Howton v. Sovereign Camp Woodmen of the World

• Decision Date: 29 January 1915
• Citation: 172 S.W. 687,162 Ky. 432
• Parties: HOWTON ET AL. v. SOVEREIGN CAMP WOODMEN OF THE WORLD.
• Court: Kentucky Court of Appeals

172 S.W. 687

162 Ky. 432

HOWTON ET AL. v. SOVEREIGN CAMP WOODMEN OF THE WORLD.

Court of Appeals of Kentucky.

January 29, 1915

Appeal from Circuit Court, Hopkins County.

Action by Willie Howton and Allie Howton, an infant, by her next friend, Peter Howton, against the Sovereign Camp Woodmen of the World. Judgment for defendant, and plaintiffs appeal. Affirmed.

Teague & Franklin, of Madisonville, for appellants.

Yost &amp Laffoon, of Madisonville, for appellee.

SETTLE J.

The appellee, Sovereign Camp Woodmen of the World, is a fraternal benefit society, incorporated under the laws of the state of Nebraska. It issues benefit certificates, conducts an insurance business among its members, and has under its jurisdiction various local camps; one of these, known as Pine Grove Camp No. 160, being located at Dalton, Ky. Appellee issued to Ben Howton, a member of Pine Grove Camp No. 160, a beneficiary certificate dated February 24, 1910, but not to become effective until March 12, 1910, whereby it agreed to pay to Willie Howton and Allie Howton, brother and sister of Ben Howton, at the death of the latter, $500 as a death benefit should his death occur during the first year of his membership and while he was a member of the order in good standing. Ben Howton died December 1, 1910, and appellee having refused to pay to the beneficiaries named therein Willie Howton and Allie Howton, the death benefit of $500 they brought this action in the Hopkins circuit court; the latter, an infant, suing by Peter Howton, her next friend, to recover the same. By its answer appellee interposed the defense that the insured, Ben Howton, was not a member of the order at the time of his death, but was then under suspension for nonpayment of an assessment designated as No. 240, which suspension occurred October 1, 1910, and caused a forfeiture of his certificate of insurance; that he was never reinstated before his death, for which reasons the certificate imposed no liability upon appellee for the death benefit claimed by the beneficiaries. The trial of the case resulted in a verdict for appellee, and from the judgment entered thereon the beneficiaries named in the policy have appealed.

It appears from the evidence that Ben Howton became sick and called in a physician on the 27th day of November, 1910, and that on the 28th day of November, 1910, he sent to the clerk of his camp all assessments and dues then in arrears and owing by him. One of these assessments was No. 240, for the failure to pay which on October 1st his suspension as a member of the order had resulted, and the other was assessment No. 241, which became due November 1, 1910. He did not, however, as required by the constitution and by-laws of the order, accompany the payment thus attempted to be made with a written statement and warranty, signed by himself and witnessed, showing that he was then in good health. On December 1, 1910, he was operated on for appendicitis and died two hours after the operation was performed. The moneys which had been sent by him to the clerk of his camp were forwarded by the latter to the Sovereign Clerk of the Sovereign Camp on the 3d day of December, 1910, two days after Howton's death, and were received by the latter without knowledge of his death; but he returned them to the clerk of Howton's camp with the direction that they be returned to Howton. This action of the clerk of the Sovereign Camp was taken because of the failure of Howton to deliver to the clerk of his camp, with the payment of the moneys, the written statement and warranty, signed by himself and witnessed, that he was in good health at the time he paid the assessments in arrears, and it appears from the testimony of the clerk of the local camp and other witnesses that Howton was sick when he sent to him the money in payment of the assessments in arrears.

Sections 108 and 109 of the constitution of the Sovereign Camp, which were made a part of the certificate of insurance, are as follows:

"Section 108. On or about the 20th day of each month the Sovereign Commander and chairman of the Sovereign Finance Committee shall determine the number of assessments, if any, necessary to provide for the payment of death benefits, monuments and total disability claims, and shall so notify the Sovereign Clerk."

"Section 109. (a) Every member of this order shall pay to the clerk of his camp each month one assessment payment, as required in section 56, which shall be credited to and known as 'Sovereign Camp Fund,' and he shall also pay such camp dues as may be required by the by-laws of his camp. He shall pay any additional assessments for the Sovereign Camp fund and camp dues, or either which may be legally called. (b) If he fails to make any such payment on or before the 1st day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void."

Assessments Nos. 240, 241, and also 242 were regular assessments as provided in sections 108 and 109 of the constitution, supra, 240 being due October 1st, 241 November 1st, and 242 December 1st, 1910. So assessments 240 and 241 were past due, and therefore in arrears, when paid by Howton November 28th. The failure to pay assessment 240 on October 1, 1910, under the provisions of subsection "b," section 109, supra, automatically suspended Howton from membership in the order, and by a further provision of the same subsection his beneficiary certificate thereby became void and continued so during such suspension.

Section 115 of the constitution provides:

"(a) Should a suspended member pay all arrearages and dues to the clerk of his camp within ten days from the date of his suspension, and if in good health and not addicted to the excessive use of intoxicants or narcotics, he shall be restored to membership and his beneficiary certificate again become valid. (b) After the expiration of ten days and within three months from the date of suspension of a suspended member to reinstate he must pay to the clerk of his camp all arrearages and dues and deliver to him a written statement and warranty

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