Montour v. Grand Lodge A. O. U. W. of Oregon

• Decision Date: 22 October 1900
• Citation: 62 P. 524,38 Or. 47
• Parties: MONTOUR v. GRAND LODGE A.O.U.W. OF OREGON.
• Court: Oregon Supreme Court

62 P. 524

38 Or. 47

MONTOUR v. GRAND LODGE A.O.U.W. OF OREGON.

Supreme Court of Oregon

October 22, 1900

Appeal from circuit court, Multnomah county; M.C. George, Judge.

Action by Lillie Myrtle Montour, by Helen Montour, her guardian ad litem, against the Grand Lodge of the Ancient Order of United Workmen of Oregon. From a judgment in favor of plaintiff defendant appeals. Reversed.

This is an action to recover the sum of $2,000 on a certificate of mutual life insurance issued by the defendant to Daniel Montour, plaintiff's father, in which she is named as the beneficiary. The transcript shows that the defendant is a corporation organized under the laws of the state of Oregon for the purpose, among others, of creating a fund from which is drawn a stipulated sum upon the death of a qualified member, payable to his beneficiary. Daniel Montour, on June 15, 1893, became a member of Pig Iron Lodge, No. 135, at Oswego, Or., a subordinate lodge under the defendant's exclusive jurisdiction, and received a certificate to the effect that upon his death the defendant would pay his beneficiary the sum of $2,000, provided he complied with all the laws, rules, and regulations of the order. The plaintiff alleges that her father died December 5, 1896, having duly performed all the conditions imposed upon him by the laws rules, and regulations of the order, except those waived by the defendant, which waiver is particularly set out; that the defendant, having been duly notified of his death, refused to pay the sum so stipulated, for which she prays judgment. The answer denies the material allegations of the complaint, and avers that on July 1, 1894, an assessment of one dollar each was duly made upon all the members of the order, which became due and payable from Montour on the 28th day of that month that due notice thereof was regularly served upon him, but he neglected to pay the same within three months from that date, and was thereupon suspended; that his application to said Pig Iron Lodge for reinstatement was, on January 17, 1895, duly and regularly rejected by a majority vote, from which decision he never appealed, but acquiesced therein. It is also alleged that, by reason of Montour's failure in these respects, plaintiff is estopped to assert that the action of the lodge in refusing to reinstate her father was irregular, or to deny that defendant has complied with its covenants. A reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a judgment for plaintiff for the sum demanded, and defendant appeals.

Wm. Smith and Geo. H. Durham, for appellant.

H.K. Sargent, for respondent.

MOORE, J. (after stating the facts).

The constitution of the Grand Lodge of the Ancient Order of United Workmen, so far as deemed applicable herein, provides in general terms, that the beneficiary fund shall remain in the treasuries of the subordinate lodges until called for, and be composed of assessments made from time to time upon the members, one of which is paid by each member as a part of his admission fee. Whenever such fund in the grand lodge treasury becomes less than $2,000, the grand recorder is required, upon the 1st day of the month, to call upon the subordinate lodges to forward the beneficiary fund in their respective treasuries, and at the same time to make an assessment of one dollar upon each member of the order who has received the workman degree previous to the death upon which the assessment is made. Within five days from the receipt of such call, it is incumbent upon the subordinate lodges to forward said fund to the grand recorder. When an assessment is made upon any member for the beneficiary fund, it is his duty to pay the same to the financier of the subordinate lodge on or before the 28th day of the month in which it is made, and, if he fail to do so, he shall forfeit all the rights and privileges of the order from and after that date, and shall not be reinstated unless within three months from such forfeiture he shall pay all assessments that have been made during that time, including the assessment for the nonpayment of which he was suspended. If such payment is not made within three months from the date of the suspension, as a prerequisite to his reinstatement he must be examined and recommended therefor by the medical examiner of his lodge, and such examination and the member's application must be approved by the medical examiner of the grand lodge, and he must also obtain the consent of his lodge by a majority vote. If a suspended member is not reinstated within six months from the date of his suspension, his benefit certificate shall be annulled, and he shall not be readmitted to membership except upon an original application, and by paying the sum of two dollars into the general fund, and one dollar into the beneficiary fund, and is not above the age of 45 years. Any member suspended or expelled from the order for any cause shall forfeit all claims on the part of himself or his beneficiary to the beneficiary fund, and to the rights, benefits, and privileges of membership in the order. Any member may appeal to the grand lodge or to the grand master workman from any decision of his lodge, by giving a written notice thereof to the master workman of the subordinate lodge within 30 days, and filing within 60 days from the date of such decision with the grand master workman or the grand lodge a transcript thereof.

It is contended by defendant's counsel that the evidence conclusively shows that Montour was suspended July 28, 1894, by reason of his failure to pay an assessment which became due at that time; that he did not pay the delinquent and accrued assessments until more than three months had elapsed from his suspension; that having made application for reinstatement within six months from July 28, 1894, the lodge of which he had been a member, by a majority vote, refused its consent thereto, from which action he took no appeal, but acquiesced therein; and hence the court erred in refusing to charge the jury to find for the defendant as requested. Plaintiff's counsel insist, however, that Montour's assessment, which became due July 28, 1894, was paid for him by Pig Iron Lodge; that on November 19, 1894, and within three months from the assessment which became due in August of that year, he paid all assessments and dues; that the subordinate lodge, in rejecting his application, acted without jurisdiction; and that having tendered to the lodge the assessments and dues imposed by the grand lodge, which were refused, he was a member of the order in good standing at the time of his death, and hence no error was committed as alleged.

An examination of the evidence shows that the monthly dues of Pig Iron Lodge are 50 cents, and that the grand recorder, in 1894, made the following assessments in favor of the beneficiary fund, to wit: January 1st, No. 1, $1; February 1st, Nos. 2 and 3, $2; March 1st, No. 4, $1; April 1st, No 5, $1; May 1st, Nos. 6 and 7, $2; June 1st, No. 8, $1. That Montour during that year paid the following sums to the financier of his lodge, to wit: February 15th, assessments Nos. 1, 2, and 3, $3, dues, $1; April 7th, No. 4, $1, dues, 50 cents; May 10th, Nos. 5 and 6, $2, dues, $1; being delinquent, July 1st, $2 on assessments and 50 cents for dues. The financier of his lodge, however, neglected to give him credit for $1 on account of assessments and 50 cents for dues; thus making it appear that he was delinquent $3 for assessments and $1 for dues. The account of each member with his lodge is balanced the 30th of June and 31st of December of each year. Montour's account, as corrected, shows he was indebted July 1, 1894, on account of assessments, $2, dues, 50 cents. The grand recorder thereafter made the following assessments: July 1st, No. 9, $1; August 1st, No. 10, $1; September 1st, No. 11, $1; October 1st, Nos. 12 and 13, $2; November 1st, Nos. 14 and 15, $2; December 1st, Nos. 16 and 17, $2; total assessments, including those remaining unpaid July 1st, $11, dues, $3.50. Montour made the following payment: November 19th, assessments 7 to 16, inclusive, $10, dues, $3.50; thus leaving him delinquent on account of assessments the sum of $1 when the books were balanced December 31, 1894. His account thereafter is as follows: January 1, 1895, debtor to balance on account of assessment, $1; January 1st, assessments Nos. 1 and 2, $2. January 17th, 1895, Montour paid $4 on account of assessments, and $1 on account of dues,--thus overpaying his account $1 on assessments and 50 cents on dues; which explains the error of the financier in failing to give him credit for these respective amounts, which were paid May 10, 1894. J.C. Haines, the financier of Pig Iron Lodge, No. 135, sent to the grand recorder, on July 27, 1894, the sum of $51 and a beneficiary return, purporting to be on assessment No. 9, showing that on that day there were 51 workmen in good standing in said lodge; and on August 17, 1894, the sum of $50 and a beneficiary return, purporting to be assessment No. 10, showing that on said day there were 50 members in good standing, and that on August 1, 1894, Dan Montour was suspended for the nonpayment of delinquent assessment No. 6. Haines, appearing as defendant's witness, testified that Montour's assessments Nos. 6 and 7, May 1, 1894, $2; No. 8, June 1st, $1; and No. 9, July 1st,--were paid to the grand recorder for him by Pig Iron Lodge. This witness, on April 5, 1894, gave Montour a receipt for the payment of assessment No. 4, $1, and dues, 50 cents; and May 10th another receipt, purporting to evidence the payment of assessments Nos. 4 and 5, $2, and dues, $1,--thus showing that he collected assessment No. 4 twice, when the receipt should have evidenced...