Petherick v. Order of the Amaranth

• Decision Date: 23 September 1897
• Citation: 72 N.W. 262,114 Mich. 420
• Court: Michigan Supreme Court
• Parties: PETHERICK v. ORDER OF THE AMARANTH.

72 N.W. 262

114 Mich. 420

PETHERICK v. ORDER OF THE AMARANTH.

Supreme Court of Michigan

September 23, 1897

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Mary Teagan Petherick against the Order of the Amaranth. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Sidney T. Miller, for appellant.

Maybury & Lucking, for appellee.

MONTGOMERY J.

Action on mutual benefit certificate. Plaintiff, the beneficiary named in the certificate, recovered. Defendant brings error. The defenses relied upon in this court are suspension for nonpayment of assessment, failure to pay dues which it is claimed suspend the right to benefits ipso facto, and error in excluding evidence of statements made by deceased. It is further claimed that failure to pay assessments operated to suspend the right to benefits without any formal suspension.

1. An attempt was made to suspend the member for nonpayment of assessment No. 21.

The jury must have found that this assessment had been paid out of a fund provided for that purpose by the members of the lodge to which deceased belonged. There was ample testimony to support this claim. It is stated in the brief of defendant's counsel that there was a mistake made in referring to the assessment as assessment No. 21. We cannot discover that any such theory was disclosed at the trial.

2. It is further contended that the delinquency of the member and the failure to pay dues for more than three months operate to bar the beneficiaries of benefits. The general constitution on this subject reads as follows: "If the member is delinquent for one or more assessments already called to the benefit fund, or three months or more in arrears at the time of his death, accident, or total disability, the beneficiary or beneficiaries shall not be entitled to the benefits from said fund." The provisions of the constitution of the local chapter were as follows: "Any member failing to pay his dues to this assembly within the first month of the quarter shall be declared in arrears, and shall not be entitled to vote, hold office, or receive the password; and if his dues for the quarter are not paid on or before the last meeting night of said quarter, the fact shall be announced by the financial secretary in open assembly; and if the dues are not paid on or before the next meeting, he shall be declared by the assembly suspended from the benefits of the order." It is claimed by plaintiff's counsel that no question of arrearage of dues was tried in the court below, and that no such proof was offered by defendant, and that the opening of counsel was silent on this point. It does appear that no such claim was made in the opening, but it does not follow that the defense was foreclosed if the question was subsequently presented by testimony, or if defendant's contention made on the trial was sound. At the close of the trial, defendant's counsel called attention to section 1, law 3, above quoted. The court then said: "There is no claim here, as I understand it, that he had been in arrears for more than three months." The defendant's counsel replied "In dues? There certainly is. It is part of the business of plaintiff's counsel to show that he was paid up in dues at the time of his death." Previous to this there had been a request preferred to take the case from the jury on the ground that plaintiff had not shown that deceased was in good standing at the time of his death. It is contended that the burden was on plaintiff to show that deceased was not in default as to dues at the time of his death. The question was sufficiently raised, but we think such is not the rule. The case of Siebert v. Chosen Friends, 23 Mo.App. 268, is cited to sustain the contention. In this case the question was which party was entitled to the opening and closing to the jury. The court did say that "the central question was whether, at the time of her death, Gertrude Siebert was a member in good standing. The affirmative of this issue belonged to plaintiff, and the court's ruling (according to plaintiff's counsel, the opening and closing) was correct." But the same court, in Mulroy v. Knights of Honor, 28 Mo.App. 468, and again in Stewart v. Legion of Honor...