Brotherhood of Locomotive Firemen & Engineers v. Milner

• Decision Date: 04 February 1915
• Docket Number: 914
• Citation: 69 So. 10,193 Ala. 68
• Court: Alabama Supreme Court
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEERS v. MILNER.

69 So. 10

193 Ala. 68

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEERS v. MILNER.

No. 914

Supreme Court of Alabama

February 4, 1915

Rehearing Denied May 20, 1915

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Mrs. John A. Milner against the Brotherhood of Locomotive Firemen & Engineers, upon an insurance policy issued on the life of Hiliary H. Milner. Judgment for plaintiff, and defendant appeals. Affirmed.

The pleas set up failure to pay dues, the condition that the constitution and by-laws might be altered or amended, and that as altered and amended should become a part of the contract; that at the time of the death of Milner, the constitution then in effect provided that on or before the first day of each month each member should pay to the financial secretary of the lodge the amount of all legally authorized assessments, and, failing therein, such member should stand expelled, and that no action of the lodge was necessary or required to give effect to such expulsion, the same to become effective on the second day of each month, and that the insurance under the beneficiary's certificate should remain in force only 30 days thereafter, but Milner failed to pay the assessment due April 1, 1911, amounting to $2.40, as provided in the constitution, and that he stood expelled on April 2, 1911, and remained so for more than 30 days, and consequently the same was not in force at the time of his death in July, 1912. Plea 7 is as follows:

"Defendant says that the beneficiary's certificate which constituted the insurance contract under which the said Milner was insured as alleged provided that the constitution then in force, or as may thereafter be offered or amended was and should be a part of the contract in the same manner and to the same extent as if said constitution or alteration or amendments thereof were written therein, and said certificate further provided that the acceptance of a certificate by the aforesaid member [Hiliary H. Milner] should constitute an acknowledgment upon the part of said member that he agreed to each and every condition named therein. The said constitution of defendant referred to and made a part of said beneficiary's certificate by adoption therein, and in force and effect at the time of the loss sued on thereunder, provided that on or before the first day of each month each member shall pay to the financial secretary of the lodge the amount of all legally authorized assessments; and said constitution further provided that any member, failing or declining to make of his assessments as therein provided, should stand expelled, and no action of the lodge shall be required to be taken to give effect to said expulsion, same to be effective on the second day of the month, and at the first meeting in every month the financial secretary shall report to the lodge the names of all members who have been expelled, etc. And defendant further avers that the said Milner failed to pay to the financial secretary of said lodge the amount of all his legally authorized assessments, as provided for in said constitution, for a long time, to wit, the month of April, 1911, and that under the terms of said constitution he stood expelled on the records of the lodge, and was so reported by the financial secretary in said constitution, and that said constitution provided that, after 30 days from the date of expulsion for the cause aforesaid, liability under the policy sued for should cease and that the said Milner was never readmitted to membership in said lodge."

The replication set up that the financial secretary received a sum sufficient to pay said assessment for April, 1911, and all other assessments due by said Milner up to the time said payment was made, knowing that the said Milner had so failed to pay the assessment due April 1, 1911, and while the said secretary was acting within the line and scope of his duties. The rejoinder was that, at the time the receipt by the financial secretary of said lodge of the amount of said dues and assessment, Milner was in a state of failing health, and not a fit subject of insurance, as provided in the constitution of said order, which was adopted into and became a part of the beneficiary's certificate sued on, a fact well known to those who were attempting to get him reinstated or readmitted as a member of said order, which fact was unknown to said secretary and said local lodge, and some time prior to the death of said Milner, J.W. Greene, acting as the agent of said Milner, and within the scope of his authority made a demand upon said financial secretary for the return to him of the amount of said dues and assessments, and said financial secretary paid him said amount, and took his receipt for the same, wherefore defendant by its ministerial officers and agents did not waive the forfeiture for nonpayment by said Milner of said dues and assessments, and plaintiff cannot recover.

The following charges were refused to defendant:

"(11) The court charges the jury that under the law of this state, when an attempt is made to reinstate a member of an organization, such as this, after expulsion for nonpayment of assessments, by paying past assessment to the officers of the lodge, this payment shall be fairly and honestly made and that it is the duty of those seeking to reinstate such member to communicate the state of his health to the officers to whom such payment is made, and if you believe from the evidence in this case that Milner knew that his brother was in declining health when he attempted to have him reinstated in said lodge and paid $32 to Herman Dowe, the financial secretary, and Dowe nor the lodge knew that he was in declining health, then I charge you plaintiff cannot recover on

any count of the complaint."

"(6) If you believe from the evidence in this case that at the time the $32 in evidence was sent by H.A. Milner to Dowe, and that said H.A. Milner knew that his brother H.H Milner was in failing health, and that Herman Dowe did not know then that he was in failing health, and that said H.A Milner was silent as to the state of his brother's health, then you cannot find for plaintiff

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