Reed v. Bankers Union of World

• Decision Date: 08 January 1907
• Citation: 99 S.W. 55,121 Mo.App. 419
• Parties: REED, Respondent, v. BANKERS UNION OF THE WORLD, Appellant
• Court: Missouri Court of Appeals

99 S.W. 55

121 Mo.App. 419

REED, Respondent, v. BANKERS UNION OF THE WORLD, Appellant

Court of Appeals of Missouri, St. Louis

January 8, 1907

Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.

AFFIRMED.

STATEMENT.--This action is on policy No. 69082 for the sum of one thousand dollars, issued by defendant, insuring the life of Helen M Reed for the benefit of plaintiff, who was her husband. Mrs Reed died June 9, 1904. The petition alleges, and the answer admits, that defendant is a fraternal beneficiary order incorporated and having its chief office in the city of Omaha, in the State of Nebraska. The answer also admitted the issuance of the policy sued on, and pleaded, as a special defense, that the policy was forfeited on account of the failure of Helen M. Reed to make payments of her regular monthly dues on the first day of May and June, 1904, as required by the constitution and by-laws of the order which formed a part of the contract. Section C, Division 5, of the by-laws read in evidence is as follows:

"Provides that on the first day of each month the regular monthly dues Supreme Lodge per capita tax, and premiums are due and payable from each member of the Bankers Union. No notice of these regular payments of dues, per capita tax and premiums is required. Any member failing to pay the same, on or before the first day of the month, shall stand suspended. And such suspension shall date from the time such payment shall become due. During such suspension, his policy shall be null and void. Should any member pay Supreme Lodge dues and premiums to the secretary, due during any month, at a later day than the first day of the month, the separate report shall be made, giving the date and amount so paid, and sending in the names of such members for reinstatement. Such members must furnish a health certificate satisfactory to the Supreme President or Supreme Secretary before they can be reinstated."

Section C, division 8, of the by-laws, providing that any member who shall fail to pay his premiums, per capita tax, or his dues as required, shall stand suspended, and during such suspension his policy shall be null and void, was also read in evidence, as were the following:

Section B, same division, which provides "that any member suspended for non-payment of premium or dues, wishing to be reinstated, if in good health, and not engaged in any of the prohibited occupations, shall make application for reinstatement, and pay all arrearages of every kind within sixty days from the date of suspension. But the member cannot be reinstated or any liability created by any subsequent payment made while the member is not in good health. A certificate of good health must be furnished to and accepted by the supreme secretary, and a certificate of reinstatement issued by him before such reinstatement shall be valid."

Section F, division 9, provides "that in case no lodge is accessible the member may remit his benefit premiums and general fund dues direct to the supreme office, when a receipt therefor shall be issued to him which shall have the same effect as if same payments have been made to the lodge of which such person is a member. But such payments must reach the supreme office within the same limit of time in which the members are required to pay the local secretary."

The subordinate lodge of the order (Fair Grove No. 140) of which Helen M. Reed was a member, was suspended prior to April 1904. In May and June Mrs. Reed was sick and she and her husband directed their nephew, George T. Hines, to transmit the monthly dues to the supreme secretary at Omaha. The dues were seventy cents per month. For the month of May, 1904, a remittance was made on May 8th but was not received until the twentieth; for the month of June, the dues were sent to the supreme secretary on the sixth of the month. F. H. Drake was supreme secretary from May 11th to June 15, 1904, and on June 7, 1904, wrote Mrs. Reed as follows:

"Mrs. Helen M. Reed,

"Fair Grove, Mo.

"Dear Madam: Your remittance of seventy cents received here on May 20th. I find it is somewhat late for your assessment, and ask that you kindly sign the inclosed health certificate and return, so that we may give you credit for this remittance.

"Yours very truly,

"F. H. DRAKE,

"Supreme Secretary."

This letter was received by plaintiff, who testified that he also received a receipt for the May assessment.

Miss Margaret Murdock, who succeeded Drake as supreme secretary, testified that she has the custody of the books, showing the accounts of members that have paid direct to the home office, and those records show the May payment by Helen M. Reed was received at the home office on May twentieth, and that that payment was for the month of May; that the company received Helen M. Reed's dues for the month of June, same year, 1904, on the sixth day of June. Miss Murdock also testified that she notified Mrs. Reed that as her payments came subsequent to the first day of each month, it would be necessary for her to execute and return a health certificate; that her letter to Mrs. Reed, notifying her the company required a health certificate, bore date of June 28th, and that there never was a health certificate received from Helen M. Reed, and on June 29th she returned George T. Reed the two payments of dues of May and June.

On June 25, 1904, Miss Murdock wrote the following letter to insured:

"Mrs. May Reed,

"Fair Grove, Mo.

"My Dear Madam: In checking up remittances that have been received in the past thirty days, and which would have been acknowledged before this time, and owing to the fact that we have been remodeling our offices, repairing, etc., we have needed to allow our business to stand except just what demanded immediate attention. We find your payment of seventy cents for the month of June, also find that your May payment was held awaiting the signing by you of a health certificate, and if you will kindly sign it and return to us at once, we will see that you are credited for both months, for which you have made remittance.

"Yours very truly,

"M. MURDOCK."

This letter plaintiff also received.

Miss Murdock further testified that she returned the assessments of May and June, amounting to one dollar and forty cents, to plaintiff, by inclosing the amount in postage stamps in a letter, which she addressed to plaintiff at his post office (Fair Grove, Missouri), and put in the mail. Plaintiff testified he never received this letter and that the dollar and forty cents was never paid or tendered to him. The cross-examination of Miss Murdock by the court (to whom the issues were submitted, without the aid of a jury) indicates that it had some doubt of the correctness of Miss Murdock's evidence, in regard to the return of the one dollar and forty cents; for while she was quite positive she inclosed the dollar and forty cents in stamps in a letter and mailed the letter to plaintiff, she testified from certain memoranda which indicate that she may have been mistaken. This witness also testified that she mailed a blank health certificate to Mrs. Reed. Mrs. Reed was a consumptive and hence was unable to sign a certificate of good health, and neither of the certificates mailed to her by Drake or Miss Murdock were ever signed or returned to defendant. According to Miss Murdock's testimony, neither the May nor June assessments were ever credited on the defendant's books.

In respect to the duties of the supreme secretary, the by-laws provide:

"1. He shall issue and deliver a receipt for all moneys received by him, and retain stubs of the same, which shall be submitted to the Auditing Committee, and thereafter be kept subject to the order of the Board of Directors.

"2. He shall issue and deliver all orders on the Supreme Banker, and retain stubs of the same, which shall be submitted to the Auditing Committee, and thereafter be kept subject to the order of the Board of Directors.

"3. He shall, as soon as received and credited on his books, forward to the Supreme Banker all moneys received by him, and shall take his receipt for the same.

"4. He shall, as soon as he has knowledge of any suspension, mail to the suspended member a notice of suspension, with instructions how to become reinstated, which notice, however, shall not be construed as a part of the process of suspension or reinstatement."

At the close of the evidence, defendant moved the court to grant certain declarations of law, one of which was in the nature of a demurrer to plaintiff's evidence. The court refused to declare the law as requested by defendant and no other declarations of law were asked or given. The court found for plaintiff and rendered judgment in his favor for the amount of the policy.

Judgment affirmed.

G. G. Lydy for appellant.

(1) By the express terms of the benefit certificate in this case the policy, the articles of incorporation, constitution and by-laws, rules and regulations of the defendant, and the application for...