Lavin v. The Grand Lodge of Ancient Order of United Workmen of Missouri
| Citation | 86 S.W. 600,112 Mo.App. 1 |
| Parties | LAVIN, Respondent, v. THE GRAND LODGE OF THE ANCIENT ORDER OF UNITED WORKMEN OF MISSOURI, Appellant |
| Decision Date | 04 April 1905 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.
REVERSED.
Judgment reversed and entered in favor of defendant.
F. H Bacon for appellant.
(1) Being suspended, Lavin could only be reinstated by compliance with the laws relative to reinstatement, which it is admitted he never did. Carlson v. Supreme Council, etc., 115 Cal. 466, 47 P. 375; Grand Lodge v. King, 10 Ind.App. 639, 38 N.E. 352; Graves v. Modern Woodmen of America (Minn.), 89 N.W. 6; Rice v. Grand Lodge etc., 92 Iowa 417, 60 N.W. 726; Sovereign Camp Woodmen of the World v. Rothschild (Tex.), 40 S.W. 553; McDonald v. Supreme Court, etc., 78 Cal. 49; Wells v. Independent Order, etc., 25 Canadian L. Journal (N. S.), 209; Lyon v. Sup. Assembly, etc., 153 Mass. 83; Harvey v. Grand Lodge, etc., 50 Mo.App. 472; Supreme Lodge, etc. v. Keener (Tex. Civ. App.), 25 S.W. 1084; Grand Lodge v. Jesse, 50 Ill.App. 101; Knights of Honor v. Oerters, 95 Va. 610; (2) Lavin acquiesced in his suspension and abandoned the order. Borgraefe v. Knights and Ladies of Honor, 26 Mo.App. 226; State ex rel. Stone v. Grand Lodge, 78 Mo.App. 546; Stewart v. Supreme Council, 36 Mo.App. 319; Glardon v. Knights of Pythias, 50 Mo.App. 45; Sovereign Camp, etc. v. Hicks, (Tex. Civ. App.) 84 S.W. 425; Supreme Lodge v. Wilson, 66 F. 785; Ryan v. Mutual Reserve Fund Life Ass'n, 96 F. 786; Mutual Life Ins. Co. v. Allen, 178 U.S. 351; Grand Lodge A. O. U. W. v. Scott (Neb.), 95 N.W. 191.
James J. O'Donohoe for respondent.
Lavin's suspension being void it was not incumbent on him to seek reinstatement, and the non-payment of assessments after the void suspension cannot be set up as a ground of forfeiture or abandonment. Melroy v. Knights of Honor, 28 Mo.App. 474; Glardon v. Knights of Pythias, 50 Mo.App. 45.
The plaintiff, Annie Lavin, is the widow of Patrick Lavin, deceased, who was a member of Standard Lodge No. 80 of the defendant Order. He held an insurance certificate in the Order dated January 23, 1899, of which certificate plaintiff was the beneficiary. It entitled her to receive $ 2000 at the death of her husband, provided he was then a member of the Order in good standing. This action is on that certificate for the amount of the insurance stipulated to be paid. The defense is two-fold: First, that Lavin failed to pay the monthly assessment of $ 2, 62 for the month of September, 1900, on or before the 28th day of that month as required by the laws of the Order and that by such failure he was suspended immediately from his membership in the Order and his certificate became null and void; second, that on November 1, 1900, Lavin abandoned his membership in the Order and severed his connection therewith, whereby his membership certificate became null and void.
This case was here on a former appeal, and the opinion given on that appeal will be found reported in the 104 Missouri Appeal Reports, page 1. The facts of the case are stated in detail in connection with that decision, in which we held that there could have been no forfeiture of the certificate of insurance for the non-payment of the assessment for September, 1900, provided it was tendered to the financier of the Order as required by the by-laws, prior to the 28th day of the month. The case was then reversed for certain errors and remanded to be retried on the issue of whether a default occurred in the payment of said assessment and whether Lavin thereafter abandoned his connection with the Order. At the second trial there was conflicting evidence concerning the assessment for September, 1900. The testimony of Walsh, the financier of the defendant, and his daughter, was that Lavin's stepchildren tendered some money to pay his assessment, but an insufficient amount; and as the assessment for September remained delinquent until October 12th, when the financier made his report, Lavin was suspended from membership. There was a notation by the secretary of the Order in the minutes of the meeting held October 25th, that Lavin had been suspended. Walsh testified that he always notified a suspended member by letter of the suspension, and for that reason believed he notified Lavin, but had no distinct recollection of doing so. Lavin's stepdaughter, Annie Dooley, testified to tendering Walsh three dollars on September 3rd, to pay the assessment then due, which amounted to $ 2.62, and that Walsh refused to receive the amount, saying it was not enough. Her brother, John Dooley, testified that two days afterwards he took $ 5 to Walsh, which his father gave him for that purpose, and Walsh refused to accept the money, saying it was insufficient. Walsh contradicted the children, saying he was offered $ 2 in October and $ 3 a few days later, but those sums did not cover the assessments delinquent by the time the offers were made and he refused the money for that reason. The defendant put in evidence a letter bearing plaintiff's name at the end, which tended to prove Lavin had fallen behind in payment of his assessments on account of a labor strike and was not able to catch up. This letter was dated April 17, 1902, and is as follows:
Mrs. Lavin denied writing that letter. Other evidence was introduced tending to prove Lavin abandoned the Order. It was shown by a witness or two that he had expressed dissatisfaction with it and an intention to discontinue his membership. He paid no assessments or dues and made no tender thereof after September, 1900, although he lived until July 24, 1901.
Under the instructions of the court a verdict was returned for the plaintiff.
The contention of the defendant is that the court erred in refusing to direct a verdict for it, and this for two reasons. The first one is that the evidence conclusively proved Lavin neither paid nor tendered his September assessment prior to the 28th day of that month and, hence, he became suspended as a member. It should be stated that the by-laws provided for suspension ipso facto if a member failed to pay his assessments seasonably. No proceeding or hearing was necessary to work a suspension; and this sort of by-law is valid. We reject the argument that all the evidence went to show Lavin defaulted in September. The evidence is by no means conclusive that he did. There was testimony for the jury to weigh on the issue; for if the children told the truth, and they were not altogether uncorroborated, the September assessment was twice tendered and rejected. Much is said about the unreasonableness of the plaintiff's evidence on the point, and it does look improbable that such an incident occurred; but it was for the jury to take the improbability into consideration in weighing the evidence.
The other reason advanced in support of the proposition that the court should have directed a verdict for the defendant, is that Lavin neither paid nor tendered any assessment subsequent to September, 1900, though by the laws of the order, one fell due each month until he died. He neither paid further assessments nor took any steps to question his suspension or be reinstated, Therefore, it is argued, there can be no recovery on the certificate. According to the by-laws of the Order, Lavin could not be suspended from membership and his certificate forfeited for non-payment of dues, except by a certain procedure in the lodge, which was not taken. If the certificate became null and void for defaults after October, 1900, it was for failure to pay assessments. It is important here to ascertain the exact facts. The testimony for the defendant is that Lavin owed $ 2.62 in September, and the children testified to tendering respectively three and five dollars to pay his assessment. If they made those tenders, a sufficient amount was offered to the financier to discharge all that was owing and he was in duty bound to accept payment. We are stating the facts now according to the testimony for the plaintiff, as the jury believed the plaintiff's witnesses. It is certain that no payments were tendered for the subsequent months of Lavin's life, and that he made no effort to obtain reinstatement. The position taken by the defendant's counsel is that these undisputed facts show an acquiescence in his suspension if he knew of it; or, if he did not, an abandonment of the Order--that if he expected to retain his insurance, he was bound to treat himself as a member and seek reinstatement, or, at least, offer to pay subsequent assessments, which the by-laws required every member to pay each month. The circuit court took that view, as appears from the following instruction given to the jury:
"The court instructs the jury that, even if they find from the evidence that Patrick Lavin, or some one for him, tendered the financier of the Standard Lodge No. 80, in proper time,...
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