Moran v. The Grand Lodge of Ancient Order of United Workmen of North Dakota

• Decision Date: 31 October 1919
• Citation: 175 N.W. 221,43 N.D. 395
• Court: North Dakota Supreme Court

175 N.W. 221

43 N.D. 395

JENNIE MORAN, Appellant, v. THE GRAND LODGE OF THE ANCIENT ORDER OF UNITED WORKMEN OF NORTH DAKOTA, Respondent

Supreme Court of North Dakota

October 31, 1919

Action upon a certificate of life insurance from a judgment entered upon a verdict directed for the defendant in the District Court, Burleigh County, Nuessle, J., and from a judgment entered on the verdict the plaintiff has appealed.

Affirmed.

Judgment affirmed, with costs to the respondent.

Edward T. Burke, for appellant.

It is well settled as a proposition of law, that the local officer of the lodge, similar to the A. O. U. W., can waive the "by-laws" and relieve a member from forfeiture.

While there are a few cases to the contrary, the vast majority support that view. Boyce v. Royal Circle, 99 Mo.App 349, 73 S.W. 300; Fraternal Union v. Hurlock, 33 Tex. Civ. App. 78, 75 S.W. 539; Field v. National Council, K. L. S. 64 Neb. 226, 89 N.W. 773; Wallace v. Fraternal Mystic Circle, 121 Mich. 263, 80 N.W. 6; Rice v. Grand Lodge, A. O. U. W. 130 Iowa 643, 72 N.W. 770; Whiteside v. Supreme Conclave, I. O. H. 82 F. 275; Biel v. Supreme Lodge, K. H. 80 A.D. 609, 80 N.Y.S. 751; Supreme Tribe v. Hall, 24 Ind.App. 316 79 Am. St. Rep. 262, 56 N.E. 780; Grand Lodge, A. O. U W. v. Lachman, 199 Ill. 140, 64 N.E. 1022; Danniher v. Grand Lodge, A. O. U. W. 10 Utah 110, 37 P. 245; Cauveren v. Ancient Order of Pyramids, 98 Mo.App. 433, 72 S.W. 141; Horn v. Supreme Council, C. K. A. 95 Mo.App. 433, 26 S.W. 949; McDonald v. Supreme Council, O. C. F. 79 Cal. 49, 20 P. 41; Modern Woodmen v. Jameson, 48 Kan. 718, 30 P. 460; O'Connor v. Grand Conclave, K. D. 102 Ga. 143, 66 Am. St. Rep. 159, 28 S.E. 282.

"A suspension for nonpayment of assessments is waived where the local lodge, acting as agent for the order, accepts delinquent assessments pursuant to a custom adopted by it to keep the member in good standing, without requiring compliance with the laws as to reinstatement, although the laws of the society provided that any act of the subordinate officer contrary to or in conflict therewith should be void." Jones v. Supreme Lodge, K. H. 236 Ill. 113, 127 Am. St. Rep. 277, 86 N.W. 191; Catholic Order v. Lynch, 126 Ill.App. 439.

Where a member knowing of the custom of the local lodge of receiving overdue assessments paid dues after maturity, it was held that he did not become suspended, as such custom waived prompt payment of assessments. Trotter v. Grand Lodge, L. H. L. 132 Iowa 513, 7 L.R.A.(N.S.) 569, 109 N.W. 1099, 11 Ann. Cas. 533; supplementing note in 38 L.R.A.(N.S.) 573; Walker v. American Order F. 162 Ill.App. 30; Drumgold v. Royal Neighbors, 261 Ill. 60, 103 N.E. 584; Jakes v. North American Union, 186 Ill.App. 1.

Carmody & Mulready, for respondent.

It is elementary that a plaintiff cannot show a waiver of performance or a modification of any part of a contract without alleging it, and that the fact showing a waiver of a provision in a contract must be specially pleaded. J. I. Case Threshing Mach. Co. v. Loomis, 31 N.D. 27; 25 Cyc. 726, 727.

The insured Raymond Jones could not have been reinstated except upon signing a certificate of health and by a vote of the local Bismarck Lodge No. 120, of which he was at one time a member.

Royal Highlanders v. Scovill, 66 Neb. 213, 4 L.R.A.(N.S.) 421, 92 N.W. 206; Modern Woodmen v. Tevis, 117 F. 369; Supreme Lodge v. Jones, 69 N.W. 718; Borgraefe v. Supreme Lodge, 22 Mo.App. 127; State ex rel. Young v. Temperance Benev. Asso. 42 Mo.App. 485; Grand Lodge, A. O. U. W. v. Jessie, 59 Ill.App. 101; United Modern v. Pike (Tex. Civ. App.) 76 S.W. 774; Brown v. Grand Council, N.W. L. H. 81 Iowa 400, 46 N.W. 1086; Lavin v. Grand Lodge, A. O. U. W. 104 Mo.App. 1, 78 S.W. 325; Sovereign Camp v. Rothschild, 15 Tex. Civ. App. 463, 40 S.W. 553; Eaton v. Supreme Lodge, K. H. 22 Cent. L. J. 500, Fed. Cas. No. 4259a; Graves v. Modern Woodmen, 85 Minn. 396, 89 N.W. 6; Supreme Council v. Taylor, 121 F. 66; Harvey v. Grand Lodge, A. O. U. W. 50 Mo.App. 472; Fraternal Union v. Hurlock, 33 Tex. Civ. App. 78, 75 S.W. 539; Field v. National Council, 64 Neb. 226, 89 N.W. 773; Rice v. Grand Lodge, A. O. U. W. 103 Iowa 643, 72 N.W. 770; Best v. Supreme Council, R. A. 87 Minn. 417, 92 N.W. 337; O'Connor v. Supreme Conclave, 102 Ga. 143, 28 S.E. 282; Bixler v. Modern Woodmen, 112 Va. 678, 38 L.R.A.(N.S.) 246, 72 S.E. 704; Kennedy v. Grand Fraternity, 36 Mont. 325, 25 L.R.A.(N.S.) 78, 92 P. 971; Marshall v. Grand Lodge, A. O. U. W. 133 Cal. 686, 66 P. 25; Coughlin v. K. of C. 79 Conn. 218, 64 A. 223; Lyon v. Supreme Assembly, 153 Mass. 83, 26 N.E. 236; Koehler v. Modern Brotherhood, 160 Mich. 180, 125 N.W. 49; Burke v. Grand Lodge, A. O. U. W. 136 Mo.App. 450, 118 S.W. 483; Pete v. Woodmen of World, 26 Ohio C. C. 563; Supreme Lodge v. Kweener, 6 Tex. Civ. App. 267, 25 S.W. 1084; United Order v. Hooser, 160 Ala. 334, 49 So. 354; Elder v. Grand Lodge, A. O. U. W. 79 Minn. 468, 82 N.W. 987; Brown v. Knights of Protected Ark, 43 Colo. 289, 96 P. 450; Catholic Order v. Lynch, 126 Ill.App. 439; Bagely v. Grand Lodge, A. O. U. W. 131 Ill. 498, 22 N.E. 487; National Council v. Burch, 126 Ill.App. 15; Dillon v. National Council, 244 Ill. 202, 91 N.E. 417; Hartman v. National Council, K. L. S. L.R.A. 1915E, 152; Day v. Supreme Forest, 174 Mo.App. 260, 156 S.W. 721; Woodmen of World v. Jackson, 80 Ark. 419, 97 S.W. 673; Busta v. Court of Honor, 172 Ill.App. 71; Griffith v. Supreme Council, 182 Mo.App. 644, 166 S.W. 324; Bennett v. Sovereign Camp (Tex. Civ. App.) 168 S.W. 1023; Order of U. C. T. v. Young, 212 F. 132; Squire v. Modern Brotherhood, 68 Ore. 336, 135 P. 774; Societa Unione Fratellanza Italiana v. Leyden, 225 Mass. 540, L.R.A. 1917C, 256, 114 N.W. 738; Supreme Lodge v. Quiwn, 78 Mass. 525, 29 So. 826; Garriston v. Equitable Mut. Life Asso. 93 Iowa 402, 61 N.W. 952; Adams v. Grand Lodge, A. O. U. W. 66 Neb. 389, 92 N.W. 588; Bowlin v. Sovereign Camp, 82 Minn. 411, 85 N.W. 160; Jenkins v. Ancient Order of United Workmen, 93 Kan. 324, 114 P. 223; Grand Lodge, A. O. U. W. v. Crandall, 80 Kan. 332, 102 P. 843; Van Woert v. Modern Woodmen, 29 N.D. 441.

Where it was the duty of the subordinate lodge to collect and remit dues and assessments to the supreme lodge, the officer making such collections was not an agent of the grand lodge, and an action upon his part in receiving dues and assessments after maturity would not constitute a waiver of the requirements of payments. To the same effect: Sovereign Camp v. Rothschild; Eaton v. Supreme Lodge, K. H.; Graves v. Modern Woodmen; Harvey v. Grand Lodge, A. O. U. W.; Coughlin v. K. C.; and Lavin v. Grand Lodge, A. O. U. W.--supra.

Subordinate lodges and officers cannot waive forfeitures except in the manner prescribed by the by-laws of the organization. Marshall v. Grand Lodge, A. O. U. W.; Pete v. Woodmen of World; and Supreme Lodge v. Kweener,--supra; Schoeller v. G. L. A. O. U. W. 110 A.D. 456, 96 N.Y.S. 1088.

BRONSON, J. GRACE, J., dissenting.

OPINION

BRONSON, J.

This is an action to recover on a life insurance certificate issued by the Grand Lodge of the A. O. U. W. From a judgment entered upon a verdict directed for the defendant the plaintiff, the beneficiary in such certificate, has appealed. Substantially, the facts are as follows:

Raymond Jones, aged twenty-two years, became a member of the lodge involved, about February 1, 1918. To him was issued a life insurance policy in the sum of $ 2,000, his mother being named as the beneficiary. The required fees therefor were paid by his mother. The assessments for August and September 1918, levied pursuant to the lodge requirements, were not paid, by reason whereof under the by-laws and rules of the lodge, Raymond Jones became suspended. On October 5, 1918, having contracted influenza, he was taken to a hospital in Bismarck, North Dakota. While there, on October 11 or 12, 1918, his sister paid the financier of the local lodge in Bismarck $ 13.02, and received a receipt therefor, the same being for the delinquent assessments and for the dues to December 31, 1918, including a reinstatement fee of 50 cents. There the sister signed the name of Raymond Jones to a reinstatement certificate, showing that at such date Raymond Jones was in sound bodily health. On the receipt issued by such financier it is stated that such receipt so given to a suspended member does not bind the order until the member has been reinstated as provided by the laws of the order, and that if the application for reinstatement is rejected the amount shown therein would be returned to the applicant. The sister so making...