Borgraefe v. Supreme Lodge Knights and Ladies of Honor

• Decision Date: 17 May 1887
• Citation: 26 Mo.App. 218
• Parties: MARIA BORGRAEFE, Respondent, v. SUPREME LODGE, KNIGHTS AND LADIES OF HONOR, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 218

MARIA BORGRAEFE, Respondent, v. SUPREME LODGE, KNIGHTS AND LADIES OF HONOR, Appellant.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

S HERMANN, for the appellant: Where the contract, as defined in the laws of the society, makes the payment of assessments, or the member's being in " good standing," a condition to the right of sharing in the benefit fund, a failure to pay such assessments, or to remain in " good standing," will prevent a recovery on the certificate. Benevolent Society v. Baldwin, 86 Ill. 479; Madeira v. Mut. Ben. Soc., 16 F. 749; Zeigler v Mutual Aid Ass'n, 1 McGloin (La.) 284; Karcher v. Sup. Lodge, 137 Mass. 368; Knights Golden Rule v Ainsworth, 71 Ala. 436; Thompson v. Ins. Co., 104 U.S. 252; Yoe v. Howard Mut. Ben. Ass'n, 63 Md. 90. The non-payment of contributions to the relief fund, at the time prescribed by the laws of the society, will preclude participation in the said fund; and that, even though the defaulting member has not been formally suspended for such default, and though prevented by sickness from making payment. McMurray v. Sup. Lodge, 20 F. 107; Masons' Ben. Soc. v. Baldwin, 86 Ill. 479; Sup. Council v. McCurd, 111 Ill. 284; Fisher v. Schiller Lodge, 11 Ins. Law Jour. 164; A. O. U. W. v. Moore, 9 Ins. Law Jour. 485; Hawkshaw v. Supreme Lodge, Chicago Legal News, Jan. 22, 1887; Carpenter v. Life Ass'n, 58 Iowa 452. Where the facts are undisputed, it is the duty of the court to declare to the jury the inference, which the law draws from the facts, which inference bars the plaintiff of any recovery. Powell v. Railroad, 76 Mo. 81; Lenix v. Railroad, 76 Mo. 91; Yarnall v. Railroad, 75 Mo. 583; Ellis v. Bray, 79 Mo. 227; Hacker v. Brown, 81 Mo. 68; Maher v. Railroad, 64 Mo. 267.

GEORGE D. REYNOLDS and C. W. HOLTCAMP, for the respondent: The case was tried strictly in accordance with the law of the case, as laid down by this court (see S. C., 22 Mo.App. 127, 145), and should be affirmed.

OPINION

ROMBAUER J.

This cause was heretofore before the court, and its opinion is reported in 22 Mo.App. 127, 148, where the rules of the defendant order, and evidence, bearing upon the plaintiff's right of recovery, are set out in detail. The rulings of the trial court on the evidence in the former trial, and its charge to the jury, were not then reviewed, because, on the hearing and first examination of the cause, we were unanimously of opinion, that, upon the undisputed facts of the case, the plaintiff was not entitled to recover, regardless of any errors of the trial court. We, therefore, reversed the judgment without remanding the cause. Upon a further review of the evidence, on the plaintiff's motion, we were inclined to hold that evidence of the fact that the decedent never received a certain notice which was shown to have been sent to him by mail, was a circumstance tending to show that the notice was never mailed, and that, on that evidence, she was entitled to go to the jury.

The defence in the last trial, as in the preceding one, consisted of: (1) A general denial. (2) An averment that, prior to his death, the deceased voluntarily withdrew from the lodge, and, thereby, lost and surrendered all privileges arising from his connection with the lodge and the defendant. (3) That he did not comply with the rules, laws, and requirements of the order, in that he failed to pay a certain assessment, described as assessment number 138, class A, whereby he had, prior to his death, become suspended by operation of the laws of the order, and that he had never been reinstated, but had died while so suspended.

This last defence was the only one which was discussed in our former opinion, the court, at first, holding, that the defence on that point was conclusively established by uncontroverted evidence, but, subsequently, on the plaintiff's motion, remanding the cause without entering into an examination of other points arising upon the record.

Touching the plaintiff's voluntary withdrawal from the lodge and order, the evidence at the last trial was as follows:

After some preliminary demand for a withdrawal card from the lodge, and its refusal to grant it, as stated in the former report of this case (22 Mo.App. 131), the deceased addressed the following letter to the lodge:

" ST. LOUIS, October 9, 1884.

Sir Knights and Ladies of Ada Lodge, No. 883.

As I have already had so much work and annoyance with the lodge, and now have other uses for my money than for the required baptismal certificate, I would, therefore, hereby inform you that I no longer regard myself as a member of the order, wherefore I now demand return of papers belonging to me as soon as possible.

" With respect,

FRED BORGRAEFE."

The evidence tended to show that, at the date of this letter, the deceased was sick, and continued confined to his bed until the date of his death, which took place on the thirteenth day of December, 1884.

There was no evidence that the lodge ever took any action on this letter by returning to the defendant any papers; nor is there any evidence what papers are referred to in the letter; nor is there any evidence that the lodge assented to his withdrawal; nor is there any evidence that, from that time on, until the date of his death, the deceased, by act or word, intimated that he considered himself still a member of the lodge or order. The plaintiff's own evidence shows that, subsequent to that date, assessment notices were sent to the deceased, and he paid no attention to them whatever. One of the defendant's witnesses, and a lodge member, testified that, after this letter of the deceased was received at the lodge, in October, he saw him and told him to come back, and the deceased replied, " I can not do it, I want to do nothing more to the lodge." Another witness for the defendant, also, a lodge member, testified that she saw him on the second Sunday of November, 1884, and asked him whether he would not come to the lodge again, and he replied, no, that he did not belong to the lodge any more, and that he did not care what papers they sent him. The plaintiff herself was present at this second interview, remembers it, and remembers that the witness and the deceased spoke about the lodge, but can not state the details of the conversation.

This being the evidence on this point, the court, on its own motion, charged the jury as follows:

" 1. If you find, from the evidence, that the plaintiff was the wife of Fred. Borgraefe when he died, and that, up to the death of Fred. Borgraefe, said Ada Lodge had not assented or consented to his proposed withdrawal from membership (in accordance with his letter of October 9, 1884, as explained in instruction number five); and further find, from the evidence, that the second (sometimes mentioned in evidence as the ‘ delinquent’ ) notice for assessment, number one hundred and thirty-eight, was not mailed to Borgraefe prior to his

...