Modern Order of Praetorians v. Griffin

• Decision Date: 14 May 1928
• Docket Number: 27109
• Court: Mississippi Supreme Court
• Parties: MODERN ORDER OF PRAETORIANS v. GRIFFIN. [*]

118 So. 175

151 Miss. 312

MODERN ORDER OF PRAETORIANS v. GRIFFIN. ^[*]

No. 27109

Supreme Court of Mississippi

May 14, 1928

Division A

Suggestion of Error Overruled Oct. 1, 1928.

APPEAL from circuit court of Clarke county, HON. J. D. FATHEREE Judge.

Action by Mrs. Kate Griffin against the Modern Order of Praetorians. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Judgment reversed.

Terral & Adams, for appellant.

It is a settled principle of law that failure of a member of a mutual benefit society to pay his dues or assessment promptly under the laws of the society will automatically remove his good standing and prevent recovery on his certificate in case of death, and this, notwithstanding the clerk or recorder of the local camp or council may have accepted overdue assessments of other members from time to time if the local clerk or recorder had no authority to waive the laws of the order.

Article 20, section 3, of the constitution of the Praetorians provides: "It shall be the duty of every member to see that his dues are paid in time to his worthy recorder. Members failing to pay dues in accordance herewith shall lapse immediately without notice and all rights, privileges and benefits shall cease at once." Section 2 of article 20 provides: "That all dues shall be payable for each month on or before the first day thereof and must be paid not later than the 20th day thereof." Section 3 of the same article also provides: "That notice of lapse may be thereafter sent out by the secretary but shall be in the nature of a remainder only and not a requisite before or after suspension takes effect."

Article 26, section 2, of the constitution of the Praetorians provides: "That any member whose dues shall not be paid as herein provided shall immediately lapse. To effect reinstatement within thirty days a member, while in good standing, may deposit with his recorder his unpaid dues and when the supreme senate has received and accepted such dues the reinstatement shall be effective, but not otherwise." The application of insured on page 129 which is made a part of the contract of insurance provides for the punctual payment of all dues and the insured declares that he will conform to and obey the Constitution, rules, laws and usages of this order.

The contention of appellee is that the notice of lapse dated May 28, 1926, estopped the Praetorians from setting up as a defense the nonpayment of dues prior to the month of May, 1926. It is our contention that it does not. This, however, is not decisive of the case. If the insured at the time of his death on June 12, 1926, had not paid his dues for May, 1926, on or before the 20th day of May, as provided by the constitution of the Prætorians, then his beneficiary has no right of recovery against the Praetorians unless the provisions of the constitution has been waived. The testimony of Recorder Norris is to the effect that the insured had a conversation with him on Sunday before the death of the insured in which the insured made his proposition to pay his dues for May, 1926, the next week and that he told him all right.

There is no testimony anywhere that Norris had any special authority to waive constitutional provisions of the order and extend the time of the payment of the dues of this member who had lapsed his membership in the order and had been so notified that his membership was lapsed by the notice if lapse dated May 28, 1926, already referred to, and there is no proof anywhere in the record that Norris, or the insured or anyone else gave the Praetorians notice that he had had any such agreement with the insured. The insured therefore had direct, positive notice from the head office of the Praetorians that his membership had lapsed and what were the requirements for reinstatement, which requirements no one ever attempted to comply with until after the death of insured. A member of a fraternal benefit order is presumed to know the provisions of the constitution and by-laws of the order and those provisions are a part of his contract with the order. J. O. U. A. M. v. Thompson, 45 L. R. A. (N. S.) 1148; Odd Fellow Benefit Association v. Smith, 101 Miss. 340. See Co-operative Life Association v. McKonico, 53 Miss. 233; Odd Fellows Benefit Association v. Smith, 101 Miss. 332; Sovereign Camp W. O. W. v. Hynde, 134 Miss. 705; W. O. W. v. Newsom, 14 A. L. R. 903.

The certificate of insurance, the application and the constitution and by-laws of the order constitute an express contract which is clear and not ambiguous and requires no extrinsic testimony to explain its terms. It is well established that a custom or usage which is repugnant to the terms of an express contract is not permitted to operate against it and evidence of it is inadmissible, for while usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. 12 Cyc. 1091-1093. The Praetorians is a fraternal benefit society as defined by section 5173 of Hemingway's Code 1917, and it had and has a permit to do business in the state of Mississippi under section 5188, Hemingway's Code 1917. Section 5192, of Hemingway's Code, 1917, reads as follows: "Waiver of the provisions of the laws.--20. The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all beneficiary members." Laws 1916, ch. 206, in effect April 4, 1916.

A waiver must be manifested in some inequivocal manner and there must be an intention to waive in order to establish an effective waiver. Equitable Life Ins. Society v. McElroy, 83 F. 631, 123 Cal. 360; First National Bank v. Mackrell, 69 Am. St. Rep. 64. There can be no recovery on a certificate where a member died during suspension for nonpayment of dues. Grayson v. Grand Temple, 171 S.W. 489.

Insurance statutes and decisions covering commercial (old line) insurance are not applicable to fraternal as they are controlled by different statutes. Laws 1916, ch. 206; Sovereign Camp v. Carrington, 90 S.W. 921; Sovereign Camp v. Downer, 241 S.W. 228; Sovereign Camp v. Nigh, 223 S.W. 291; Thetford v. Modern Woodmen of America, 273 S.W. 666. The home office of the Praetorians, being in the state of Texas the statutes and decisions of Texas should control the construction and interpretation of the policy and constitution and bylaws of the order. Under the Revised Statutes of Texas, 1925, article 4846, is provided: "That a fraternal insurance society has authority to limit the power of its agent and officer to waive any condition of the insurance certificate, constitution or by-laws of the society." Royal Arcanum v. Green, 237 U.S. 541; Woodman v. Todd, 283 S.W. 659; Modern Woodman v. Mixon, 41 A. L. R. 1384; Johnson v. Mutual Life, 63 L. R. A. 833; Mutual Life v. Hilton Green, 241 U.S. 613.

There is another reason why the alleged agreement between the local recorder, Norris, and the insured for the extension of the time for the payment of his May and June, 1926, dues is invalid and void. This alleged agreement was entered into on Sunday before the insured was buried the next Sunday. This is the testimony of the witness Norris introduced by appellee, plaintiff below, given on direct examination and we submit can be taken advantage of although our court has held that the illegality of a contract made on Sunday is an affirmative defense, yet having been brought out by the plaintiff herself needs no notice under the general issue or the special plea to enable the defendant to take advantage of it. It is well settled that any contract entered into on the first day of the week, commonly called Sunday, is void and both parties being in pari delicto it is binding on neither party. Black v. McMurray, 56 Miss. 217; Strouse v. Lanctot, 27 So. 606.

Morse & Bryan, for appellees.

From the original brief of appellant it will be seen that the defense of this case rests primarily upon certain provisions of the constitution and by-laws of the order requiring the payment of dues by members on or before the 20th day of the month in which they are payable.

In Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453, similar provisions were there examined. In that case, the organization relied upon provisions of the constitution and by-laws of the appellant relative to the denial of the right of any local or subordinate lodge or any officers or member thereof, or any organizer, deputy or agent, to waive any of the provisions thereof. As a matter of fact, article 37 of the appellant order here is much more drastic and is much broader than the provision of the Constitution of the Fraternal Aid Union.

In the Whitehead case it was also held that the manager of the Fraternal Society being vested with control over the particular matters passed upon by him, was the agent of the organization and acted for it. The court further stated that as its agent, knowledge coming to him "must be the knowledge of the appellant."

Subsequent to the decision in the Whitehead case a motion was filed by the Fraternal Aid Union to transfer its suggestion of error to the court en banc on the ground that the effect of the previous decision was to destroy the section of Hemingway's Code above referred to as unconstitutional. This court in 125 Miss. 661; 88 So. 274, in passing upon the motion expressly stated that the above statute was not held void but that: "The trouble is that section 106 of the constitution and by-laws of the appellant does not conform to what is authorized by section 20 of chapter 206, Laws 1916. The...