Burke v. Grand Lodge A. O. U. W.

• Decision Date: 29 March 1909
• Citation: 118 S.W. 493,136 Mo.App. 450
• Parties: MARGARET ANNE BURKE, Respondent, v. GRAND LODGE A. O. U. W., Appellant
• Court: Kansas Court of Appeals

118 S.W. 493

136 Mo.App. 450

MARGARET ANNE BURKE, Respondent, v. GRAND LODGE A. O. U. W., Appellant

Court of Appeals of Missouri, Kansas City

March 29, 1909

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

AFFIRMED.

Judgment affirmed.

H. L Jost and F. H. Bacon for appellant.

(1) The doctrine contended for here is that, if an officer of the subordinate lodge, or the subordinate lodge itself, pays assessments for a member, at his request, either as a loan or a gift, such member, if the grand lodge officers have knowledge of such a transaction, is thereafter privileged to pay or not to pay, as he pleases, and if he does not pay, no suspension results. If this doctrine be true, no subordinate lodge can, out of its own funds, assist its unfortunate members in any way, if the grand lodge officers know of it without thereby wiping out the laws of the superior body relative to the prompt payment of assessments. In the case of Franta v. Bohemian, etc., Union, 164 Mo. 312, Judge VALLIANT referred to the work of fraternal orders in caring for unfortunate members. (2) Suspension results ipso facto from non-payment of an assessment at the agreed time. Harvey v. Grand Lodge, 50 Mo.App. 472; Curtin v Grand Lodge, 65 Mo.App. 277; Lavin v. Grand Lodge, 104 Mo.App. 1-17. (3) No officer of a subordinate lodge has power to waive the positive requirements of the laws of the order. Harvey v. Grand Lodge, 50 Mo.App. 472; Lavin v. Grand Lodge, 104 Mo.App. 19; Borgraefe v. Knights of Honor, 22 Mo.App. 141; Kocher v. Supreme Council, 65 N. J. L. 649, 48 A. 544, 52 L. R. A. 861; Coughlin v. Knights of Columbus (Conn.), 64 A. 224. (4) It appearing from the uncontradicted evidence that Burke had abandoned the order, it was immaterial what the lodge had been in the habit of doing. Lavin v. Grand Lodge, 112 Mo.App. 1; Glardon v. Supreme Lodge, 50 Mo.App. 54; Sheridan v. Modern Woodmen (Wash.), 87 P. 127.

W. W. Calvin and W. S. Gabriel for respondent.

(1) William F. Burke did not abandon his membership in the defendant order. (2) The practice of appellant of accepting assessments, after the time provided by its by-laws, constitutes a waiver of the provision that failure to pay same when due operates as a suspension of the member ipso facto; and, this strict provision being waived, it became necessary for the lodge to give notice and take definite action in order to effect a suspension. Harvey v. Grand Lodge, A. O. U. W., 50 Mo.App. 472; McMahon v. Maccabees, 151 Mo. 537.

OPINION

JOHNSON, J.

Plaintiff, the widow of William F. Burke, deceased, brought this suit on a benefit certificate issued by defendant, a fraternal beneficiary society incorporated in this State. In 1897 Burke became a member of Summit Lodge No. 272 of said order at Kansas City and defendant issued to him the benefit certificate in suit, by the terms of which the grand lodge promised to pay plaintiff, the beneficiary, two thousand dollars on the death of the member, on condition "that said William F. Burke shall in every particular, while a member of said order, comply with all the rules, laws and requirements thereof now existing or hereafter enacted." Burke died December 28, 1905. Plaintiff contends that he was a member in good standing at the time of his death, while defendant claims, in its answer, that on account of failure to pay an assessment duly made and payable on November 28, 1905, Burke was suspended and forfeited the benefit certificate. Further, it is claimed by defendant that after said suspension and forfeiture, Burke voluntarily abandoned his membership in the order. The reply of plaintiff is a general denial. At the close of the evidence introduced by plaintiff, the court gave the jury a peremptory instruction to return a verdict for defendant. Plaintiff took a nonsuit with leave and, in due time, filed a motion to set it aside. One of the grounds of the motion was newly-discovered evidence. This ground was supported by affidavits. The court sustained the motion on this ground alone and defendant appealed.

It is argued by counsel for defendant that with the facts stated in these affidavits added to those adduced at the trial, plaintiff still has failed to show a right to recover on the certificate. In our statement, we shall treat the facts appearing for the first time in the affidavits as though they were supported by evidence introduced at the trial. We do this because no point is made, nor does it appear, that the plaintiff was not diligent in the discovery of the new evidence, or that it was merely cumulative.

The bill of exceptions recites that plaintiff "made out a prima-facie case by the admission of the benefit certificate, the death on December 29, 1905, of William Francis Burke" and that defendant then assumed the burden of proof. After defendant offered evidence in support of the affirmative defenses interposed by its answer, plaintiff introduced her evidence on the issues thus raised, after which the court instructed a verdict for defendant. In the application for membership, dated April 19, 1897, Burke agreed "that compliance on my part with all the laws, regulations and requirements which are, or may be hereafter enacted by said order, is the express condition upon which I am entitled to participate in the beneficiary fund and have and enjoy all the other benefits and privileges of said order."

It is admitted Burke was born November 17, 1857, and, therefore, was in his fortieth year when he became a member and received his certificate. The laws of the order required him to pay regular monthly assessments which, in 1905, were $ 3.50 each. Of this sum, fifty cents went to the local lodge for its expenses and $ 3 to the grand lodge on account of the "Guarantee Fund" out of which death benefits were paid. These fixed assessments were as regular as clockwork and were due and payable by the member on the 28th day of each month. They were payable to the financier of the local lodge who was charged with the duty of forwarding, at stated times, the portions due the grand lodge. Law 197 of the order provided: "A failure or neglect of any member to pay any assessment on or before the 28th day of the month in which the same is payable to the financier of his subordinate lodge, or to the Grand Recorder, as provided by law, shall work ipso facto a suspension and forfeiture of all rights under any beneficiary certificate issued to him to whomsoever the same may be payable, and no action on the part of the lodge or any officer thereof shall be required as essential to such suspension and forfeitures. Any member suspended or expelled from the order for any cause whatever, forfeits all claim to the beneficiary fund during suspension or expulsion."

It is admitted that Burke failed to pay the assessment due November 28, 1905, a month before his death, and that he was reported as suspended at the meeting of the local lodge on the night of December 7th, but plaintiff endeavors to avoid the forfeiture by showing that the right to claim it under the provisions of Law 197 was waived by defendant by reason of the practice of the local lodge, known to and acquiesced in by the managing officers of the grand lodge, of accepting payments of assessments long after they became due. The financier of Summit Lodge testified that Burke's assessments for March and April, 1905, were paid May 28th, those for July, August and September of that year were paid September 20th. Burke was not suspended for these delinquencies for the reason given by the witness that a member in good standing "stood up for him." In such cases, it was the practice of the local lodge to pay the assessments due the grand lodge out of its own funds and the member was not reported to the grand lodge as delinquent. We quote from the financier's testimony:

"We made a practice of carrying delinquent members without suspending them if a brother got up and stood good for them. The account of Mr. George Weissinger, page 11, shows that the dues for January, February and March, 1905 were paid August 28th. I do not know who stood good for him. There should have been somebody, I never carried anybody unless there was. I have no record as to who did it. On page 11 it shows that the dues of Mr. J. M. Wallace for March were paid April 5th. He was not suspended for March because he was carried. Brother Reed was up there and stood good for him. I was right there. The same party stood good for him for other months. It was not always some one who stood good, sometimes one and sometimes another. I never carried men unless someone stood good for them, they were suspended if no one would volunteer. By standing good, I mean they would pay for him and stood up for him, and not say that he was all right. I do not remember...