Mulroy v. Supreme Lodge Knights of Honor

• Citation: 28 Mo.App. 463
• Parties: CATHERINE MULROY, Plaintiff in Error, v. SUPREME LODGE OF THE KNIGHTS OF HONOR, Defendant in Error.
• Decision Date: 03 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 463

CATHERINE MULROY, Plaintiff in Error, v. SUPREME LODGE OF THE KNIGHTS OF HONOR, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Reversed and remanded.

LOUIS A. STEBER, for the plaintiff in error: With the introduction of the benefit certificate issued and delivered to James Mulroy by defendant, proof of the signatures and official character of the signers thereto, proof of Mulroy's death, and proof that plaintiff is his widow, and the beneficiary named in the benefit certificate, plaintiff made out a prima-facie case. Supreme Lodge v Johnson, 78 Ind. 110; Lazensky v. Knights of Honor, 31 F. 592, 594. Forfeitures are not favored in law, and the courts look with extreme reluctance on any proceedings towards this end. Dill. Mun. Corp. (3 Ed.) secs 345, 346. The interest of the deceased and of his beneficiary, the plaintiff, in the beneficiary certificate is a pecuniary interest, of which neither can be deprived without due process of law. State v. Odd Fellows, 8 Mo.App. 148, 154; Commonwealth v. St. Patrick's Society, 2 Binn. 441; People v. Medical Society, 24 Barb. 570, 577; Medical Society v. Weatherly, 75 Ala. 248, 253. In the absence of any proof of power to expel a member, defendant's power to do so will be treated as denied. Wood on Nuis. (2 Ed.) p. 820, sec. 742. It is not within the power of corporations to create judicial tribunals for the final and conclusive settlement of controversies. To create a judicial tribunal is one of the functions of sovereign power. Bauer v. Sansom Lodge, 102 Ind. 262, 269; Austin v. Searing, 16 N.Y. 112, 123. No power of expulsion is granted in the corporation laws of Missouri in such cases as this. Rev. Stat., sec. 980. Defendant's by-laws on the power of expulsion are unreasonable, and, therefore, void. State ex rel. v. Merchants' Exchange, 2 Mo.App. 96; State ex rel. v. Chamber of Commerce, 20 Wis. 63; People v. Medical Society, 24 Barb. 570, 578; Medical Society v. Weatherly, 75 Ala. 248, 256. Even if the corporation could show its power to expel a member, such power would be only a delegated power from the state, whose creature it is. It would have to exercise such a power directly, and it could not delegate it again to a third party or a subordinate agency. Delegatus non potest delegare, is a favored maxim of the law. State ex rel. v. Chamber of Commerce, 20 Wis. 63; Medical Society v. Weatherly, 75 Ala. 248, 259-60. The record and proof failing to show that this lodge, as a court, acquired any jurisdiction in the premises, its proceedings are void. Bersch v. Schneider, 27 Mo. 101; France v. Evans, 90 Mo. 74; State v. Police Com'rs, 14 Mo.App. 310. The fact that Mulroy never tendered any money for assessments in 1885 is immaterial. The burden of proof is on the defendant, to show that assessments were made and that notice thereof was given, under its laws, to Mulroy. Agnew v. A. O. U. W., 17 Mo.App. 254; Siebert v. Chosen Friends, 23 Mo.App. 268; Hall v. Knights of Honor, 24 F. 450. Where there is no jurisdiction there is no judgment. A pretended judgment in such a case is a nullity. Bersch v. Schneider, 27 Mo. 101; France v. Evans, 90 Mo. 74; Hall v. Knights of Honor, 24 F. 450. From a void judgment there is no obligation to appeal. It is void in all courts and in all places. Hall v. Knights of Honor, 24 F. 450; Freeman on Judg. (3 Ed.) sec. 117. Mulroy's failure to appeal from this void judgment, even if he knew of it, does not bind plaintiff. Lazensky v. Knights of Honor, 31 F. 592, 595.

WILLIAM C. & JAMES C. JONES, for the defendant in error: The question at issue is not, was Mulroy legally expelled? But it is, was he in good standing? If he was illegally expelled, he had his remedy during his lifetime. He could have appealed to the higher tribunals which existed, as is shown by the constitution and by-laws offered in evidence by the defence. But having failed to do this, the judgment expelling him is conclusive. Karcher v. Supreme Lodge Knights of Honor, 137 Mass. 168; Grosvenor v. United Society of Believers, 118 Mass. 178; Dolan v. Court Good Samaritan, 128 Mass. 437. In the case of Chamberlain v. Lincoln (129 Mass. 70) the court holds that before members of a lodge can even apply to a court of equity for relief, they must exhaust their right of appeal to the higher tribunals, provided by the rules and regulations of the order. Laford v. Deems, 81 N.Y. 507; Robinson v. Yates City Lodge, 86 Ill. 598; People v. Board of Trade, 80 Ill. 134; Harrington v. The Workingmen's Benevolent Association, 70 Ga. 342; White v. Brownell, 2 Daly 329; Dolan v. Court Good Samaritan, 128 Mass. 439. " " " " " Stringent as are the rules in ordinary life insurance policies they should be more rigidly applied in mutual associations." Osceola Tribe v. Schmidt, 57 Md. 103; VanDyke's case, 2 Wharton 312; Toram v. The Howard Ben. Ass'n, 4 Pa.St. 519; Bliss on Ins., sec. 426, p. 765.

OPINION

THOMPSON J.

This action is brought to recover the sum of two thousand dollars, alleged to be due from the defendant to the plaintiff by reason of a benefit certificate issued by the defendant to James Mulroy, the late husband of the plaintiff, in which the plaintiff was named as the beneficiary. The answer is a general denial. At the trial the plaintiff put in evidence the benefit certificate. The official character of the signers thereof and their signatures were admitted by the defendant. The defendant also admitted the death of James C. Mulroy and that the plaintiff is his widow. There was a trial by the court sitting as a jury, a finding for the defendant, a motion by the plaintiff for judgment non obstante veredicto, an overruling of this motion, and a judgment for the defendant, from which the plaintiff prosecutes this writ of error. The death of James Mulroy took place on the sixteenth of December, 1885.

The defendant proceeded, by reading from the records of the subordinate lodge of which the deceased was a member, and by parol testimony, to show that he had been, on the tenth day of November, 1884, expelled from the lodge upon a trial upon a charge of uttering false and malicious charges against a member of the lodge; which date, it is perceived, was more than thirteen months prior to his death. It is not pretended that he paid any assessments subsequently to such expulsion, nor is there any evidence that he was ever notified to pay any. According to the language of the certificate, the obligation of the defendant to pay the sum of two thousand dollars to Catherine Mulroy, wife of James Mulroy, is conditioned " upon satisfactory evidence of the death of said member and the surrender of this certificate; " and is also upon condition, among other things, " that said member complies with the laws, rules, and regulations now governing this order, or that may hereafter be enacted for its government, and is in good standing at the time of his death."

We may lay out of view the objections made by the defendant, now for the first time in this court, that the plaintiff has made no proof of death, and has not surrendered the certificate, as therein required. This is not necessary where the defendant admits the death and denies its liability upon other grounds, and where the certificate is itself put in evidence and surrendered in court in an action upon it, and even embodied in the record to be sent up on writ of error, as in this case. By contesting its liability under a general denial, upon the sole ground that the deceased was not a member in good standing at the time of his death, the defendant has waived the right to make such an objection.

In respect of the provision of the certificate, that the member to whom it is issued must be a member in good standing at the time of his death, we may also say, in passing, that, while the burden is upon the plaintiff, in an action of this kind, to show that the deceased member was in such good standing at the time of his death (Seibert v. Chosen Friends, 23 Mo.App. 268, 275), yet the certificate is proof of good standing at the time when it was issued, and such good standing will be presumed to have continued until the contrary is made to appear. It follows that, in such an action, when the certificate is put in evidence, the burden is upon the defendant to show that, at the time of his death, the member had lost his good standing. Supreme Lodge v. Johnson, 78 Ind. 110; Ziegler v. Mutual Aid Society, 1 McGloin [La.] 284.

We shall also prepare the way for the statement of the ground upon which we decide this case, by the further observation, that in these cases the courts act upon the principle that the non-payment of assessments does not work a forfeiture of the rights secured by such a benefit certificate, unless the member received notice of the assessments, except in those cases where the laws of the society provide for a suspension ipso facto, in the event of non-payment, irrespective of notice. Borgraefe v. Knights of Honor, 22 Mo.App. 127, 143; Seibert v. Chosen Friends, 23 Mo.App. 268. Here, the laws of the defendant corporation, which were put in evidence, show that a member cannot be suspended for non-payment of assessments without notice; and, as it is not pretended that James Mulroy did not pay all the assessments of which he had notice this theory of the defence entirely fails. Supreme Lodge v. Johnson, 78 Ind. 110; Hall v. Supreme Lodge, 24 F. 450, 455.

The turning-point in the case, therefore, is, whether James Mulroy was lawfully expelled from the order on the tenth of November, 1884. In determining this question we must also lay out of view a number of considerations which have been pressed upon us in argument, which either have no...