Woodmen, 94 Mo.App. 402; Courtney v. Association, 101 Mo.App. 261. (5) In order to suspend plaintiff's husband for the non-payment of his assessment and dues, he should have been given notice of his suspension in his lifetime. The notice of his suspension after his death was without force. Puhr v. Lodge, 77 Mo.App. 47, l. c. 63; Lewis v. Association, 77 Mo.App. 586; Seehorn v. Catholic Knights, 95 Mo.App. 233; McMahon v. Maccabees, 151 Mo. 522, l. c. 537. (6) Where an insurance company, with knowledge on the part of its agents of a forfeiture of its policy or certificate, fails to cancel the policy or certificate, it will be deemed to have waived such forfeiture. Lewis v. Benefit Assn., 77 Mo.App. 586; McCullom v. Ins. Co., 67 Mo.App. 76; Nedro v. Ins. Co., 43 Ia. 24; Ins. Co. v. Cooms, 20 S.W. 900; Osterloh v. Ins. Co., 60 Wis. 126; Ins. Co. v. Boyer, 1 Ind.App. 329; Ins. Co. v. Markle, 1 Ind.App. 411; Fire Co. v. Trust Co., 44 Neb. 380. (7) Acceptance or demand, as was done repeatedly in this case of premiums or assessments on a life policy or certificate, knowing that the policy or certificate is subject to forfeiture for a violation of a condition, is a waiver of the condition. Watson v. Association, 21 F. 698; Cotton v. Fid. & Cas. Co., 41 F. 506; Lodge v. Wellenvouss, 119 F. 671; Ins. Co. v. Wolf, 95 U.S. 326; Fitzpatrick v. Ins. Co., 56 Conn. 116; Ins. Co. v. Anmerman, 119 Ill. 329; Fergason v. Ins Co., 22 Hun 320; Story v. Ins. Co., 37 La. Ann. 254; Viall v. Ins. Co., 19 Barb. 440; Mutual Pro. Co. v. Mitchell, 48 Pa. St. 374; McKenzie v. Ins. Co., 56 Tenn. 261; Schwarzback v. Pro. Union, 25 West Va. 622; Osterloh v. Ins. Co., 60 Wis. 126; McKinney v. Ins. Co., 89 Wis. 653; Lord v. Assn., 96 N.W. 443; Beil v. Supreme Lodge, 80 App.Div. Rep. 609.

OPINION

ELLISON, J.

This action is based on a benefit certificate of insurance on the life of William T. Cline in the sum of two thousand dollars. On the death of Cline the plaintiff became his widow and, as beneficiary, now seeks to enforce the certificate. She obtained judgment in the trial court.

It appears that Cline was injured on September 21st, 1901, and that he died of such injury on September 26th, thereafter. He had taken out the certificate ten years before and had not been prompt in his payment of his monthly dues during that time. These monthly dues were due and payable on or before the first day of the succeeding month. As usual with him, he defaulted his August, 1901, dues and they were not paid on September 21st, the day he received his injury. It seems that he was delinquent six times prior to 1900, and after that defaulted about every other month. After receiving his injury he tendered the dues which tender was refused.

The certificate was subject to, and was to be controlled by, the by-laws of the order. One of these provided that if a member failed to pay his dues on or before the first of the succeeding month he should stand suspended; and that during such suspension his certificate should be void. Another by-law provided that should a delinquent and suspended member personally appear before the clerk of the local camp and apply for reinstatement within three months of the date of his suspension and pay all arrearages he should be restored, if in good health. Plaintiff's arrearages were always paid within the three months' limit and he would be restored. It was further provided in this by-law that in lieu of personal appearance, he might make written application and statement of his health. There were other provisions in the by-laws disabling any officer of sovereign or local camp from waiving any of the conditions upon which the certificates were issued, or of the by-laws and constitution of the order.

The sole question in the case is whether defendant could and did waive the provisions in its by-laws to such extent that notwithstanding the deceased's delinquency, his certificate was still in force at the time of his death. Looking at the certificate in connection with the by-laws and disconnected from any consideration of waiver, a delinquent member became, ipso facto, suspended upon his default with his dues, without any action of the order itself. Smith v. Woodmen of the World, 179 Mo. 119 77 S.W. 862. But it has become the settled law of this State (in this respect differing from that of some others) that, the order, or organization itself, may waive compliance with its laws. So therefore we now conclude that the provisions in such laws attempting to disable the organization from waiving compliance...