Langnecker v. Trs. of Grand Lodge A. O. U. W. of Wis.

• Decision Date: 24 September 1901
• Citation: 87 N.W. 293,111 Wis. 279
• Parties: LANGNECKER v. TRUSTEES OF GRAND LODGE A. O. U. W. OF WISCONSIN.
• Court: Wisconsin Supreme Court

111 Wis. 279

87 N.W. 293

LANGNECKER

v.TRUSTEES OF GRAND LODGE A. O. U. W. OF WISCONSIN.

Supreme Court of Wisconsin.

Sept. 24, 1901.

Appeal from circuit court, Buffalo county; E. W. Helms, Judge.

Action by August Langnecker against the trustees of the Grand Lodge of Ancient Order of United Workmen of Wisconsin. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action to recover on a benefit insurance certificate. The trial was by the court. The facts found were, in effect, that in October, 1881, upon the written application of Emil Richter representing among other things that he was a saloon keeper, defendant, a duly organized benevolent association authorized to do a life insurance business on the mutual assessment plan, accepted the applicant as a member and issued to him a certificate in due form; that by the terms of the application Richter promised, among other things, to comply with all the laws, regulations and requirements of defendant existing at the time of the issuance thereof or thereafter made, and performance of that promise was made a condition of the enjoyment of any benefit under the insurance contract; that May 2, 1882, the assured married the plaintiff and thereupon a new certificate of membership in the defendant order was issued in place of the one before mentioned, the only change being the substitution of the wife and children of the assured as beneficiaries for the persons originally named in the contract; that Richter paid his dues to the local lodge of defendant according to the terms of his contract and performed his obligations up to the month of September, 1894; that he ceased to be a saloon keeper prior to the year 1885, but re-entered such business July 1, 1894, and continued therein till September 5, 1897, when he died; that when Richter became a member of the defendant order its laws permitted him to conduct a saloon business, but in June, 1893, a by-law was regularly adopted to the effect that if any member thereof should engage in such business after August 1, 1893, he should be expelled from the order, which by-law has ever since been in force; that August 11, 1894, Richter, without notice or opportunity to be heard, was expelled from the order by a resolution of the local lodge of defendant, to which he belonged; that defendant is made up of a grand and subordinate lodges; that the subordinate lodge to which Richter belonged, by the terms of the insurance contract, was entitled to regularly collect of him one dollar every three months, and the continuance in force of his membership certificate was dependent upon payment of such dues and of assessments made by the grand lodge in accordance with the rules of the order; that it was customary and rulable for the local lodge to collect the assessments made by the grand lodge; that there were two such assessments in August, 1894, which were paid by Richter to the proper officer of the local lodge, called the “financier”; that three assessments were made in September, 1894; that Richter tendered to the financier of his lodge the September assessments, but his tender was refused upon the ground that he was no longer a member of the order; that Richter's membership was included in those assessed up to and inclusive of January, 1895, notice of the assessments being, according to the laws of the order, published in its official paper, a copy of which was regularly mailed to him; that the notice was to the effect that it would come to suspended members, but that the sending thereof to them was not intended as a recognition of them as belonging to the order; that the notice also contained the following, which was in accordance with the insurance contract: “You are hereby notified that you must pay the above assessment on or before the 28th day of the month or your beneficiary certificate will stand suspended and in the event of your death will be void.” The dues of the local lodge and the assessments made by the grand lodge, not paid by Richter, amount to $85.75.

From such facts the court found that Richter was a member of the defendant order in good standing at the time of his death; that the procedure required to be followed in case of the expulsion of a member not having been followed, the proceedings in that regard were void, and that plaintiff was entitled to recover the amount promised to the beneficiary by the terms of the insurance contract, less $85.75.

The laws of the order, which were a part of the insurance contract, included the following: “Any member * * * upon neglecting or refusing to pay his dues [[[to the grand lodge] for a period of six months shall be reported to the [[[grand] lodge by the financier, and the master workman shall, unless otherwise directed by the lodge, thereupon declare such member suspended from the order.”“Any member failing or neglecting to pay all assessments made upon him for the beneficiary fund * * * on or before the 28th day of the month in which said assessments are made, shall forfeit all his rights as such member, shall stand suspended from all the rights, benefits and privileges of the order from and after that date, and shall not be reinstated except as herein provided.”

Judgment was rendered in favor of plaintiff.

C. M. Masters, for appellant.

Robt. Lees and Theo. Buehler, for respondent.

MARSHALL, J. (after stating the facts).

It is conceded that the proceeding to expel Richter from defendant order was void, but it is said his remedy was by appeal. No reason is perceived why the rule does not apply, as contended by respondent's counsel, that an appeal from an inferior to a superior tribunal to avoid the effect of an absolutely void proceeding is unnecessary. So far as we have been able to discover, the courts that have passed upon the question have so held. Glardon v. Supreme Lodge, 50 Mo. App. 45;Mulroy v. Supreme Lodge, 28 Mo. App. 463;Hall v. Same (D. C.) 24 Fed. 450. The text writers state the law likewise. Nibl. Ben. Soc. p. 101. The principle seems so elementary that we are not required to resort to authority to support it.

But it is said by appellant that, conceding the expulsion was void, Richter ceased to be a member for failure to pay the assessments that became chargeable to his membership subsequent to those which were tendered and refused. The conclusive answer to that is that the assured, having been notified that the lodge would not receive any more money from him because he was no longer a member thereof, was not bound to offer to pay assessments subsequently made. The provision of the insurance contract rendering it void for failure to pay assessments contemplated a readiness on the part of the assurer to receive the amount of assessments when seasonably tendered; and a refusal in that regard upon grounds in their nature continuous suspended the operation of such provision till notice was brought home to the assured that the attitude of the assurer had changed. There is abundant authority to that effect, but as this court has very recently considered the subject, reference to authority elsewhere is unnecessary. In Guetzkow v. Insurance Co., 105 Wis. 448, 81 N. W. 652, Mr. Justice Dodge, speaking for the court, said: “The rule of law is maintained with great unanimity that one party cannot predicate a forfeiture upon an omission by the other which his own conduct has helped to bring about; that a declaration that a policy of insurance is already forfeited will constitute a sufficient justification for the omission to tender subsequently accruing premiums or installments, upon the ground that the assured is justified in believing that no tender would be accepted, and the formality is therefore unnecessary.”

It follows that Richter was a member of the Order of United Workmen at the time of his death. But appellant insists that, conceding such to be the case, respondent was not entitled to recover since it was not disputed that Richter entered into the business of selling intoxicating liquor as a beverage subsequent to August 1, 1893, contrary to the provision of the insurance contract prohibiting him from so doing, and that he remained in such occupation up to the time of his death; that for such violation of the laws of the order the provision of the contract of insurance, to the effect that there shall be no liability upon any certificate of membership if the member shall be guilty of having violated any law of the order or is not in good standing at the time of his death, extinguished all liability under the certificate. Respondent answers that proposition by saying that Richter was engaged in the business of selling intoxicating liquor as a beverage at the time his membership commenced; that though it was competent for the order to make outstanding certificates of membership subject to laws created by its governing body subsequent to the issuance thereof, the law invoked by appellant was not intended to affect members circumstanced as Richter was; that it was aimed at persons entering into the...