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

• Decision Date: 21 November 1910
• Docket Number: 14806
• Court: Mississippi Supreme Court
• Parties: INDEPENDENT ORDER OF SONS AND DAUGHTERS OF JACOB OF AMERICA v. AARON W. WILKES

53 So. 493

98 Miss. 179

INDEPENDENT ORDER OF SONS AND DAUGHTERS OF JACOB OF AMERICA v. AARON W. WILKES

No. 14806

Supreme Court of Mississippi

November 21, 1910

FROM the circuit court of Attala county, HON. GEORGE A. MCLEAN Judge.

Wilkes appellee, was plaintiff in the court below; the Independent order of Sons and Daughters of Jacob, appellant, was defendant there. The suit was for damages because of the alleged wrongful expulsion of plaintiff from the order. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts of the case are sufficiently stated in the opinion of the court.

Affirmed.

Latham & Atwood and Teat & Niles, for appellant.

It is well settled law that where appeals are amply provided for as in this case the appellee should have prosecuted his appeal from the order of expulsion in the subordinate lodge, and his failure to do so bars his right of recovery. Ward v Davis & Jonathan, 90 Miss. 116, 29 Cyc. 253.

The appellee admits that he was fined and never paid his fine, which fine should have been paid, if he had not accepted the expulsion as final. This was such a violation of his contract as to have forfeited his rights to participate in the funds of the order even upon his death.

The appellee treated his expulsion as final for more than one year's time. He was not expelled from the other lodge, the Royal House, but simply let his policy or contract lapse.

A. P. Dodd and L. Brame, for appellee.

Where a beneficial organization issues a death benefit certificate to one of its members entitling the beneficiary to a stated sum on the death of the member in good standing, upon condition of his paying certain stipulated assessments and complying with the by-laws and constitution of the order, the member has such an interest in the enforcement of the benefit certificate as entitles him to maintain an action to recover damages for its repudiation. O'Neal v. Supreme Council, 1 Am. and Eng. Ann. Cases 422.

It is denied that Wilkes did join the defendant order, and that defendant is a fraternal insurance association, the certificates it issues provide for the payment of certain dues and assessments, so does the ones sued upon. Admitting all of plaintiff's testimony as true, plaintiff was expelled without a trial and illegally.

OPINION

MAYES, C. J.

It is sufficient to say, so far as the facts of this case are concerned, that A. W. Wilkes joined the Independent Order of Sons and Daughters of Jacob of America some time in the year 1906. This order is a fraternal insurance organization, and membership in good standing is a condition precedent to insurance, and a continuation of the insurance after once joining and insuring compels a continuation of membership. When Wilkes joined, he became insured for two thousand dollars, and was paying the premiums on this policy at the date he was put out of the order. On March 30, 1908, Wilkes claims that he was willfully, capriciously, and unlawfully expelled from the order, resulting in a deprivation of all his rights as a member and the destruction of his contract rights under the insurance policy. Wilkes was expelled by a subordinate lodge, of which he was a member; and, although the laws of the order provide for appeals to the higher authorities of the order, he took no appeal, but instead sued the order for the unlawful expulsion, laying his damage at the sum of two thousand dollars.

There is some testimony going to show that Wilkes tried to take an appeal, but was frustrated in the attempt by certain officers of the order. We do not deem it material to consider the testimony on this line, since this is a suit for alleged wrong, and is not an effort to be reinstated to membership in the order. So far as this record discloses, there seems to be no purpose on the part of Wilkes to try to be reinstated in the order, nor does it disclose any desire on his part to continue membership therein. The jury settled all questions of disputed facts, and by its verdict found that Wilkes was unlawfully expelled, and fixed the amount of his damage at two hundred and twenty-five dollars. We are not warranted in disturbing this verdict, unless there is some error in the instructions of the court necessitating such a course.

It is argued to the court that Wilkes failed to prosecute an appeal from the order of the subordinate lodge expelling him, and because of this he was not entitled to maintain this suit. It is said that on this point the trial court gave two instructions, one for Wilkes and one for the order, that are in hopeless conflict, and must result in a reversal of the case. It is argued that the court instructed the jury on behalf of Wilkes, and in instruction No. 3 told them that, if they believe from the evidence that the expulsion of Wilkes was illegal, this alone would constitute a breach of the insurance and entitle him to recover. And yet, by instruction No. 8, given for the order, the court tells the jury that although they may believe from the evidence that Wilkes was illegally expelled, still if they further believe from the evidence that he failed to prosecute an appeal, as provided by the laws of the order, and failed to exhaust his remedies within the order before resorting to the courts for relief they should find for defendant. These two instructions are in hopeless conflict; but instruction No. 3, given for Wilkes, is correct, while...