Brown v. Knights of the Protected Ark

• Decision Date: 04 May 1908
• Citation: 96 P. 450,43 Colo. 289
• Parties: BROWN v. KNIGHTS OF THE PROTECTED ARK.
• Court: Colorado Supreme Court

96 P. 450

43 Colo. 289

BROWN v. KNIGHTS OF THE PROTECTED ARK.

Supreme Court of Colorado

May 4, 1908

Rehearing Denied July 6, 1908.

Appeal from District Court, Pueblo County; John H. Voorhees, Judge.

Action by Omie Brown against the Knights of the Protected Ark Judgment for defendant, and plaintiff appeals. Affirmed.

On the 30th of September, 1901, Samuel A. Brown procured a certificate of insurance from appellee, Knights of the Protected Ark, a fraternal association organized under the laws of the state of Kansas; he was at the time a member of Pueblo Ark No. 37, in this state. By the term of this policy or certificate he was to pay such dues and assessments as were provided for by the constitution and by-laws. Upon satisfactory proof of his death his wife, Omie Brown, the beneficiary, was to receive $200 per year, payable quarterly for ten years, and thereafter so long as she remained a widow. On August 6, 1902, said Samuel A. Brown departed this life, his widow, the said Omie Brown, surviving him.

The certificate of insurance contained, among other things, the following: 'All the provisions contained in the constitution and by-laws of the Supreme Ark and all the benefits accruing from said certificate shall be liable to forfeiture if said member shall not comply with the said conditions and said constitution and by-laws, and with such laws as are or may hereafter be adopted by the Supreme Ark or by the Subordinate Ark, of which he is a member.'

When said certificate of insurance was issued to Brown the by-laws of the association in force contained the following provision: 'Assessments and dues as per schedule are due and payable without notice on the 15th day of the month, but a member will not be suspended for nonpayment until after the first day of the succeeding month.' Thereafter and on May 5, 1902, a new constitution and set of by-laws was adopted by the Supreme Ark. Among the new by-laws was the following 'Should a beneficiary member fail to pay his or her assessments and dues on or before the first day of each month the said member shall stand suspended and cease to be entitled to any benefits, and his or her certificate shall at once cease to be in force and shall become null and void, and all payments to this Order shall be forfeited; provided, that said member may reinstate within ten days from the date of said suspension by the payment of delinquent dues and assessments, and after ten days and up to thirty days said member may be reinstated by the payment of dues and assessments and signing a statement of sound bodily health.'

At the time of Brown's death, viz., August 6, 1902, his monthly assessment and dues payable on the 1st of August had not been tendered and remained unpaid. The treasurer or local accountant of the association was accustomed to receive the payments up to the 10th of each month, the member then becoming reinstated by virtue of said last-mentioned by-law. And on the said 6th of August, 1902, the son of deceased paid to the local accountant the assessment and dues thus remaining unpaid; immediately after the same had been received he informed the accountant that his father had died a few hours before; thereupon the accountant stated that he could not receive such dues, as deceased had been suspended as a beneficiary member for nonpayment thereof on the first of the month; the money was at once returned to the son, and the receipt given him was destroyed. At the time of receiving this money the local accountant had no knowledge either of the sickness or death of Brown. The association, relying upon the suspension of Brown and the cancellation of his certificate, declined to recognize any claim or right of his widow based upon the said certificate of insurance, and on January, 17, 1903, she began the present action. An answer and replication were afterwards filed, and the issues were thus made up for trial. The parties thereupon entered into an agreed statement of facts, the substance of which in so far as material is above set forth. By agreement a jury was waived, and the cause was tried to the court. The same having been duly argued and submitted, judgment was entered dismissing the complaint. To review that judgment, the present appeal was taken.

James F. Drake, for appellant.

Elwell & Collins, for appellee.

HELM, J. (after stating the facts as above).

The decision of this case by the court below and the review here require an interpretation of the original certificate of insurance, coupled with the by-laws relating to suspension for nonpayment of assessments and dues.

The by-law in force when the contract was entered into directed that such payments be made on the 15th of each month; but no suspension of the member for failure in this regard took place till the first day of the next succeeding month. Afterwards, however, and before the death of Brown, this by-law was by the Supreme Ark repealed, and another was substituted therefor. The by-law thus substituted provided that upon failure of the beneficial member to pay his assessment and dues on the first day of each month he should stand suspended, his certificate should cease to be in force and become null and void, and all payments previously made should be forfeited; but if within ten days after such suspension the member paid in the requisite sum his act operated to reinstate him. Obviously, if the first of the foregoing by-laws can be considered in force at the time of Brown's decease, there was no suspension of his contract or membership. It was not even necessary for his son or for any one else to have paid or tendered the assessment and dues for August; as the same were not payable until the 15th of that month, some nine days after his death. And plaintiff should have succeeded in her action.

On the other hand, it is equally clear that if the by-law last above referred to was in force at the time of Brown's death and was not in some way modified or limited by the certificate of insurance, plaintiff was not entitled to recover. For by that provision the failure to make payment of the assessment and dues on the 1st of August operated in and of itself to nullify the contract, cancel his insurance, and suspend his beneficiary membership. The 10-days provision could not avail plaintiff because no reinstatement of Brown could take place after his death; the regulations contemplating payment and acceptance of the assessments and dues subsequent to the first of the month must be availed of by the member himself during his lifetime. The language employed in the by-law forbids the view that his beneficiary could after his death take advantage...