Knights & Ladies of Security v. Lewellen

• Decision Date: 03 October 1921
• Docket Number: 139
• Citation: 233 S.W. 797,150 Ark. 60
• Parties: KNIGHTS AND LADIES OF SECURITY v. LEWELLEN
• Court: Arkansas Supreme Court

233 S.W. 797

150 Ark. 60

KNIGHTS AND LADIES OF SECURITY v. LEWELLEN

No. 139

Supreme Court of Arkansas

October 3, 1921

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed.

Judgment reversed and cause remanded.

Calvin T. Cotham and A. J. DeMers, for appellant.

A. B Belding, W. D. Swaim and James E. Hogue, for appellee.

OPINION

SMITH, J.

Appellee was the beneficiary in a certificate issued to T. J Lewellen, her husband, by appellant, a fraternal insurance company. The certificate was issued on the 31st day of May, 1919, and the insured died on August 13, 1919. The premium was payable monthly on the first day of each month in advance, and there was a provision in the constitution and by-laws of the order that, if any member should fail to pay any monthly assessment by the last day of the month for which the assessment was due, the delinquent member should automatically stand suspended.

The controlling question of fact in the case is whether the insured had paid two premiums or only one. The parties practically agree that if two premiums were paid the company is liable, whereas, if only one premium was paid, appellant is not liable. In fact, appellee, in stating the case, says: "The paramount issue, and really the only issue, in the case was as to whether the assured had paid his dues."

We do not set out the testimony bearing upon this issue, as it may be different upon the retrial of the cause.

In submitting the case to the jury the trial court, among other things, said:

"If he failed to pay his dues, then he would stand automatically as suspended unless the association would voluntarily carry him on its books. On that feature of it, even though he had not paid his dues for the month of July, if they still carried him on the books and charged that dues to him and notified him that he was in arrears and made a demand on him, I think there was some evidence here to that effect, why that would be a waiver of that part of the constitution and by-laws which says that a member is suspended for the nonpayment of dues, but unless they did carry him on that way, if he failed to pay the dues for July he was suspended and dropped automatically and could not claim any right at all under the certificate."

The only testimony on this feature of the case was that on August 6, 1919, the home office of the appellant company addressed to Lewellen, the insured, a formal notice that he was in arrears for his July dues. Objection was made to the introduction of this testimony on the ground that it was...