Henton v. Sovereign Camp Woodmen of World

• Decision Date: 26 September 1910
• Docket Number: 16,124
• Citation: 127 N.W. 869,87 Neb. 552
• Parties: STELLA HENTON ET AL., APPELLEES, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, APPELLANT
• Court: Nebraska Supreme Court

127 N.W. 869

87 Neb. 552

STELLA HENTON ET AL., APPELLEES, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, APPELLANT

No. 16,124

Supreme Court of Nebraska

September 26, 1910

APPEAL from the district court for Cass county: HARVEY D. TRAVIS JUDGE. Affirmed.

AFFIRMED.

Arthur H. Burnett, Matthew Gering and A. G. Ellick, for appellant.

A. L Tidd, contra.

ROSE J. ROOT, J., not sitting.

OPINION

ROSE, J.

This is a suit on a fraternal beneficiary certificate issued May 7, 1906, by defendant to W. E. Henton, who died March 7, 1907. Plaintiffs are his widow and orphans. They were named as beneficiaries in his certificate, which, if enforceable, obligates defendant to pay them $ 750 and to expend $ 100 for a monument at assured's grave. Plaintiffs recovered judgment for the full amount of their claim, and defendant has appealed.

The Sovereign Camp of the Woodmen of the World is in Omaha. Assured was a member of the local or subordinate camp at Plattsmouth. To retain his membership and keep his insurance in force he was required to pay monthly assessments of $ 2.15 each. The assessment for each month was payable on or before the first day of the month following. For failure of a member to make payment within that time, a by-law provides that "he shall stand suspended, and during such suspension his beneficiary certificate shall be void." It is admitted in the answer that the insurance was in force during January, 1907, though the proofs do not show the payment of the assessments for December, 1906, and January, 1907, until the latter part of February. There is evidence to sustain a finding that those assessments were paid to the clerk of the local camp about ten days before the death of assured, and that on March 7, 1907, before his death, the February assessment was also paid to the clerk. The December and January assessments were paid by a son of assured after the latter had been suspended for nonpayment of the January assessment. Assured's brother-in-law paid the February assessment by check.

Defendant denies liability on the ground that assured, after he had been suspended, was never reinstated. This defense is based on the following propositions: Assured was presumed to know the laws of the association and the limitations they impose upon officers and members of the local camp. He had been suspended more than ten days when the January assessment was paid. Thereafter he could only be reinstated by paying all arrearages and complying with a by-law which required him to deliver to the clerk a signed statement that he was in good health. Such a certificate was never furnished. When the arrearages were paid defendant was afflicted with the malady which resulted in his death, and for that reason he could not be reinstated. The local officers had no authority to waive the health certificate or other requirements of the by-laws. The points of law involved in the position taken by defendant are ably argued. It is contended that in accepting the payments, after assured had been delinquent more than ten days, the clerk of the local camp was the agent of assured. In addition to its constitution and by-laws defendant relies on the following language, which is copied from the clerk's receipt: "If any part of the above amount is paid for the purpose of reinstating the sovereign so paying, it is received upon the condition and agreement that I receive and hold the same in trust for him pending the necessary action upon his application for reinstatement, and that he has no claim upon the order until such application is accepted in accordance with the constitution and laws. If such application is not accepted, the above sum to be refunded."

The evidence tends to show these facts: Assured's suspension and reinstatement were entered on the records of the local camp and reported to the sovereign camp. Afterward the latter received and audited the payments of the December and January assessments, and no effort was made to return them until April, 1907. The delinquent payments were returned by defendant to the local clerk, but he did not tender them back to plaintiffs, and they were never refunded, though there is in the record an offer by defendant to return them. Nothing was said about the health certificate when the clerk collected the arrearages, and no request for it was ever made. Fraud on the part of assured is not shown. The clerk knew of assured's illness, and had previously reported the fact to the local camp at a regular meeting. Before the February assessment was paid inquiry was made of the clerk as to assured's standing, and he replied: "He owes one assessment and had better pay it."

Under these...