Liptak v. Sec. Benefit Ass'n
| Decision Date | 23 December 1932 |
| Docket Number | No. 21151.,21151. |
| Parties | LIPTAK v. SECURITY BENEFIT ASS'N. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Action by Lenka Liptak against the Security Benefit Association. Judgment for plaintiff was affirmed by Appellate Court for the Fourth District (262 Ill. App. 512), and the defendant appeals.
Reversed and remanded.Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; Jesse R. Brown, Judge.
Terry, Gueltig & Powell, of Edwardsville, and A. W. Fulton and Joseph F. Sheen, both of Chicago, for appellant.
M. R. Sullivan, of Granite City, for appellee.
The Appellate Court for the Fourth District has granted a certificate of importance and appeal in this cause, presumably on the ground that some new or important question is involved in it. The appellee, as widow of Julius Liptak, brought suit in the circuit court of Madison county against appellant, a fraternal benefit society, on a benefit certificate issued to Liptak on November 26, 1921, in the amount of $1,000. To the declaration appellant filed no plea of general issue but a special plea setting out certain sections of its by-laws and alleging that before his death the insured became suspended for failure to pay premium assessments in accordance with the provisions of those by-laws. There was a trial by jury and a verdict for plaintiff in the sum of $1,000. Judgment entered thereon was affirmed by the Appellate Court.
The special plea relied on was to the effect that under the by-laws of the society Liptak's policy had lapsed by reason of his failure to pay the assessment for June, 1929, before the last day of that month. The appellant asserts that thereafter, in July of that year, Liptak, or some one for him, attempted to reinstate him by payment of assessments for the months of June and July, but that this payment was made to one not authorized by the society to receive it, and as a result Liptak was not reinstated. It further states that he was not in good health at that time and could not have been reinstated. This special plea also asserts that the amount due under the certificate in any event would not be $1,000 but would be $958 under the terms of the certificate, which provide that on maturity by death there shall be deducted, for the reserve fund, from the amount shown on the certificate, $50, less $1 for each year the certificate had been in force. In this case that period was eight years, and the deduction for the reserve fund would therefore be $42, making the amount due under the certificate $958.
Section 103 of the by-laws as set out in the special plea requires, before delivery of a beneficiary certificate, the payment of one assessment and local dues for one month, and thereafter, on or before the last day of each succeeding month, without notice, the payment of one assessment and local dues to the financier. Section 112 of the by-laws as set out in the special plea provides that the financier shall keep a record of all assessments and dues received from each member, showing the date when the dues and assessments were actually received by the financier. This section of the by-laws also provides as follows: Other sections of the by-laws provide that acceptance of assessments and dues from members not entitled to reinstatement shall not bind the association or constitute a waiver of any provision of the by-laws until a demand has been made for their return. They also provide that no officer of a subordinate lodge may waive any provisions of the by-laws of the association, and that no custom or course of conduct in violation of such by-laws shall be held to constitute a waiver or estoppel as to the association unless actual notice thereof shall be received by the national president or the national secretary.
The dispute in the case arises over the payment during June, 1929, of the assessment and dues for that month. Liptak died on November 13, 1929. He was ill from the spring of that year, and it is conceded that if he became suspended in June his health was such as to prevent his reinstatement. The testimony of appellee and her witnesses is to the effect that one John R. De Bow, an officer of the association, came to the house of appellee, at her request, on the 29th of June and received the payment for that month on the certificate of Julius Liptak...
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