Daniher v. Grand Lodge Ancient Order of United Workmen, Jurisdiction of Nevada

• Decision Date: 04 June 1894
• Docket Number: 380
• Citation: 37 P. 245,10 Utah 110
• Court: Utah Supreme Court
• Parties: DENNIS DANIHER, RESPONDENT, v. THE GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN, JURISDICTION OF NEVADA, AND OTHERS, APPELLANTS. [1]

37 P. 245

10 Utah 110

DENNIS DANIHER, RESPONDENT, v. THE GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN, JURISDICTION OF NEVADA, AND OTHERS, APPELLANTS. ^[1]

No. 380

Supreme Court of Utah

June 4, 1894

APPEAL from the district court of the fourth judicial district, Hon James A. Miner, Judge.

Action by Dennis Daniher against the Grand Lodge Ancient Order of United Workmen, Jurisdiction of Nevada, and all individual members of all lodges within said jurisdiction subordinate to and under the control of said Grand Lodge A. O. U. W. of Nevada, including D. Thorburn and N. M. Ruick. From a judgment for plaintiff, defendants appeal.

Affirmed.

Mr. N M. Ruick, Mr. J. W. Kinsley and Mr. J. H. MacMillan, for appellants.

The case was tried upon an agreed statement of facts without qualification, which has the force and effect of a special verdict and no judgment should be pronounced inconsistent therewith. 1 Green. Ev. 186, 205; Gillett v Detroit, 9 N.W. R. 428; Hartman v. Smith, 14 P. 648; Van Horn v. R. R., 28 N.W. R. 547; Hess v. Bolinger, 38 Cal. 352. Courts will only review the acts of an unincorporated society to the extent of seeing that they obey their own laws. Canfield v. Maccabees, 49 N.W. R. 875; Van Pouch v. The Society, 29 N.W. R. 865; Woolsey v. I. O. O. F., 16 N.W. R. 576; Rood v. Rwy. Pas. Ass'n, 31 F. 62; Chosen v. Forsinger, 25 N. E. 130; Laford v. Deen, 81 N.Y. 515; Davis v. Life Ass'n, 11 F. 781; Supreme Council v. Curd, 111 Ill. 284; Mederia v. Merchants' Ex. Mut. Ben. Soc., 16 F. 749; Hockshaw v. Supreme Lodge, 29 F. 770; Hoffman v. Supreme Council, 35 F. 252; Borgrave v. Supreme Lodge, 22 Mo.App. 127; Benevolent Ass'n v. Baldwin, 86 Ill. 479; McAlles v. Supreme Lodge, 13 A. 755. Daniher was suspended by force of the constitution and by-laws without any act of the lodge whatever. He did none of the three things required to restore him. First--Payment of the assessments upon which he was suspended. Second--Payment of all current assessments. Third--Application to the lodge for reinstatement, and an affirmative vote of the lodge reinstating. Forse v. Supreme Lodge, 41 Mo.App. 114; Borgrave v. Knights of Honor, 22 Mo.App. 141; Stewart v. Supreme Council, 36 Mo.App. 319; Rood v. Ry. Pas. Ass'n, 31 F. 62; Bac. Ben. Soc. § 285. Under the case as tried a party cannot claim under a plea of full specific performance, such performance to work a waiver. Gartside v. Conn. Mut. Life Ins. Co., 43 Am. Rep. 765; McCune v. Norwich City Gas Co., 79 Am. Dec. 278; Texas Bank v. Hutchins, 37 Am. Rep. 750; Merchants' Mut. Ins. Co., v. LaCroix, 14 Am. Rep. 370; Continental Life Ins. Co. v. Hauser, 89 Ind. 258; Edgerly v. Fireman's Ins. Co., 43 Ia. 587; Graham v. Phoenix Ins. Co., 77 N.Y. 171; McMurry v. Knights of Honor, 20 F. 107; Bogardus v. N.Y. Life Ins. Co., 101 N.Y. 328; Preston v. Travelers' Ins. Co., 58 N. A. 76; Miller v. Hillsborough, 47 N. J. Law, 393.

Mr. Mathew Gering and Mr. W. R. White, for respondent.

This entire controversy must be determined upon the proposition as to whether or not there was a contract of insurance between the deceased and the appellants at the time of the death. The lodge had a right to suspend Daniher for the failure to pay the assessments due October 28th, and thereby declare him a non-member, yet the acceptance of assessment due on October 30th was a waiver of the forfeiture, and appellants are estopped from insisting upon such suspension. Millard v. Sup. Council L. of H., 22 P. 864; Stylow v. O. F. Mut. Ins. Co., 34 N.W. R. 152; Erdmann v. Mut. Ins. Co., 44 Wis. 376; Schuvek v. Gegenseitiger Soc., 44 Wis. 369; Matt v. R. C. Mut. Pro. Soc. of Ia., 30 N.W. R. 799; Rice v. New Eng. Mut. Aid Soc., 15 N. E. 624; Roswell v. Eq. Aid Union, 13 F. 840; Bloom. Mut. L. B. Ass'n v. Blue, 11 N. E. 331; Tobin v. Wes. Mut. Aid Soc., 33 N.W. R. 664; Monson v. Gd. L. A. O. U. W., 16 N.W. R. 395; Cotton St. Life Ins. Co. v. Lester, 35 Am. Rep. 122; Met. S. F. A. Ass'n v. Windover, 27 N. E. 538; U. B. Mut. Aid. Soc. v. Schwartz, 13 Atlantic Rep.; McDonald v. Sup. Coun. O. of C. F., 20 P. 41; Ill. Mas. Ben. Soc. v. Baldwin, 86 Ill. 479; Hoffman v. Supreme Coun. L. of H., 35 F. 252. The sending to the insured of a notice of assessment, after the right to declare a forfeiture upon a prior assessment had attached is a waiver of the forfeiture. Mut. Pro. Life Ins. Co. v. Laury, 84 Penn. St. 43; Elmondorph v. Mut. Fire Ins. Co., 51 N.W. R. 926; Elmer v. Mut. Ben. Life Ass'n, 19 N.Y.S. 269; Farmers' Mut. R. Ass'n v. Koontz, 30 N. E. 145. If Daniher withdrew in good standing, as reported, there could not have been a suspension. If he was suspended, appellants are estopped by their conduct in insisting upon a forfeiture. Acceptance by the Grand Lodge of an over-due assessment with knowledge, is not only a ratification but also an express waiver of the right to insist upon forfeiture. Perine v. Gd. L. A. O. U. W., 50 N.W. R. 1022; Met. S. F. A. Ass'n v. Windover, 27 N. E. 538.

The November assessments of which deceased had been notified, were not delinquent until the 28th of that month, before which time death occurred, which relieved him from payment. G. L. Ill. Ind. Mut. Aid v. Besterfield, 37 Ill.App. 522; Elmer v. Mut. Ben. Life Ass'n, 19 N.Y.S. 269. Daniher did not withdraw by delivering his certificate to an officer of a subordinate lodge which was never acted upon nor accepted by the lodge. Regent v. Williams, 31 Am. Dec. 104, 105; The State, ex rel, v. Benker, 56 Mo. 17; Burling v. Willis, 21 Am. Rep. 338, The State, ex rel, v. Brown, 22 Ohio St. 615; Whitney v. Nat. Mas. Acc. Ass'n, 54 N.W. R. 184; Marten v. Mfgr. Acc. Ins. Co., 15 N.Y.S. 309; Schroeder v. Far. Mut. Ins. Co., 49 N.W. R. 536. Proof of death was waived by disclaiming liability under the contract. Bacon on Ben. Soc. § 413 and cases cited; Lazensky v. Sup. Lodge K. of H., 31 F. 592; Millard v. Sup. Coun. L. of H., 22 P. 864; Williams v. Hartford Ins. Co., 54 Cal. 442; Covenant Mut. Ben. Ass'n v. Spies, 114 Ills. 463; Knickerbocker Life Ins. Co. v. Pend., 112 U.S. 696; Homes Ins. Co. v. Balt. W. Co., 93 U.S. 546; Kan. Pro. Union v. Whitt, 14 P. 275; Bacon on Mut. Ben. Soc. § 409; Payn v. Mut. Rel. Soc., 6 N. P. St. R. 365. By-laws affecting property rights which require submission to arbitration in futuro, are void, since it is an usurpation of judicial power and an abridgment of the constitutional right to resort to the courts for the redress of a wrong. Bacon on Ben. Soc. § 123; Whitney v. Nat. Mas. Acc. Ass'n, 54 N.W. R. 184; Austin v. Searing, 69 Am. Dec. 665 and notes; Sutro Tunnel Co. v. Segregated Co., 7 P. 271; Crossley v. Conn. Fire Ins. Co., 27 F. 30; Allegre v. Md. Ins. Co., 14 Am. Dec. 289 and notes; Bauer v. Samp. Lodge, 102 Ind. 262; Sub. Coun. C. F. v. Garrigan, 3 N. E. 818 and notes; Bauer v. Thompson Lodge K. P., 1 N. E. 571; Thompson v. Ins. Co., 104 U.S. 252; Gere v. Council Bl. Ins. Co., 23 N.W. R. 137; Nurney v. Fire Fund, 30 N.W. R. 355; Kinney v. Rel. Dept. B. & O., 34 Cent. Law J. 134.

BARTCH, J. MERRITT, C. J., concurs.

OPINION

BARTCH, J.

: The plaintiff brought this action to recover $ 2,000, the amount of a beneficiary certificate issued by the defendants to Jerry T. Daniher, who designated the plaintiff, his father, as his beneficiary, to whom payment should be made after his death. Jerry T. Daniher died November 18, 1888, and thereafter demand was made and payment refused. Upon the trial of the cause the court entered judgment in favor of the plaintiff, and thereupon the defendants appealed.

The first material question to be determined is whether there existed, between the deceased and the appellants, a contract of insurance, which includes the question whether the Ancient Order of United Workmen is in any sense to be classed as a mutual life insurance company. It is shown by the record that the association is a voluntary, unincorporated, beneficial and benevolent society. Under its constitution and by-laws, it is designed to promote the welfare of its members and protect those dependent upon them. One, if not its principal, object is to provide for the payment of a stipulated sum to the beneficiaries of its deceased members. Its governing bodies consist of a supreme lodge, of grand lodges, and of subordinate lodges. It is the province of the supreme lodge to prescribe and determine the rights, privileges, and duties of the members of the society and of the beneficiaries of deceased members. Grand lodges are organized and exist under its authority, and subject to the constitution and general laws of the order, in such countries, states, territories, and districts as the supreme lodge may determine. A grand lodge has original jurisdiction, within its territory, over all matters pertaining to the welfare of the order, and, for the government of itself and its subordinate lodges, may adopt constitutions, by-laws, rules, and regulations, and may alter and amend the same. It exercises control and supervision over the subordinate lodges within its jurisdiction. The defendant grand lodge, jurisdiction of Nevada, has control over and supervision of all the subordinate lodges in the states of Nevada, Idaho, Wyoming, Montana, and in the territory of Utah.

Under the constitution and by-laws of the order, there is established a beneficiary fund for the benefit of all members in good standing, and each member who complies with the rules and regulations of the order is entitled to a benefit certificate in the sum of $ 2,000, payable, at the death of the member, to the person designated by him as his beneficiary. These certificates are issued by virtue of the power vested in the grand lodge, in the nature of mutual benefit insurance, of which the members of the order may avail themselves. The beneficiary fund is maintained by assessments upon...