Independent Order of Sons and Daughters of Jacob of America v. Enoch

• Decision Date: 14 December 1914
• Docket Number: 16809
• Citation: 108 Miss. 302,66 So. 744
• Court: Mississippi Supreme Court
• Parties: INDEPENDANT ORDER OF SONS AND DAUGHTERS OF JACOB OF AMERICA v. ENOCH et al

66 So. 744

108 Miss. 302

INDEPENDANT ORDER OF SONS AND DAUGHTERS OF JACOB OF AMERICA v. ENOCH et al

No. 16809

Supreme Court of Mississippi

December 14, 1914

APPEAL from the chancery court of Madison county. HON. P. Z. JONES Chancellor.

Suit by Mollie Enoch and others against the Independent Order of the Sons and Daughters of Jacob of America. From a decree for complainant, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Latham & Latham, for appellant.

The complainants offer as an excuse for the failure of Annie Rankin to pay the assessments required of her by the terms of her contract, the fact that she was sick and unable to pay them. Sickness and poverty are no legal excuses for not paying unless she was excused from paying her assessments while sick by the laws of the order and the terms of her contract. The laws of the order and the contract of hers do not make sickness any excuse for not paying assessments, but on the other hand requires prompt payment every month.

For long years prior to the membership of Annie Rankin and up to the date of her death, it was the law of the order and a part of her contract with the order, that "No lodge shall have any fixed allowance for any period of sickness of a member. If any member is allowed a sick benefit, it shall be done by a vote by ballot as to each allowance." See also, sec. 2, art. 4, page 32, Laws of 1901, and secs. 1 and 2, art. page 47, Laws of 1906.

This court has upheld the provisions of the laws of the order on the subject of "sick benefits" in an identical case with the one at bar, being Independent Order of Sons and Daughters of Jacob v. Moncrief, 96 Miss. 419. In that case the member had failed to pay the required assessment for about six months, during which time she was sick and unable to pay them. The court said: "The excuse offered in the bill for nonpayment of dues is that Adeline Moncrief was sick, and that it was the duty of the lodge to pay the dues out of this sick benefit, sending to the sick member only the surplus after retaining all dues that might be owing; but when the constitution and by-laws are examined, it will be seen that the order does not agree to pay to all parties who are sick, a benefit. The lodge can provide a sick benefit for a sick member, but the lodge does not agree absolutely, to allow every sick member a benefit; but a member becomes entitled to a benefit on two conditions, namely; that he is sick; and, second, after he is sick, the lodge takes further action and votes the member an allowance. The lodge had made no allowance in this case, and it is expressly so alleged in the bill, and until the allowance had been made, there was no obligation on the part of the lodge to pay anything."

We respectfully submit the foregoing brief and expect a reversal of the decree of the court below and a decree here for the appellant.

S.E. Garner, for appellee.

In the Murphy case, 77 Miss. 830, this court laid down the doctrine that in considering the by-laws and contracts of benefit associations, a liberal construction must be put on them, so as to prevent a forfeiture if possible. This court followed that rule in the Hoskin case, 56 So. 169. Now, with this rule of construction in mind, let us consider section 1, article 4, of appellant's Laws of 1901, page 39, of the record in this case, which reads as follows: "Every lodge may care and provide for its sick members who are financial and needy. If an assessment monthly dues or taxation is due of a member who is sick and receiving aid from his or her lodge, the scribe shall deduct the same from the amount given to said member and the sick committees shall notify the sick members of same." The court has said that this law must be construed liberally in favor of the assured and in a way to prevent a forfeiture if possible. Then we take it that this law means that when a member that is financial becomes sick and notifies the lodge of same it then becomes the duty of the lodge to make the allowance and if an assessment is then due or becomes due to apply it to the assessments and give the member the balance. Surely, in this way a forfeiture can be prevented. Under a liberal construction of this law, if no allowance had ever been allowed to Annie Rankin, when she notified the lodge that she was sick, being then financial, she was entitled to an allowance and her heirs would be entitled to recover on this contract. But we have shown that an allowance had been made to Annie by the local lodge, which brings Annie within the rule in the Moncrief case which is the most strict construction that could have been put on the law in that case. Surely Annie Rankin, was receiving aid from the lodge and that is what the law says "Receiving aid from his or her lodge."

In another desperate struggle for life, counsel for appellant have tried to ring in the Smith case as having some bearing on this case. But a careful reading of the Smith case will show that it was decided on the question of knowledge of the principal as to the unlawful acts of its...