Ellerbe v. Faust

• Decision Date: 13 February 1894
• Citation: 119 Mo. 653,25 S.W. 390
• Parties: ELLERBE v. FAUST.
• Court: Missouri Supreme Court

25 S.W. 390

119 Mo. 653

ELLERBE v. FAUST.

Supreme Court of Missouri.

February 13, 1894.

MUTUAL BENEFIT INSURANCE — MEMBERSHIP — ASSESSMENTS — BY-LAWS — EXPULSION — ESTOPPEL.

1. A by-law of a Masonic mutual benefit society, passed in view of a by-law of the Masonic lodges excluding saloon keepers from the privileges of the lodges, and providing that any member becoming a saloon keeper shall forfeit his membership in the society, applies to those who are and continue, as well as to those who become, saloon keepers after its passage.

2. Where a by-law of such society provides that any member expelled from the Masonic lodge to which he belongs shall forfeit his membership in the society, such membership is forfeited by his being debarred, against his will, of the privileges of his lodge, though not, in form, expelled therefrom.

3. The fact that the officers of a mutual benefit society received assessments from a member after the passage of a by-law expelling him therefrom will not estop him from disavowing his membership when sued for assessments made after those paid.

In banc. Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by C. P. Ellerbe, as superintendent of the insurance department of the state of Missouri, against Anthony E. Faust. From a judgment for defendant, plaintiff appeals. Affirmed.

Jas. E. Hereford and M. W. Huff, for appellant. Rufus J. Delano, for respondent.

MARTIN, Special Judge.

The facts in this case are substantially like the facts in the case of Ellerbe v. Barney, 25 S. W. 384, with one exception. That exception includes some facts which tended to show that the respondent was not a member of the Masonic Mutual Benefit Association at the date of the assessments, for the collection of which this suit was brought. The court below held that he was not a member of that date, and entered judgment in his favor, from which the superintendent of insurance has appealed.

A clause in the constitution or charter of the association, as it existed in 1883, when the respondent became a member, provides that "a requisite qualification for membership shall be that the applicant be a Mason of good standing." The association was established for the benefit of Masons and their families. Another clause in the constitution or charter gave the board of directors power to make and amend by-laws relating to the forfeiture of membership, declaring the effect thereof, and the manner in which the same should be brought about. In October, 1888, the Grand Lodge of Free and Accepted Masons of Missouri, including the subordinate lodge of said order, to which the respondent belonged, passed a resolution barring and denying saloon keepers (including the respondent, who was and continued to be a saloon keeper) from the membership and privileges of said order of Masons. The respondent, upon receiving notice of this action, acquiesced in it, and withdrew from his lodge, and thereafter ceased to be a Mason in good standing. In October, 1890, the Masonic Benefit Association, to which respondent also belonged, as already stated, desiring to comply with the spirit and intent of the order of the grand lodge, passed a by-law to the effect that, if any of its members should become a saloon keeper or bar keeper, he should forfeit his membership in the same, and all benefits therein, and his certificate of membership should thereby, ipso facto, become null and void. The by-law went further, and provided that a failure to give notice of the adoption of the by-law should have no effect on the forfeiture. It also declared it to be unlawful to pay any benefits under any such certificate, irrespective of any knowledge of the association, prior to the member's death, of the fact of forfeiture, or of the receipt of assessments after forfeiture. It also forbade the officers of the association, the executive committee, and the board of directors to receive any assessments from any member after notice of the existence of the facts constituting an ipso facto forfeiture of his membership. Another by-law, or section of a by-law, provided that an "expulsion from his lodge shall, ipso facto, work a forfeiture of membership in this association." The manifest intention of this action of the association was to keep...