McLendon v. Woodmen of the World

• Decision Date: 13 April 1901
• Citation: 64 S.W. 36
• Parties: McLENDON v. WOODMEN OF THE WORLD.
• Court: Tennessee Supreme Court

64 S.W. 36

McLENDON v. WOODMEN OF THE WORLD.

Supreme Court of Tennessee.

April 13, 1901.

Error to circuit court, Shelby county; L. H. Estes, Judge.

Suit by A. T. McLendon against the Woodmen of the World. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

W. A. Duncan and C. D. M. Greer, for plaintiff in error. R. M. Beattie and Brome & Burnett, for defendant in error.

WILKES, J.

The defendant is a fraternal and beneficial order. Its objects and purposes are thus set out in its constitution and laws: "Sec. 3. The objects of this order shall be to combine white male persons of sound bodily health, exemplary habits, and good moral character, between the ages of eighteen and fifty-two, into a secret, fraternal, beneficiary, and benevolent order; provide funds for their relief; comfort the sick and cheer the unfortunate by attentive ministrations in times of sorrow and distress; educate its members in moral, social, and intellectual matters, and promote fraternal love and unity; create a fund from which upon reasonable and satisfactory proofs of the death of the beneficiary member who has complied with the lawful requirements of the order, there shall be paid a sum not to exceed three thousand ($3,000) dollars to the person or persons named in his certificate as beneficiary or beneficiaries, which beneficiary or beneficiaries shall be his wife, children, adopted children, parents, brothers, sisters, or other relatives; and to erect a tombstone or monument at the grave of every such deceased member."

It is insisted that J. J. McLendon, the husband of the plaintiff, Mrs. A. T. McLendon, was a fraternal and beneficial member of the order at the time of his death, on the 3d day of January, 1899, and that the plaintiff became thereby entitled to the payment of $1,000 as his beneficiary. By way of defense, it is said on behalf of the order that J. J. McLendon, at the time of his death, was not a beneficial member of the order; that no certificate had been delivered to him; and that at the time of his death his application for membership and insurance was pending, but the contract had not been consummated and closed.

There were two trials in the court below. Upon the first trial there was a verdict of a jury and judgment for $1,180.17, which was by the court set aside, presumably on the ground that there was no liability on the part of the company. A bill of exceptions was taken and preserved. Upon the second trial, the plaintiff having introduced his evidence and rested his case, the defendant association demurred to the evidence. Upon that demurrer issue was joined, and upon the hearing the trial judge gave judgment for the defendant company, and plaintiff has appealed and assigned errors.

The evidence in the case is largely embodied in an agreed statement of facts. From this statement it appears that the deceased, McLendon, husband of plaintiff, made his application to become a member of the order November 28, 1898. This application was forwarded by the local camp at Memphis to J. B. Frost, an officer of the order at Atlanta, Ga., who, after countersigning it, sent it to the sovereign camp of the order at Omaha, Neb. By it the application and physician's reports were delivered to the sovereign camp physician, on 19th of December, 1898, who returned it to the local camp physician to fill in certain answers in the applicant's "personal history." After filling in the required matter, it was returned to the sovereign physician, December 29, 1898. It was then accepted by the order, and it issued the certificate December 31, 1898, and immediately sent it to the clerk of the local camp at Memphis. Prior to the 31st of December, when the certificate was dated and issued, the applicant was taken sick, and from this sickness died January 3, 1899. The application, medical report, and certificate are all made part of the record by the agreed statement of facts. The only payment made by the deceased was one dollar physician's fee, and two dollars entrance fee. The printed constitution, by-laws, and rules of the order are also made part of the record.

It is agreed that the sovereign physician would state if examined that the application and medical examination was returned to the local camp physician in good faith, for the purposes heretofore stated, and not for purposes of delay, but the truth of this statement is not conceded. By a supplemental agreement it appears that, after the certificate was signed, dated, and issued, it was sent by the sovereign camp at Omaha to J. B. Frost, provisional head consul at Atlanta, Ga., who received it on or about the 4th day of January, 1899, and not knowing of the death of the applicant on the preceding day, January 3, 1899, he countersigned the certificate, and sent it forward to the local camp; that the certificate was never signed by the consul, commander, and clerk of the local camp, and was not delivered to J. J. McLendon, or any one for him, on account of his illness and death, and that this illness ante-dated December 31, 1898, the date of the issuance of the certificate; that McLendon's death occurred January 3, 1899, prior to the receipt of the certificate by the clerk of the local camp from Frost, the provisional head consul at Atlanta. It was further agreed that all payments required of J. J. McLendon at the time his application was received and acted upon were made, and that all money received from him was tendered back to his widow after his death. Proof was introduced to show that some persons were initiated and obligated into the local Memphis camp as members before they received their benefit certificates, but it was not the custom of the local camp to do so. The application, of date November 28th, is for membership in the order and participation in the beneficiary fund to the extent of $1,000 at the death of the insured, or such amount as the sovereign physician may approve, and a monument. It states that the entrance fee and certificate fee, amounting to $10, accompanies the application, and it directs that a beneficiary certificate be issued, payable, at his death, to his wife, Anna. T. McLendon. It also contains this statement, among others: "I do hereby consent and agree that this application shall form the sole basis of my admission to, and membership in, this order, and the beneficiary certificate to be issued on this application," etc. It further provides that the application and examining physician's report is the basis of, and shall form part of, the certificate issued thereon. It is further agreed that all of the provisions and laws of the order now existing or hereafter adopted shall form a part of the certificate issued hereon, whether printed on, or referred to in, such certificate or not. Further: "I agree that the liability for the payment of benefits to me or my beneficiary shall not begin until after this application shall have been accepted by the sovereign physician, a beneficiary certificate issued thereon, and personally delivered to me, and I shall have made all the payments required in section 56 of the constitution and laws of the order, and I shall have been obligated in due form." Upon the back of the certificate is indorsed: "I certify that the applicant herein named was elected to membership the 19th day of December, 1898." This is signed by the local clerk. Also indorsed is the certificate of the local physician as to the careful personal examination of the applicant, a certificate of his identity, and that his fee for examination has been paid, etc. Also a note that the application should be forwarded, if in a Southern state, to John B. Frost, provisional head consul, Atlanta, Ga.

The following provisions of the constitution and by-laws are made part of record, as bearing upon and fixing the right of the applicant, to wit:

"Sec. 56. The liability of the sovereign camp or beneficiary head camp for the payment of the benefits upon the death of a member shall not begin until after his application shall have been accepted by the sovereign physician or head physician, his certificate issued, and he shall have — First, paid all the entrance fees; second, paid his advance assessment; third, paid the sovereign camp, beneficiary head camp, or camp general fund dues for the month; fourth, paid the physician's fee for medical examination; fifth, having been obligated or introduced by a camp or authorized deputy in due form; sixth, had delivered to him his beneficiary certificate while in good health. The foregoing are hereby made a part of the consideration for, and are conditions precedent to, the payment of benefits in case of death.

"Sec. 57. The noncompliance with or nonperformance of any of the requirements in the preceding section upon the part of the applicant shall be an absolute bar to any claim upon the beneficiary funds of the order, under or by virtue of any beneficiary certificate that may have been issued in his name, or by...