Knode v. Modern Woodmen of America

• Decision Date: 02 June 1913
• Citation: 157 S.W. 818,171 Mo.App. 377
• Parties: REBECCA KNODE, Plaintiff in Error, v. MODERN WOODMEN OF AMERICA, Defendant in Error
• Court: Kansas Court of Appeals

157 S.W. 818

171 Mo.App. 377

REBECCA KNODE, Plaintiff in Error, v. MODERN WOODMEN OF AMERICA, Defendant in Error

Court of Appeals of Missouri, Kansas City

June 2, 1913

Error to Jackson Circuit Court.--Hon. James H. Slover, Judge.

Judgment affirmed.

B. D Smith and John Sullivan for defendant in error.

E. W Shannon and Botsford, Deatherage & Creason for plaintiff in error.

OPINION

JOHNSON, J.

This is an action on a death benefit certificate issued by defendant to James S. Knode, November 19, 1902. It is conceded that defendant is a fraternal beneficiary society incorporated in Illinois and authorized to do business in this State and that the certificate should be treated as a fraternal beneficiary contract. Knode joined the order at Kansas City and died in that city on January 23, 1904. Plaintiff was his mother and one of the beneficiaries named in the certificate. The defenses interposed in the answer are founded on the alleged fact that a lawful assessment levied by defendant for the month of March, 1903, and payable on or before the first day of the following month was not paid, and on the conceded fact that the dues and monthly assessments for the succeeding months to the date of Knode's death were not paid by him or for him. The first defense is that the failure to pay the March assessment, ipso facto, suspended him as a member and forfeited the insurance and the other defenses are based on the theory that in failing to pay or offer to pay the subsequent dues and assessments, Knode acquiesced in his suspension and the forfeiture of his certificate and abandoned his insurance.

Plaintiff contends and her evidence tends to show that Knode paid the assessment for March, 1903, in the time required by the contract. She concedes that the subsequent dues and assessments were not paid by him but states and is corroborated in the statement by another witness, that the clerk of the lodge of which her son was a member repeatedly assured her, during her son's last illness, which began in the fall of 1902, that the lodge would pay the dues and assessments and during the period of the alleged abandonment of the contract repeated the assurance and told her that the lodge had been keeping up the payments. Her evidence does not show that any of the superior officers of the order knew of these promises or that they were made in pursuance of any custom of the local lodge, known to or acquiesced in by the supreme lodge or its officers. The fact that such promises were made is disputed in the evidence of defendant.

The certificate states that it is issued in consideration of the agreement of the member "to pay all assessments and dues that may be levied during the time he shall remain a member of this society," that failure to pay a monthly assessment "on or before the first day of the month following the date of the notice of levy" shall forfeit the certificate, and further provides that "this certificate and contract is and shall be subject to forfeiture for any of the causes of forfeiture which are now prescribed in the by-laws of this society."

The by-laws require that notice of monthly assessments shall be given in the official paper published by the society, a copy of which shall be mailed to each beneficial member and that "mailing copy of paper shall be notice to member of assessments." The by-laws relating to the suspension of a member and the forfeiture of his certificate states that "every beneficial member when so notified that a benefit assessment has been levied and ordered collected by the board of directors, who shall fail to pay same on or before the first day of the month following the date of said notice . . . shall ipso facto become suspended and during such suspension his benefit certificate shall be absolutely null and void." Another section forbids the clerk of a local camp from collecting or receiving payment of assessments of dues from a suspended member "if, at the time tender was made, the member was in impaired health, nor unless furnished with a warranty of good health."

Reinstatement of a suspended member is allowed by the by-laws within sixty days after suspension for nonpayment of assessments, fines or dues on the payment of all arrearages, provided that "he be in good health at the time of reinstatement and furnish to the clerk of this local camp a written warranty to such effect, signed by himself, which said warranty shall be immediately transmitted by the local clerk to the head clerk and thereupon the head clerk shall file the same and notify such member of his reinstatement."

Reinstatement after sixty days and within six months after suspension is allowed on payment of all arrearages, passing a medical examination by the camp physician, and the payment of certain small fees. Plaintiff, who was living with her son during his last illness, testified that he did not receive any copies of the official paper through the mail or otherwise and had no notice from defendant of his suspension.

Only a small part of the evidence heard at the trial is included in the abstract and we are left in the dark as to the evidence bearing on many of the important issues contested at the trial. We shall regard all such issues as having been properly resolved in favor of defendant and, therefore, assume that the official papers published by defendant were mailed to the last known address of Knode.

At the request of plaintiff the jury were instructed that although they might "believe from the evidence that the assessment claimed by the defendant to have been due and payable during the month of April, 1903, was not paid by the said James S. Knode or anybody for him, yet, if the jury believe that the defendant by its acts and conduct as shown by the evidence led the said Knode to believe that a forfeiture would not be insisted upon her failure to pay said assessment, then the...