Patton v. Women of Woodcraft

• Decision Date: 22 April 1913
• Citation: 65 Or. 33,131 P. 521
• Parties: PATTON v. WOMEN OF WOODCRAFT.
• Court: Oregon Supreme Court

131 P. 521

65 Or. 33

PATTON v. WOMEN OF WOODCRAFT.

Supreme Court of Oregon

April 22, 1913

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Harry L. Patton against the Women of Woodcraft. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an appeal from a judgment in favor of plaintiff, Harry L Patton, against the Women of Woodcraft. The action is based on a benefit certificate of insurance issued on March 21 1906, by the defendant to James J. Patton, a member of Mystic Circle No. 24, at Baker, Or. The organization consists of a Grand Circle, and local circles. The supreme authority of the organization is exercised by the Grand Circle, sessions of which are held at certain periods. Its powers are vested in the Executive Council, which is authorized to transact all business which cannot reasonably be delayed until the Grand Circle session, provided, however, that the Council shall not alter or change the constitution. The membership of the organization consists of benefit and social members. Only the benefit members have any part in the insurance fund. The Grand Circle has no independent membership, but all who are in good standing in local circles are members of the organization. The benefit certificate provided that James J Patton was entitled to have his beneficiaries participate in its benefit fund after his death, when in good standing, and not otherwise, in the amount of $1,000, and no more, should his death occur within one year after the date of the certificate, and in the sum of $2,000, should death occur after one year from the date of the certificate, or to the proceeds of one benefit assessment. The certificate was made expressly subject to all the conditions indorsed thereon which were made a part thereof, and to all the conditions of the constitution of the association and the by-laws of the circle. It contained the clause that "it shall not be in force at any time when said James J. Patton stands suspended and is not in good standing. ***" Plaintiff, Harry L. Patton, a son, was named as a beneficiary to the amount of $1,000.

The complaint sets forth the certificate given, with all the conditions indorsed thereon, and states that James J. Patton fully performed all the terms, covenants, and conditions of the contract of insurance on his part; that he died on the 21st day of August, 1908; and that due proof of such death was made to the defendant, as prescribed by the certificate, rules, and by-laws of the defendant. The defendant answered, admitting the corporate character of the defendant, the issuance of the benefit certificate, the death of James J. Patton, and that due proof of such death was made, and denying that James J. Patton had fully complied with all the terms and conditions of the contract. The defendant further alleged "that on the 1st days of March, April, and May of the year 1908 there was due from said Patton said assessment of one dollar sixty cents ($1.60), which said Patton wholly failed to pay prior to his death, whereby said Patton became suspended on the 28th day of April, and was never reinstated." The reply put in issue the new matter of the answer, and averred that all defaults, if any, in the payment of assessments on the 28th day of March, April, and May, 1908, and the failure of James J. Patton to sign and deliver a reinstatement blank, as required by the rules, were waived by defendant by receiving and accepting from James J. Patton, prior to his death, the full amount of the assessments for those months, and by demanding, receiving, and accepting his assessments for June, July, and August of that year, with full knowledge as to any prior default.

Frank S. Grant, of Portland (Lyman E. Latourette, of Portland, on the brief), for appellant.

C.M. White, of Portland (Farrington & Farrington, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

On the trial plaintiff introduced in evidence the benefit certificate issued by defendant, and rested. Thereupon defendant moved for a nonsuit, which was denied by the court. This ruling defendant assigns as error. Evidence was thereafter introduced by the defendant, and the court directed the jury to find a verdict in favor of plaintiff; therefore, in considering the error assigned, we are at liberty to examine the whole of the evidence which is contained in the bill of exceptions, even if the same were insufficient to be submitted to a jury. Jennings v. Trummer, 52 0r. 149, 96 P. 874, 23 L.R.A. (N.S.) 164, 132 Am.St.Rep. 680; Grindstaff v. Merchants' Inv. & Trust Co., 61 Or. 313, 122 P. 46; Trickey v. Clark, 50 Or. 516, 93 P. 457; Crosby v. Portland Ry. Co., 53 Or. 496, 100 P. 300, 101 P. 204; Hofer v. Smith, 129 P. 761. The instructions of the court to the jury to return a verdict in favor of plaintiff is assigned as error by the defendant. This necessarily includes the question regarding the nonsuit.

The defendant called J.L. Wright, Grand Clerk of the Women of Woodcraft during the time that James J. Patton held the certificate, as witness. A copy of the constitution of the Women of Woodcraft was identified by him and introduced in evidence. He testified that he was the custodian of the records, and that Lillian C. White was clerk of Circle No 24, at Baker, Or.; that she reported to him the assessments collected; that the March report was received April 10, 1908, and that after the name of James J. Patton the word "delinquent" was written; that with the report for April there were two assessments for James J. Patton, one for March and one for April, amounting to $3.20; that these amounts were returned to the clerk of the local circle; that a similar report was made for May; that in the report for June the local clerk remitted three assessments, amounting to $6.05, for the months of April, May, and...