Mayes v. The National Council of The Knights & Ladies of Security

• Decision Date: 07 July 1914
• Docket Number: 18,924
• Citation: 142 P. 290,92 Kan. 841
• Court: Kansas Supreme Court
• Parties: EVAN B. MAYES, Appellee, v. THE NATIONAL COUNCIL OF THE KNIGHTS & LADIES OF SECURITY, Appellant

142 P. 290

92 Kan. 841

EVAN B. MAYES, Appellee, v. THE NATIONAL COUNCIL OF THE KNIGHTS & LADIES OF SECURITY, Appellant

No. 18,924

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Crawford district court; ANDREW J. CURRAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

BENEFIT INSURANCE--Forfeiture--Nonpayment of Dues Within Prescribed Time--Waiver. Where a beneficiary association places its rejection of the claim of a beneficiary upon the distinct ground of forfeiture for failure to pay the dues of a certain month within the time prescribed by the by-laws, it thereby waives any defense it may have arising out of the failure to pay at the proper times the dues of two preceding months, such payments having been received and credited out of time, by the proper officer of the local council.

Leonard S. Ferry, Thomas F. Doran, John S. Dean, all of Topeka, O. T. Boaz, and L. W. Johnson, both of Pittsburg, for the appellant.

F. B. Wheeler, and C. S. Denison, both of Pittsburg, for the appellee.

OPINION

BENSON, J.

In an action to recover upon a beneficiary certificate issued by a fraternal order the defense was based upon an alleged forfeiture of the certificate for failure to pay monthly dues as provided in the by-laws of the National Council.

It was admitted that payments of the dues of $ 1.25 per month, as required by the certificate, had been regularly made by or on behalf of Elizabeth Mayes, the certificate holder, except those payable in June, July and August, 1909, respectively, and that these were paid at one time, alleged by the plaintiff to have been August 31, and by the defendant September 4. The by-laws provide that the dues payable on the first day may be paid on or before the last day of each month. If not so paid the member is suspended without notice, but may be reinstated, if in good health, by making the payments within sixty days from the date of suspension. After that period he may be reinstated upon a medical examination and certificate of good health approved by the medical director and the payment of arrearages. The dues for June, July and August were paid for Mrs. Mayes by her daughter on August 31. The dues for September were also paid at the same time, but a separate receipt was taken for that payment. The June, July and August payments were credited on the books of the financier of the subordinate council who received them as though paid on the last day of each month. These entries were made in accordance with a custom of the local council to so record payments when accepted after the regular time, and there was evidence tending to prove that it was also the custom to receive such overdue payments without a medical certificate and examination required by the by-laws, if the member was in good health.

At the time of making the payments Mrs. Mayes' daughter told the financier that her mother was sick, which was the fact. She was taken to a hospital soon afterwards, where she died on September 8.

The money so paid was in a day or two afterwards delivered to the district deputy, an officer of the defendant, and was held by him until shortly after the death of Mrs. Mayes, when he tendered it to her daughter who had made the payment, but who refused to accept it. The evidence relating to the date of the payments, and the conversation at the time concerning the sickness of Mrs. Mayes, is conflicting, but the conflict is resolved by the general finding in favor of the plaintiff.

A by-law of the defendant provides that the National Council shall not be bound by the acceptance of arrears from suspended members not entitled to reinstatement, and that the failure of any financier to report the suspension of a member shall not waive the forfeiture. Also, that the financier shall not knowingly receive assessments or dues from a suspended member who is not in good health. They also declare that a subordinate council and its officers are the agents of its members in the collection and transmission of assessments, for whose negligence the National Council shall not be liable.

A statement of the plaintiff's claim was forwarded by her attorneys with proofs of death to the secretary of the National Council with a request for payment, and an offer to supply additional information if desired. Three days afterward the president of the defendant association answered the letter, saying:

"Your letter of the 27th inst., to the national secretary, has been referred to me, as the national secretary is absent from the city attending a session of the National Fraternal Congress. I will, therefore, proceed to inform you briefly as to the facts in the Elizabeth Mayes case, as I dealt with the problem immediately following her death, which you report occurred on the 8th of September, 1909. . . . The assessment and dues of Mrs. Mayes, which were due on the first day of August, and which she had until midnight of the last day of August to pay, were not paid to the financier of Free Silver Council No. 198 until September 4. Consequently, the deceased was suspended for nonpayment of the August assessment and dues from midnight of August 31 until September 4, 1909 . We are in possession of evidence that can not be questioned showing that the deceased was seriously ill on September 4, 1909. In fact,...