Jenkins v. The Ancient Order of United Workmen of Kansas

• Decision Date: 14 November 1914
• Docket Number: 18,976
• Parties: LILLIE JENKINS, Appellee, v. THE ANCIENT ORDER OF UNITED WORKMEN OF KANSAS, Appellant
• Court: Kansas Supreme Court

144 P. 223

93 Kan. 324

LILLIE JENKINS, Appellee, v. THE ANCIENT ORDER OF UNITED WORKMEN OF KANSAS, Appellant

No. 18,976

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. FRATERNAL INSURANCE -- Nonpayment of Dues -- Suspension--No Waiver of Forfeiture. Under the by-laws of a fraternal benefit order the failure of a member to pay dues and assessments at fixed times operates as a suspension of the member, and if he dies during such suspension his beneficiary is not entitled to share in the beneficiary fund. Another provision is that a member may be reinstated by paying the delinquent dues and assessments and upon an affirmative vote of the local lodge. A member of the order failed to pay an assessment when it was due, but thirteen days later sent a check, which was delayed in transmission and was received by the officer of the order nineteen days after suspension and on the same day that the member died. No action towards reinstatement was ever taken by the lodge. The officer at once returned the check. There had been a number of prior defaults and suspensions of the member, and in each case he was reinstated upon the payment of the delinquent dues and assessments but never unless a majority of those present at a regular meeting of the lodge voted in favor of reinstatement. Held, that under the by-laws of the order and the terms of the contract with the member payment of dues and assessments and an affirmative vote of the lodge are both essential to a reinstatement and that the member was legally suspended at the time of his death. Held, further, that the fact that there had been reinstatements after former defaults of the member did not operate as a waiver of the contract relating to defaults and suspensions nor relieve the member from the last suspension resulting from his delinquency.

2. SAME. The evidence examined relating to the payments of dues and assessments by the member, including what is termed an advance payment, and it is held that he was in default and under suspension at the time of his death.

Edgar Bennett, of Washington, for the appellant.

William F. Sapp, Andrew S. Wilson, both of Galena, and J. W. McAntire, of Joplin, Mo., for the appellee.

OPINION

JOHNSTON, C. J.

This was an action by the appellee, Lillie Jenkins, to recover $ 2000 and interest on a beneficiary certificate issued on the life of her husband, William F. Jenkins, by the appellant, The Ancient Order of United Workmen of Kansas. Jenkins, it appears, became a member of subordinate lodge number nine, located at Galena, in February, 1899. It appears that he had paid all assessments made by the lodge against him and was in good standing in January, 1911. He had been in arrears a number of times, but each time had been regularly reinstated in the order upon payment of the delinquent dues and assessments. He became delinquent for the June, 1911, assessment, and although no record was made of the action the evidence shows that he was reinstated as he had been before. He again became in arrears for the July assessment as well as quarterly dues, and on August 2, 1911, was notified by the financier of the lodge by a letter reading as follows:

"You are in arrears for assessment number seven amounting to $ 2.00 and dues amounting to $ 1.00. Under the by-laws of the lodge you were suspended on July 28. Please send us money order for this amount that you may be reinstated by next Tuesday night."

This notice was signed by Truman T. Burr, who had been recently elected financier of the lodge, and the envelope containing the notice bore the name of the preceding financier of the lodge, W. T. Inman. Jenkins issued his check, dated August 4, 1911, for $ 2 in favor of W. T. Inman to pay the delinquent assessment. This was mailed to Inman from Rockville, Mo., on August 10, 1911, at seven o'clock P. M., and was received by him between eight and nine o'clock on the morning of August 16, 1911. Burr was called by telephone on that day and told of the receipt of the check and he promised to call and get it later. About three o'clock in the afternoon of August 16, 1911, Jenkins was injured by the falling of a steam shovel upon him and died from his injuries about six-thirty o'clock the same afternoon. The next morning Inman read a notice of the accident in the papers and took to Burr's office the check of Jenkins, for which Burr had failed to call, and told him at that time of Jenkins' death. Burr kept the check until August 22, 1911, and then returned it to appellee with a letter stating that her husband was in default in the payment of assessments and dues and was under suspension at the time of his death, and therefore payment of the benefit was refused. She instituted this action, contending that Jenkins was not in default when he died and that the order was estopped to claim that he was not then in good standing. After the introduction of her evidence a demurrer thereto was overruled and, the order standing upon its demurrer to the evidence, the court gave judgment for the plaintiff. The order appeals and insists that appellee's testimony showed that her husband had been suspended for nonpayment of dues and assessments some time before his death, that the suspension was never set aside, and that there had been no waiver of his nonperformance of the conditions of the contract.

Under the laws of the order the failure to pay assessments on or before the 28th day of each month operates as a suspension of the delinquent member, and the failure to pay dues on or before the 28th day of January, April, July and October of each year likewise operates as a suspension of the member. It is provided that one who has been suspended for nonpayment of dues and assessments can only be reinstated by an affirmative vote of the lodge. It appears that the check of $ 2, which was intended as a payment of the July assessment was not mailed by Jenkins until August 10 and the suspension had then been in effect against him for about two weeks. For some reason the letter enclosing the check did not reach the financier at Galena until August 16, the day on which Jenkins died, which was nineteen days after Jenkins was in default and his suspension had become effective. Even if the check had reached the financier a week earlier it would not have operated as a reinstatement. Payment of dues and assessments is not sufficient to set aside a forfeiture or effect a reinstatement of a suspended member. Under the laws of the order and the provisions of the contract there can not be a reinstatement unless a majority of those present at a regular meeting of the lodge vote in favor of...