Day v. Supreme Forest, Woodmen Circle

• Decision Date: 06 May 1913
• Citation: 174 Mo. App. 260,156 S.W. 721
• Parties: DAY et al. v. SUPREME FOREST, WOODMEN CIRCLE.
• Court: Missouri Court of Appeals

156 S.W. 721

174 Mo. App. 260

DAY et al. v. SUPREME FOREST, WOODMEN CIRCLE.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

Rehearing Denied May 20, 1913.

1. INSURANCE (§ 750) — MUTUAL BENEFIT SOCIETY — FORFEITURE — ASSESSMENTS — FAILURE TO PAY.

The constitution and by-laws of a mutual benefit society provided that, if the member failed to pay monthly assessments on or before the last day of the month, he should stand suspended, and during suspension the certificate should be void, and that the member could be reinstated within three months by paying arrearages and filing a certificate of good health. Held, that nonpayment of assessments for two months after notice ipso facto forfeited the member's rights under the certificate, and, she not having been reinstated before death, no recovery could be had thereon.

2. INSURANCE (§ 755) — MUTUAL BENEFIT INSURANCE — BY-LAWS — KNOWLEDGE OF MEMBERS — PRESUMPTION.

A member of a mutual benefit association is conclusively presumed to know the provisions of its constitution and by-laws, one of which provided that the secretary of a subordinate lodge had no power to accept any payment, save on compliance by the member with certain prescribed rules, and was not entitled to claim that the secretary of a subordinate lodge, in receiving assessments not in compliance with such rules, represented the association, and not the member.

3. INSURANCE (§ 755) — MUTUAL BENEFIT SOCIETY — SUSPENDED MEMBERS — PAYMENTS — ACCEPTANCE BY SECRETARY OF SUBORDINATE BODY.

Where the secretary of a subordinate body of a mutual benefit association, without authority, accepted payments from the husband of a suspended member on his bare statement that his wife was then "all right," when in fact she was then suffering from an illness from which she shortly thereafter died, such acceptance did not constitute evidence of a waiver of the member's suspension for nonpayment of assessments.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by William Arthur Day and others against the Supreme Forest, Woodmen Circle. Judgment for plaintiffs, and defendant appeals. Reversed.

Henry B. Davis, of St. Louis, for appellant. James J. O'Donohoe, of St. Louis, for respondents.

REYNOLDS, P. J.

Plaintiffs, sons of Martha C. Kirkland and as such named as beneficiaries in a certificate issued to Mrs. Kirkland, bring this action to recover $500, the amount contracted to be paid in case of the death of the member while in good standing as a member of the fraternity, if the death occurred within two years after the issuance of the certificate, the member having died within two years, and for the additional sum of $100 for a monument.

The answer, setting out the constitution, laws, etc., of the order, avers that Martha C. Kirkland was suspended for non-payment of the assessment and dues for the month of June, 1909, within that month.

Denying suspension, the reply pleaded a waiver by defendant of the prompt payment of assessments and dues and alleged that they had been paid and that the suspension was void.

The petition demanded judgment for $600, with interest at the rate of 6 per cent. per annum, as also 10 per cent. on the $600 as damages and a reasonable attorney's fee for vexatious refusal to pay the amount of the certificate. At the trial before the court and a jury there was a verdict for plaintiffs for $636, being the principal debt and interest for one year. Judgment followed, from which, after interposing a motion for new trial and excepting to that being overruled, defendant duly perfected its appeal to this court.

The defendant is an ordinary fraternal beneficiary association, incorporated under the laws of the state of Nebraska, duly authorized to transact business as such in this state. Mrs. Kirkland was a member of what is known as Grove No. 56, State of Missouri, a subordinate lodge or "Grove," as it is called, of the "Supreme Forest," as the governing body is called. It appears by the evidence in the case that about the 25th of July, 1909, the husband of Mrs. Kirkland went to the clerk or secretary of this Grove and tendered him the assessments and dues for the months of May, June and July, 1908. The secretary asked him how his wife was. He answered that she was "all right." Whereupon the secretary took the money and gave the husband receipts for the three assessments. It appears that the secretary had himself paid the May dues and assessments. Retaining that out of the moneys paid him by Mr. Kirkland, he transmitted that for June and July to Omaha, Nebraska, to the governing body of the order. He appears to have done this about the 10th of August, 1909, accompanying them with the statement that Mrs. Kirkland had died in the meantime and that she was under suspension for non-payment of the June dues and assessments. The supreme body thereupon returned all the money to the secretary, who, before the institution of this suit, tendered it to the beneficiaries, the two sons of Mrs. Kirkland, first in person and then by registered mail. The tender, however, was rejected.

Mrs. Kirkland died about the 4th of August, 1909. It appears that she was taken sick some time in July of that year, exactly when does not appear, but it does appear that on the 23d of July, her physician commenced attendance on her and continued in attendance until she died. It clearly appears that when, on July 25th, her husband told the secretary that she was "all right," she was in fact then under the care of her physician.

Among the conditions of membership contained in the application which was signed by Mrs. Kirkland when she became a member was this: "I agree to pay all assessments and dues for which I may become liable while a member of the order, as required by its constitution and by-laws." It was set out in the beneficiary certificate that it was issued and accepted subject to all the conditions on the back thereof and subject to all the laws, rules and regulations of the fraternity, and that it should be null and void if the member did not comply with all such conditions and with all the laws, rules and regulations of the Supreme Forest. Another provision of the order was that every member, unless otherwise notified by the clerk of his or her Grove, should pay to the clerk every month one assessment in the beneficiary fund, together with one monthly payment of the Supreme Forest dues, as levied, without notice, "and if he or she fails to pay either on or before the last day of the month, the member shall stand suspended and during such suspension his or her beneficiary certificate shall be void." A further provision was that the knowledge of any officer or any of the members of the Grove that the member had violated any of the provisions of the laws or the receipt by his or her Grove of the payments of assessments and dues, or payment by him or her of the same, "shall not in any manner make the Supreme Forest liable on his or her certificate when by these laws his or her...