Sharp v. Supreme Council of Royal Arcanum

• Decision Date: 06 March 1923
• Docket Number: No. 17524.,17524.
• Citation: 251 S.W. 159
• Parties: SHARP v. SUPREME COUNCIL OF ROYAL. ARCANUM.
• Court: Missouri Court of Appeals

251 S.W. 159

SHARP v. SUPREME COUNCIL OF ROYAL. ARCANUM.

No. 17524.

St. Louis Court of Appeals. Missouri.

March 6, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by Louise A. Sharp against the Supreme Council of the Royal Arcanum. Plaintiff was nonsuited, and from order sustaining plaintiff's motion to set aside the nonsuit, defendant appeals. Affirmed, and cause remanded.

F. H. Bacon, of St. Louis, for appellant. Eugene Hale, of St. Louis, for respondent.

DAUES, J.

This is an action on a fraternal benefit certificate, defended on the ground of the member's suspension for nonpayment of assessments. At the close of the trial before a jury, plaintiff was forced to a nonsuit by the court's announced intention to give a peremptory instruction for the defendant. Thereafter the court sustained plaintiff's motion to set aside the nonsuit, from which action of the court defendant appeals.

The petition is in usual form. It alleges that the defendant is a foreign insurance corporation operating on the assessment plan; alleges that the defendant issued a certificate to Louis James Sharp for $3,000 in which plaintiff is the beneficiary; alleges that the certificate was in full force and effeet at the time of the death of Sharp November 5, 1917, and that he had paid in dues, assessments, and fines enough money to keep said policy alive and in force to the date of his death; sets up the policy or certificate, alleging that no part of same has been paid; and prays for the sum of $3,000.

The answer, after admitting that defendant is a fraternal beneficiary society, avers that the certificate was issued as alleged in the petition, and that the policy was payable only upon the condition that the insured should be a member in good standing at the time of his death and have complied with all the laws, rules, and regulations of the order. The answer then sets up certain of its laws as constituting a part of the contract sued upon, among which is the provision that a member over 65 years of age and having a benefit certificate for $3,000 shall on or before the last day of each month, without notice, pay to the collector of the council of which he is a member an assessment of $16.08, and providing that the member shall have the I privilege of paying one-half of such assessment in cash and charging the remaining half against his benefit certificate. There is a further provision that, unless such assessment is paid before 10 o'clock p. m. of the last day of each month, the member shall stand suspended from the order, and the benefits on such certificate shall become void. It is then averred that the insured failed to comply with the laws of the order, in that neither he nor any one else for him paid the required amount due under the certificate before the last day of October, 1916, and that thereupon he stood suspended, upon that date; that Sharp having failed to pay his monthly assessment for October, 1916, and having knowledge of such suspension failed to avail himself of the privilege of reinstatement, and having failed to pay the assessment for 12 months after his suspension, he thereby acquiesced in said suspension, and plaintiff is estopped from maintaining this action.

The reply is a general denial and plea that defendant by its by-laws and dealings with the deceased waived the payment of assessments, dues, and fines on the day fixed, and permitted assessments and dues to be paid at other times than at the end of each month.

The record is unduly clogged by the continual wrangle of counsel. However, this appears clear: Plaintiff in support of the issues in her behalf introduced a stipulation between the parties which recites that plaintiff is the widow of Louis James Sharp, the insured person named in the policy, and that Sharp died November 5, 1917, and that plaintiff's Exhibit A is the certificate issued to said Louis James Sharp in his lifetime signed by the parties. Exhibit A is the policy held by the insured and then in possession of the beneficiary. With this plaintiff rested.

Defendant offered its certificate of incorporation under the laws of Massachusetts; offered its license from the insurance department of Missouri authorizing it to do business as a fraternal beneficiary society in this state covering the period touched by this controversy; offered its constitution and bylaws, among which is the provision that no person shall be admitted to membership except he is between the ages of 18 and 50 years; that each member admitted prior to July 1, 1912, shall, when he has attained the age of 65 years, pay assessments for that age, that is, the rate for' the age of 35 years, which, according to the table, was an assessment of 516.08 per month. The by-laws contained the further provision that each member shall pay to the collector, without notice, 12 regular assessments in each calendar year, one of which shall be due on the 1st day and payable before 10 o'clock p. m. of each calendar month. It further provides that any member failing to pay any regular assessment when due shall stand suspended from the order and from the benefits therein and provides for the notification to the Supreme Council of the suspension of a member, and that the council may loan a member the amount of the assessment as a gift, and also provides for reinstatement by compliance of certain provisions by the members over 65 years of age who have been suspended.

Defendant then produced oral and documentary evidence tending to show that Sharp did not pay the assessment for October, 1916, and that he had been suspended; that Sharp acquiesced in his suspension and had abandoned the order. Considerable oral evidence was introduced by the defendant to show these facts.

Edward Troy testified for defendant that he was collector of Benton Council, which was the name of the council in which Sharp was a member; that Sharp's last assessment paid was for the month of August, 1916; that the September, 1916, assessment was advanced by the council; and that he sent a notice to the Supreme Council of Sharp's suspension. This notice was introduced in evidence and dated November 15, 1916, and recites that the assesment due before 10 o'clock p. m. on the 31st day of October, 1916, had not been paid and that the member stood suspended.

On cross-examination this witness testified that the secretary of the council would use his judgment as to whether and how long a member should be carried by the council before being suspended, and that such matter was largely left to the discretion of the collector and secretary as to whether such member should be suspended or carried by the council.

Another witness, Braun, testified for the defendant that he kept the record of the meeting of November, 1916, which contained the entry that Sharp failed to pay the assessment for October, 1916, and thereby stood suspended from the order.

In rebuttal, plaintiff produced James C. Comfort, who knew the insured well, and who was a member of Benton Council and...