Sheridan v. Modern Woodmen of America

• Decision Date: 27 October 1906
• Citation: 87 P. 127,44 Wash. 230
• Parties: SHERIDAN v. MODERN WOODMEN OF AMERICA.
• Court: Washington Supreme Court

87 P. 127

44 Wash. 230

SHERIDAN v. MODERN WOODMEN OF AMERICA.

Supreme Court of Washington

October 27, 1906

Appeal from Superior Court, Snohomish County; W. W. Black.

Action by Lulu L. Sheridan, by Tillie Hewitt, her guardian, against the Modern Woodmen of America. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded, with instructions to dismiss the action.

Emery Rourke & Denney, and Ben. D. Smith, for appellant.

Bostwick & Mulvihill, for respondent.

CROW J.

Action by the plaintiff, Lulu L. Sheridan, by Tillie Hewitt, her guardian, upon a benefit certificate issued by the defendant to one Hiram D. Sheridan, now deceased. The certificate, which was issued April 19, 1900, named as beneficiary the plaintiff, Lulu L. Sheridan, minor daughter of Hiram D. Sheridan and Tillie Hewitt. At the date of the certificate Lulu's father and mother had been divorced and her mother had subsequently married. The plaintiff contends that, during the month of December, 1901, while Hiram D. Sheridan was in good standing, he became insane that in March, 1902, he was committed to an asylum where he remained until his death in June, 1904; that in December 1901, on discovering such insanity, Tillie Hewitt, the plaintiff's mother, gave notice thereof by letter to the clerk of the defendant's local camp at Libby, Mont., advising him that, if Mr. Sheridan failed to pay his assessments, she wished to be notified so that she might pay for the benefit of her daughter; that, in response the clerk wrote Mrs. Hewitt that Mr. Sheridan's assessments were then paid in advance, that when further assessments became due he would notify her, and that he regretted to learn of the insanity of Mr. Sheridan; that the clerk afterwards failed to notify Mrs. Hewitt of assessment No. 1 for January, 1902; that Sheridan was suspended for its nonpayment; that by reason of the failure of the clerk to notify Mrs. Hewitt, such suspension was void; that no subsequent notice was given Mrs. Hewitt; and that the certificate, therefore, remained in full force at the date of Sheridan's death. The defendant claims that due notice of assessment No. 1 for January, 1902, was given to the assured by the clerk of the head camp in the manner provided by the contract; that he failed to pay the same and became ipso facto suspended on February 2, 1902; that he was never reinstated; that no notice was given the defendant of the insanity of the insured prior to his suspension; that insanity is no excuse for nonpayment of assessments; and that the alleged notice of insanity and the clerk's alleged promise to inform Mrs. Hewitt of nonpayment conferred no rights upon the plaintiff, nor did they impose any duty upon the defendant. Prior to the commencement of this action, the plaintiff tendered to the defendant all dues and assessments which had matured between January 1, 1902, and June 1, 1904, amounting to $27.30. This tender was refused; the defendant denying liability on the certificate. On trial the jury found a verdict in favor of the plaintiff for $1,972.70, and from the judgment entered thereon, this appeal has been taken.

The appellant, with other assignments of error, contends that the trial court erred (1) in denying its motion for a nonsuit and (2) in denying its motion for a directed verdict. The pleadings and evidence show that the appellant is a fraternal mutual benefit association, organized under the law of Illinois, with its head camp at Rock Island, and with numerous local camps throughout Illinois and other states; that it is organized on the lodge plan, having a ritualistic form of work, and also certain fraternal, social, and indemnity features. Hiram D. Sheridan was a member of the local camp at Libby, Mont. By the terms of his certificate, the appellant agreed in case of his death to pay to the respondent as beneficiary the sum of $2,000, subject to certain conditions therein stated; one of which was that if assessments against the assured should not be paid to the clerk of the local camp on or before the first of the month following the date of notice of the same, then the certificate should be null and void. The by-laws provided that every beneficial member who after notice should fail to pay any assessment on or before the first of the following month, or who should fail to pay dues in advance on or before the 1st day of April, July, October, or January, should ipso facto become suspended; that during such suspension his benefit certificate should be absolutely null and void; that a suspended member might be reinstated within 60 days upon payment of all arrearages, together with all fines, dues, and assessments maturing subsequent to default, provided that he was then in good health and furnished the clerk of the local camp a written certificate to such effect signed by himself; that a beneficiary member in suspension for more than 60 days but less than six months, if in good health, might be reinstated upon furnishing a certificate of good health from the camp physician after medical examination duly approved by the head physician, and upon payment of all arrearages; that no officer of any local camp was authorized or permitted to waive any of the provisions of the laws of the society relating to the contract for the payment of benefits; that no officer of any local camp should have the right or power to waive any of the provisions of the by-laws of the society; that the clerk of the local camp was declared to be the agent of such camp, and not the agent of the head camp; that no act or omission on his part should have the effect of creating a liability on the part of the society or of waiving any right or immunity belonging to it, and that he should not collect or receive assessments or dues from a beneficiary member who has been suspended, except upon reinstatement in the manner above mentioned. All by-laws of the society were, by the express terms of the certificate, made a part thereof. No payment of any assessments or dues maturing after December 1, 1901, was made by Sheridan or any other person at any time prior to his death in June, 1904, nor were any tendered except on the one occasion hereinafter mentioned. The respondent's witnesses testified that, in December, 1901, Mrs. Hewitt wrote a letter to the clerk of the local camp, advising him of the insanity of Sheridan, and requesting him to notify her so that she might pay the assessments in the event of the failure of Sheridan to do so; that the clerk, answering this letter, stated the assessments were then paid in advance, and that he would keep her notified; that by reason of the failure of the clerk to give her any further notice, she failed to pay the assessment levied in January, 1902, not knowing that it had been levied; that in February, 1902, the clerk by letter advised her of the suspension of Sheridan for nonpayment of the January assessment, and sent her...