Knights of Maccabees of the World v. Pelton

• Decision Date: 08 January 1912
• Citation: 121 P. 949,21 Colo.App. 185
• Parties: KNIGHTS OF MACCABEES OF THE WORLD v. PELTON.
• Court: Colorado Court of Appeals

121 P. 949

21 Colo.App. 185

KNIGHTS OF MACCABEES OF THE WORLD v. PELTON.

Court of Appeals of Colorado

January 8, 1912

Rehearing Denied March 11, 1912

Appeal from District Court, Denver County; Harry C. Riddle, Judge.

Action by Minnie Pelton against the Knights of the Maccabees of the World. From a judgment for plaintiff, defendant appeals. Affirmed.

D.D. Aitken, S.S. Abbott, and Hainer & Smith for appellant.

William Young, for appellee.

CUNNINGHAM J.

Appellee plaintiff below, recovered judgment in the district court on a policy of life insurance issued by appellant to her deceased husband. The only defense interposed which we deem of sufficient importance to consider was based upon the contention that the assured had been suspended for nonpayment of dues, and thereafter had never been regularly and legally reinstated. The facts are not seriously in conflict, and are substantially as follows:

The assured had paid the full assessments required of him for the months of September and October, 1905. He died on November 8th of that year; the assessment for the month of November would not have been in default until December 1st. If Pelton was in arrears at all, it was for dues which he ought to have paid for the months of July and August, 1905. For those two months, it is not denied that he paid to the local tent (the name by which the local lodge or organization is designated) the amount which for years preceding had been exacted of him, and which he had been accustomed to pay.

For reasons not necessary here to discuss, his rates seem to have been increased, so that he ought to have paid $9 or thereabouts, for each of the months of July and August whereas he paid but $3 and some cents for each of said months. Thus it will be seen the question of his default is based entirely upon the difference between the amount he actually paid and the amounts he should have paid for said months. The amounts that he actually paid for said months were all that were exacted of him by the officers of the local tent, and these sums, as well as the sums he paid for the two following months, when he paid the full amounts claimed of him by both the local and supreme tents, were forwarded to and retained by the head officers of the organization. If it be granted that Pelton had not paid the full dues for July and August, there is no evidence that his failure in this respect was willful. On the contrary, his conduct in this respect appears to have been occasioned by representations made to him by the officers of the local tent, whose advice and suggestions he adopted and acted upon in all substantial features. The September and October assessments were received by the Supreme Tent without objection, and the record discloses certain correspondence between Pelton and the Supreme Recorder, or secretary, in which no hint of suspension appears; but, on the contrary, he is referred to by the title used generally to designate members of the order, and that, notwithstanding Pelton was at the time of this correspondence, if ever, in default. After Pelton's death, application was made to the head organization, by appellee's attorney, for proof of death blanks, which were forwarded, and thereafter proof of death was regularly made and filed with said organization without any intimation, up to that point, that Pelton was not regarded as a member in good standing.

So long as Pelton lived, no protest whatever was made by the Supreme Tent to the local tent concerning their exacting and accepting dues from him, and no offer was made by either body to return what he had paid until after the death of Pelton had become known to the supreme officials. It is upon this state of facts, which are undisputed, that appellee bases her claim of waiver by the order, even if it be granted that her husband was in default for the months of July and August.

In order to meet the plea of waiver, appellant introduced on the trial below certain sections of its by-laws which pertain to suspension and reinstatements, and the authority of the order or the officers of the local tents in matters of that sort. One section of these by-laws attempts to make the officers of the local tents the agent of its members in all things, and the agent of the supreme body in nothing. Another by-law provides that the acceptance of dues by either the local or Supreme Tent, after a member had been suspended, could not work a waiver of the right of the society to insist upon the previous suspension or default. If the general rules of law pertaining to agents and the doctrine of waiver may in this manner be entirely swept aside, then foreign corporations or organizations would be permitted to transact business in this state without responsible agents of any sort, thus setting at naught our...