National Council of Knights and Ladies of Security v. Smiley

• Decision Date: 14 February 1924
• Parties: NATIONAL COUNCIL OF THE KNIGHTS AND LADIES OF SECURITY v. SMILEY et al.
• Court: Florida Supreme Court

100 So. 153

87 Fla. 139

NATIONAL COUNCIL OF THE KNIGHTS AND LADIES OF SECURITY v. SMILEY et al.

Florida Supreme Court

February 14, 1924

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Nixon J. Smiley and others, by P. N. Strickland, their next friend, and another, against the National Council of the Knights and Ladies of Security. Judgment for plaintiffs, and defendant brings error.

Reversed and remanded.

(Syllabus by the court.)

COUNSEL

Baker & Baker, of Jacksonville, for plaintiff in error.

Butler & Boyer, of Jacksonville, for defendants in error.

OPINION

TERRELL J.

Nixon J. Smiley, Irene Morris, and Sam Morris, minors, by P. N Strickland, their next friend, and Elizabeth Strickland, sued the National Council of the Knights and Ladies of Security in an action at law in Duval county.

The declaration is in two counts; the first count in substance alleging that the National Council of the Knights and Ladies of Security on the 11th day of September, A. D. 1917, at Topeka, Kan., made and executed its certain instrument in writing, commonly called a policy of life insurance, and for a good, valuable, and sufficient consideration paid to it by Ruby Smiley, of Baldwin, Fla., delivered the same to said Ruby Smiley, thereby then and there agreeing to pay to the plaintiffs, in the event of the death of the said Ruby Smiley, the sum of $2,000, as per terms stated in the said policy attached to and made a part of the declaration as Exhibit A.

It is further alleged that after the delivery of said policy, on October 15, A. D. 1918, in Charleston, S. C the said Ruby Smiley departed this life; that on the 25th day of November, A. D. 1919, the plaintiffs gave to defendant notice of the death of said Ruby Smiley; that on February 22 1919, plaintiffs furnished to defendant proof of the death of the said Ruby Smiley; that the said Ruby Smiley during her lifetime kept, performed, and complied with all the terms, provisions, and conditions of the said policy; and that plaintiffs have at all times kept, performed, and complied with all the terms and provisions of the said policy required by them to be kept and performed.

It is further alleged that by reason of the foregoing facts defendant became liable to the plaintiffs in the sum of $2,000, according to the terms of said policy, with interest thereon at 8 per cent. per annum from date of furnishing notice and proof of death; that, although often requested by plaintiffs to pay the said sum as provided in said policy, defendant has wholly neglected and refused to pay the same, or any part thereof, to the damage of the plaintiffs in the sum of $4,500.

The second count of the declaration is the same as the first count, except it alleges that plaintiffs are entitled to recover attorney's fees.

To the foregoing declaration defendant interposed four amended pleas, which are in substance that defendant is a fraternal beneficiary society, organized and existing under the laws of Kansas and authorized to do business under the laws of Florida; that it has a representative form of government, with ritualistic work; that for mutual convenience its members are grouped together in lodges, called subordinate councils; that for government and control its members have adopted a constitution and by-laws; that by the constitution and by-laws so adopted the application for membership in its beneficiary department by Ruby Smiley and the beneficiary certificate or policy attached to the declaration constitute the contract between the parties; that it is provided in the beneficiary certificate or policy as a condition precedent for any recovery that Ruby Smiley should have complied prior to her death with the constitution and laws of defendant required to be complied with by her, which she did not do, in that she did not pay the monthly assessments for the months of May, June, July, August, and September, 1918, to wit, the sum of $1.45 per month, as per terms, conditions, and penalties prescribed in laws 103, 104, and 112 of defendant, by reason of which the said Ruby Smiley in her lifetime was suspended, and forfeited all her rights under the said policy as provided in defendant's laws, section 112, the pertinent part thereof being as follows:

'Sec. 112. Members Suspended by Their Own Act.--The financier of each subordinate council shall keep a book wherein all regular and special assessments and dues received from each member holding a valid certificate shall be credited. Such entries shall be made showing the date when actually received by the financier. All assessments for every month shall become due and payable on the 1st day of the month. The certificate of each member who has not paid such assessment or assessments and dues on or before the last day of the month shall by the fact of such nonpayment, stand suspended without notice, and no act on the part of the council or any officer thereof, or of the National Council, shall be required as essential to such suspension, and all rights under said certificate shall be forieited.'

It is further alleged in the amended pleas that the beneficiary certificate or policy provided that Ruby Smiley should be a member of defendant in good standing at the time of her death to entitle her beneficiaries to recover on same, and that, for reasons stated in laws 103, 104, and 112 herein, she was not in good standing at the time of her death, but had in fact been suspended. It is further alleged that prior to execution of said certificate or policy Ruby Smiley filed application therefor, in which she agreed that, should she cease to be a member of the order, by suspension, expulsion, or otherwise, she would forfeit all claim to any funds of the defendant.

The fourth amended plea alleged defendant's right to certain credits against the policy, which were recognized in the verdict and judgment. This plea need not, therefore, be further considered here.

Issue was joined on the foregoing amended pleas, the case went to trial, and the jury returned a verdict for plaintiffs in the sum of $1,502, with interest at 8...