Britt v. Sovereign Camp of Woodmen of the World

• Decision Date: 13 February 1911
• Citation: 153 Mo. App. 698,134 S.W. 1073
• Parties: BRITT et al. v. SOVEREIGN CAMP OF WOODMEN OF THE WORLD.
• Court: Missouri Court of Appeals

134 S.W. 1073

153 Mo. A. 698

BRITT et al. v. SOVEREIGN CAMP OF WOODMEN OF THE WORLD.

Kansas City Court of Appeals. Missouri.

February 13, 1911.

Rehearing Denied March 6, 1911.

1. INSURANCE (§ 748)—BENEFIT INSURANCE— FORFEITURE—INSTRUCTION.

When a forfeiture is claimed by a fraternal benefit association, forfeiture must be based on the violation by the member of a precise condition laid down in the contract.

2. INSURANCE (§ 751)—MUTUAL BENEFIT INSURANCE —FORFEITURE—DEFAULT AS GROUND OF FORFEITURE.

It is competent for a fraternal benefit association and a member accepting a certificate therein to agree that regular assessments shall be due without special notice, and that default in their payment shall ipso facto suspend the member and void the certificate during suspension.

3. INSURANCE (§ 755)—MUTUAL BENEFIT INSURANCE —DUES AND ASSESSMENTS—NOTICE OF ASSESSMENTS—WAIVER OF PROVISIONS.

The certificate and by-laws of a fraternal benefit association provided that a regular monthly assessment should be levied, with additional irregular assessments, and the by-laws provided only for notice of the irregular assessments, but it was the custom of the company to levy the regular assessments with the same formalities as the irregular assessments, and camps of the association carried delinquent members for a time, and such assurance was given the wife of a member before default in his assessments. Held, that this conduct amounted to a waiver of the provisions of the certificate, whereby the member upon default in an assessment was ipso facto suspended.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Mattie Britt and others against Sovereign Camp of Woodmen of the World. Judgment for plaintiffs, and defendant appeals. Affirmed.

James W. Garner and Hunt C. Moore, for appellant. E. W. Shannon and Fyke & Snider, for respondents.

JOHNSON, J.

Plaintiffs, the beneficiaries of a death benefit certificate issued by defendant May 16, 1906, to Edward Britt, commenced this suit in the circuit court of Jackson county to recover the amount alleged to be due them under the terms of the certificate. It is conceded that Britt died May 6, 1909, and that defendant refused to recognize the demand of plaintiffs as a valid obligation. The cause pleaded in the petition is stated as one founded on an ordinary life policy. The answer admits the defendant issued its beneficiary certificate to Edward Britt, payable to plaintiffs in the event of the death of the holder, but alleges that defendant is a fraternal beneficiary association, incorporated in Nebraska and authorized to do business in this state, and that Britt, at the time of his death, had ceased to be a member of the association, and had forfeited the certificate because of his failure to pay certain assessments levied in accordance with defendant's constitution and by-laws, which constituted a part of the contract of insurance. The answer is voluminous, and we need not comment further on it than to say it was sufficient to raise the issues we shall discuss. The case was tried before a jury, and the cause is before us on the appeal of defendant from a judgment recovered by plaintiffs.

The evidence discloses—and the court so instructed the jury—that defendant, during the period of the transaction in controversy, was a fraternal beneficiary association authorized to do business in this state. It has a lodge system with ritualistic form of work, a representative form of government, and issues benefit certificates in accordance with its constitution and laws. Its head lodge and office is in Nebraska, but it has branch lodges or "camps" scattered over the country, among them "Oakwood Camp No. 82," in Kansas City, of which Britt became a member.

The certificate issued to Britt stated that it was "issued and accepted subject to all of the conditions on the back hereof, and subject to all of the laws, rules and regulations of this fraternity now in force or that may hereafter be enacted, and shall be null and void if said sovereign does not comply with all of the said conditions and with all of the laws, rules and regulations of the Sovereign Camp of the Woodmen of the World, that are now in force or which may hereafter be enacted, and with the by-laws of the camp of which he is a member."

The by-laws gave certain sovereign officers authority to levy assessments to pay death losses, etc., and provided in addition that "every member of this order shall pay to the clerk of his camp each month one assessment * * * which shall be credited to and known as `Sovereign Camp fund' and he shall also pay such camp dues as may be required by the by-laws of his camp. He shall pay any additional assessments for the Sovereign Camp fund and camp dues or either which may be legally called." The failure to pay any such dues or assessments on or before the first of the month following ipso facto suspended the member, and the by-laws provided that "during such suspension his beneficiary certificate shall be void." The regular monthly assessment the certificate required Britt to pay was $2.05, to the Sovereign Camp fund, and dues to the local camp of 25 cents.

The suspension of Britt from membership in the order and the forfeiture of his certificate were and are claimed by defendant to have resulted from his failure to pay regular assessment No. 206, due November 1, 1907. Plaintiffs contend that he paid that assessment, but it is conceded that none of the subsequent monthly assessments were paid. Although such assessments were regular and definite, it appears to have been the custom of defendant to observe the same formalities with respect to them as were provided in the laws for levying other assessments. On October 20, 1907, the Sovereign Clerk was notified in writing by the Sovereign Commander and the Chairman of the Sovereign Finance Committee "that one assessment was necessary to be collected from all members during the month of November, 1907." On receipt of this notice the Sovereign Clerk sent out a notice of the assessment to the clerks of the local camps, including the clerk of Oakwood Camp No. 82. In this notice the clerk was requested "to mail to the last known post office address or deliver to every member of your camp on or before the 5th day of November, 1907, a reminder to pay said Sovereign Camp fund assessment and camp dues." It was the practice of the local clerks to send out notices to the members in obedience to these requests from the Sovereign Clerk. Such was the method followed with respect to the regular assessment for the months intervening between assessment No. 206 for November, 1907, and the death of Britt which, as stated, occurred in May, 1908. The answer pleaded "that the said Edward Britt did fail to pay said assessment for the said month of November on or before the 1st day of December following, and by reason of his failure to pay the same, his certificate became null and void, and he was on that day suspended and is not entitled to recover in this action, * * * and that, although assessments have been regularly made each month since the first day of ...